
    FISHER'S CASE.
    Joseph W. Fisher v. The United States.
    
      On the Proofs.
    
    
      The salary of the chief justice of Wyoming isjixeil by the Hevised Statutes at $3,000. The legislative appropriation act, 1877, provides that a less amount shall be in fall compensation for the ensuing fiscal year. The chief justice is paid the reduced amount, and brings this action for the balance.
    
    I.The usage of Congress in regard to tlie form of appropriation bills examined and stated.
    II.A protracted struggle in tlie House of Representatives, which has become historic, cannot be disregarded in seeking to find tbeintention of Congress in departing from what bad previously been the uniform formula of appropriation bills.
    III. Tlie words “in full compensation” have a clear, distinct, and well-understood signification, which cannot be overlooked or argued out of an appropriation act.
    IV. A good exposition of a statute makes every sentence have its operation, gives effect to every word, does not construe it so that anything- will be vain or superfluous, nor yet make exposition against exx>ress words.
    V.A general repealing clause, sneli as is often introduced at the. close of enactments, may make the legislative intent clearer, but is not necessary to give effect to tbe intention of tlie legislature otherwise expressed.
    VI.When ascertaining the meaning of a statute, the will of the legislature must be determined, and the latest will of the latest legislature must, control all previous enactments.
    VII.The provision In certain appropriation acts, that a less amount than the, salary fixed by law should be “in full compensation” of certain officers for those years, was a compromise between those who favored a permanent reduction and those who were opposed to any reduction whatever.
    VIII.With the expediency or inexpediency of the policy of reducing salaries temporarily, courts have no concern. It is within the Constitutional power of Congress to do so.
    IX.With some exceptions Congress may at any time reduce the salaries of public officers. Tbe only contract which arises from a statute establishing a salary is to i>ay the incumbent that salary while that law remains in force.
    
      X. Territorial courts are not “inferior courts” -within the meaning- of the Constitution (Art. Ill, § 1), and tho provision which declares that the judges “of the supreme and inferior courts shall receive for their services a compensation which shall not he diminished” docs not extend to Territorial judges.
    
      The Reporters’ statement of tke case:
    The following are the facts of this case as found by the court:
    ■ I. The claimant was chief justice of Wyoming Territory from February 14, 1876, to November 26, 1879.
    II. Up to and including June 30,1877, he was paid his salary, at the rate of $3,000 a year.
    III. From the 30th of June, 1877, to and including November 26, 1879, he was paid, and received without protest, compensation as such chief justice, at the rate of $2,600 a year.
    Upon the foregoing findings of fact, the court decided as a conclusion of law, pro forma, in order that the question involved might be determined by the Supreme Court on appeal, that the claimant was entitled to recover the sum of $862.22.
    
      .Mr. T. H. N. McPherson and Mr J. Thomas Turner for the claimant:
    The Constitution provides that the compensation of the judges, both of the supreme and inferior courts, shall not be diminished during their continuance in office. This honorable court has held that an employé of the government is entitled to the salary fixed by law, without regard to the amount appropriated by Congress. (Vide Graham v. United States, 1 ,C. Cls. B., 380; Patton v. United States, 7. C. Cls. B., 371.)
    And, again, this honorable court has held that the compensation to which public officers are legally entitled depends upon general and continuing laws fixing their salaries. The officers of the Treasury have no authority to pay such compensation until appropriations therefor are made; and those are made by Congress annually, except in the cases of the judges of the .Supreme Court of the United States, for whose salaries there is a permanent annual appropriation. (Bev. Stat., § 3689, 2d ed., i). 729.)
    The liability, however, exists independently of the appropriation, and may be enforced by proceedings in this court. In Graham’s Case (1 O. Gis. B., 381), where Congress appropriated a sura less than tbe amount of the salary established by law for tlie office which, the claimant held, it was determined that he was entitled to the full amount of the established salary, and he recovered judgment therefor. (See Joseph B. Collins v. The United States, opinion delivered this term of the court.)-
    
      Mr. George G. Winy (with whom was the Assistant Attorney-General) for the defendants:
    The case is not one, as in that of Graham and Collins, where Congress has simply failed to appropriate as much as existing, law entitled au officer to; it deliberately and explicitly changes the salary and fully provides for its payment as changed. These cases have no application. Nor has this or any other-court held that the legislature may not reduce the compensation or otherwise change a public office it has created, save those protected by Constitution.
    On the contrary, the question has often been raised and discussed, and in every instance it has been decided and declared-that there is no contract, express or implied, for the permanence of the office as entered upon; but that it is taken subject to legislative change as to the future in salary, tenure, or duties.-(Sedgw. Const. Law, 385, note and cases cited; Butler et al. v. Pennsylvania, and cases there reviewed, 10 How., 402; Territory-v. Pyle, 1 Oreg., 151; Koowtz v. Franklin County, 76 Penn., 156.)
    The supreme court of Wyoming Territory is not an inferior court within Art. Ill, §1, of the Constitution, and that clause does not apply and forbid a reduction in the salary of the chief justice. In Amer. Ins. Co. v. Canter, 1 Pet., 545, the court, reading the first lines of the section, says: “ We have only to pursue this subject one step further to perceive that this provision of the Constitution does not apply to it. The next sentence declares that ‘the judges both of the supreme and inferior courts shall hold their offices during good behavior.’ The judges of the superior courts of Florida hold their offices for four years.”
    The Supreme Court has had occasion to pass upon this question since, but that Art. Ill, § 1, of the Constitution has no application to Territorial courts has never been questioned. (Benner et al v. Porter, 9 How.; Clinton v. Bnglebreeht, 13 