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(109 U. 8. 1)

OSBORNE, Jr., v. COUNTY OF Adams, in the State of Nebraska.

(October 15, 1883.)

COUNTY BONDS-STEAM GRIST-MILL NOT A PUBLIC IMPROVEMENT-REHEARING

DENIED.

A steam grist-mill is not a work of internal improvement within the meaning of

the statute of Nebraska, approved February 15, 1869, authorizing counties, cities, and precincts of organized counties “to issue bonds to aid in the con

struction of any railroad or other internal improvement." Traver v. Merrick Co. 15 N. W. Rep. 690, distinguished.

In Error to the Circuit Court of the United States for the District of Nebraska.

Adna H. Bowen and Mott Ames, for petition.
No counsel in opposition.

HARLAN, J. This case was decided at the last term of this court, and is reported in 106 U. S. 181; [S. C. 1 Sup. Ct. REP. 168.] We there held that a steam grist-mill was not a work of internal improvement, within the meaning of the statute of Nebraska, approved February 15, 1869, authorizing counties, cities, and precincts of organized counties "to issue bonds to aid in the construction of any railroad or other work of internal improvement.” It was also said that the court was not justified by anything in Township of Burlington v. Beasley, 94 U. S. 310, or in the decisions of the courts of Nebraska, “in holding that a steam or other kind of grist-mill is of the class of internal improvements which municipal townships in that state are empowered, by the statute in question, to aid by an issue of bonds."

A petition for rehearing was filed near the close of the last term, calling our attention to the fact that the supreme court of Nebraska had then recently decided that a grist-mill operated by water-power was a work of internal improvement within the meaning of the before-mentioned statute. The judgment was suspended in order that appellee might have an opportunity of presenting the full text of the opinion of the state court. That has been done at the present term. The case to which reference is made is Traver v. Merrick Co. 15 N. W. Rep. 690, the opinion in which was not filed in the state court until after the close of our last term.

It is quite true, as claimed by counsel for appellee, that the state court does, in that case, rule that a water grist-mill is a work of internal improvement within the meaning of the statute in question. But the court takes care to say:

“In our view there is a clear distinction between aiding the development of the water-power of the state—a power that is continuing in its nature and may be used without cost or expense, and must be used at certain points on a stream where a dam can be erected and power obtained—and a mill propelled by steam, that must be attended with a continuous cost for fuel, and may at any time be moved to another locality."

So far from the decision of the state court furnishing any ground for a rehearing, it is an authority in support of that construction of the act of 1867 which excludes steam grist-mills from the class of internal improvements in aid of which counties, cities, and precincts of organized counties are, by the statute, authorized to issue their bonds. The rehearing is denied.

(109 U. S. 146)

UNITED STATES V. MITCHELL.

(November 5, 1883.)

COMPENSATION OF INDIAN INTERPRETERS APPROPRIATIONS OF MARCH 3, 1877

AND 1881–REV. ST., $ 2070, REPEALED.

As section 2070 of the Revised Statutes, fixing the salaries of Indian interpreters

in Oregon, Utah, and New Mexico was repealed by the later Indian appropriation acts, beginning with March 3, 1877, and coming down to the act of March 3, 1881, an interpreter cannot recover for services rendered between those dates at the rate fixed by that section, but only at the rate fixed by the appropriation acts.

year each."

Appeal from the Court of Claims. • This was a suit by the appellee, Charles Mitchell, to recover a balance which he claimed to be due him as Indian interpreter at the Santee agency in the state of Nebraska, under section 2070, title 23, of the Revised Statutes. That section, and section 2076, which constitutes part of the same title, and also relates to the compensation of interpreters, are as follows:

Sec. 2070. “The salaries of interpreters lawfully employed in the service of the United States in Oregon, Utah, and New Mexico, shall be five hundred dollars a year each, and of all so employed elsewhere, four hundred dollars a

Sec. 2076. “ The several compensations prescribed by this title shall be in full of all emoluments and allowances whatsoever."

It appears from the findings of the court of claims that the appellee was an interpreter at the Santee Indian agency in the state of Nebraska, duly appointed under section 2068 of the Revised Statutes, and that he held the office and discharged its duties for several periods between July 1, 1878, and November 22, 1882, his whole term of service amounting to three years and seven months. During all this time, instead of the salary of $400 per annum, as provided in section 2070, he was paid only at the rate of $300 per annum, for which he gave a receipt in full for his services, congress having appropriated that sum only for his yearly compensation during his term of sery

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ice. The appellee, contending that he was entitled to a salary at the rate of $400 per annum, brought this suit to recover the difference between his salary at that rate and the sum which he was actually paid. The court of claims, adopting the views of the appellee, ren. dered a judgment in his favor for $353.33, from which the United States appealed. Asst. Atty. Gen. Simons and J. S. Blair, for appellant. Geo. A. King, for appellee.

Woods, J. It is contended on behalf of the United States that, by the appropriation acts which cover the period for which the appellee claims compensation, congress expressed its purpose to suspend the operation of section 2070 of the Revised Statutes, and to reduce for that period the salaries of the appellee and other interpreters of the same class from $400 to $300 per annum. We think this contention is well founded.

The law fixing the salaries of interpreters, as found in section 2070 of the Revised Statutes, was first passed in the Indian appropriation act of February 27, 1851, (9 St. 587.) That act appropriated a gross sum for the pay of interpreters authorized by the act of June 30, 1834, (4 St. 735,) and declared that the salaries of interpreters employed in certain named territories should be $500, and in all others $400 per annum. From the passage of that act down to the passage of the Indian appropriation act of March 3, 1877, (19 St. 271,) the appropriations for the salaries of interpreters were made at those rates. The act last mentioned specifically appropriated for the pay of Indian interpreters the uniform sum of $300 each. This course of legislation was continued for five consecutive years, until the passage of the Indian appropriation act of May 17, 1882, (22 St. 68,) which appropriated the gross sum of $20,000 for the payment of necessary interpreters, to be distributed in the discretion of the secretary of the interior, and repealed section 2070 of the Revised Statutes. A like appropriation was made in the same terms by the Indian appropriation act of March 1, 1883, (22 St. 433.)

An examination of this legislation, especially of the Indian appropriation acts, beginning with that of March 3, 1877, down to and including the act of March 3, 1881, which are all similar in their provisions, will clearly reveal the purpose of congress. The act of March 3, 1877, opens with this provision: "That the following sums be, and they are hereby," appropriated . for the purpose of paying the current and contingent expenses of the Indian department and fulfilling treaty stipulations with the various tribes.

Then follow the specific appropriations, and among them the following: “For the pay of seventy-six interpreters, as follows:

Seven for the tribes in Nebraska, to be assigned to such agencies as the secretary of the interior may direct, at three hundred dollars per annum, two thousand one hundred dollars." After the specific appropriation for salaries of interpreters the following clause appears: "For additional pay of said interpreters, to be distributed in the discretion of the secretary of the interior, six thousand dollars." All the subsequent Indian appropriation acts, down to and including the act of March 3, 1881, make in the same language the same appropriation for salaries of interpreters, and contain a similar clause for their additional compensation.

We find, therefore, this state of legislation: By the Revised Statutes the salaries of interpreters were fixed, some at $400 and some at $500 per annum, with a provision that such compensation should be in full of all emoluments and allowances whatsoever. By the acts in force during the appellee's terın of service the appropriation for the annual pay of interpreters was $300 each, and a large sum was set apart for their additional compensation, to be distributed by the secretary of the interior at his discretion.

This course of legislation, which was persisted in for five years, distinctly reveals a change in the policy of congress on this subject, namely, that instead of establishing a salary for interpreters at a fixed amount, and cutting off all other emoluments and allowances, congress intended to reduce the salaries and place a fund at the disposal of the secretary of the interior, from which, at his discretion, additional emoluments and allowances might be given to the interpreters. The purpose of congress to suspend the law fixing the salaries of interpreters in Nebraska at $400 per annum, is just as clear as its purpose to suspend the section forbidding any further emoluments and allowances. Our opinion is, therefore, that the intention of congress to fix, by the appropriation acts to which we have called attention, the annual salaries of interpreters for the time covered by those acts at $300 each, is plain upon the face of the statute.

The whole question depends on the intention of congress as expressed in the statutes. Whether a simple failure by congress to appropriate any or a sufficient sum to pay the salary of an officer fixed by previous law is of itself an expression of purpose by congress to reduce the salary, we do not now decide. That is not this case. On the contrary, in this case congress has in other ways expressed its purpose to reduce for the time being the salaries of the interpret

ers.

This purpose is of course irreconcilable with the provisions of the Revised Statutes on the same subject, and those provisions must be considered as having been suspended until they were finally repealed by the act of May 17, 1882. As the appellee has been paid in full his salary as fixed by the later acts, which were in force before and during and continued in force after his term of service, he has no cause of action against the United States. It follows that the judg- . ment of the court of claims in his favor must be reverned, and it is so ordered.

(109 U. 8. 148)

UNITED STATES v. FISHER.

(November 5, 1883.)

COMPENSATION OF JUSTICES OF TERRITORIES – APPROPRIATION Acrs OF JUNE 21, 1877, TO JUNE 30, 1879—Rev. St., 1879, REPEALED—ACT FIXING SALARY NOT A CONTRACT-CONSTRUCTION OF STAT

UTES-REPEAL BY IMPLICATION.

The act of June 17, 1870,"to regulate the salaries of the chief justices and associate

justices in the territories," Rev. St. $ 1879,) providing that the salaries of the chief justices and associate justices of the territories of New Mexico, Washington, Wyoming, etc., should be $3,000 each per year, was not a contract that such salaries should not be reduced, nor was there any provision of the constitution which forbade a reduction, and as the appropriation acts of March 3, 1877, and down to the act of June 21, 1879, repealed the act of June 17, 1870, by reason of their irreconcilable conflict therewith, a chief justice of one of said territories is not entitled to the salary fixed by the act of 1870 during the period from June 30, 1877, to November, 1879, but only to the compensation provided by the appropriation acts for those years.

Appeal from the Court of Claims.

It appears from the findings of the court of claims that the appellant held the office of chief justice of the territory of Wyoming from February 14, 1876, to November 26, 1879. Up to and including June 30, 1877, he was paid his salary at the rate of $3,000 per annum. From June 30, 1877, up to and including November 26, 1879, he was paid and received, without protest, compensation as such chief justice at the rate of $2,600 per annum. The appellee, contending that he was entitled to a salary at the rate of $3,000 per annum for his whole term of service, brought this suit in the court of claims to recover the difference between what his salary at that rate would have been from June 30, 1877, up to and including November 26, 1879, and the amount actually paid him for that period. The majority of the court of claims was of opinion that the contention of the appellee could not be sustained, but in order that the question might be brought to this court and finally settled, rendered a judg. ment pro forma in his favor for $862.22, from which the United States have appealed.

Asst. Atty. Gen. Simons and J. S. Blair, for appellant.
T. H. N. McPherson and J. Thos. Turner, for appellee.

WOODS, J. The act of June 17, 1870, entitled "An act to regulate the salaries of chief justices and associate justices in the territories," (16 St. p. 152; Rev. St. § 1879,) provided as follows: "The salaries of the chief justices and assocate justices of the territories of New Mexico, Washington, Wyoming, etc., shall be three thousand dollars each per annum."

This statute remaining in force, Congress, on March 3, 1877, passed an act entitled “An act making appropriations for the legislative, executive, and judicial expenses of the government for the year ending

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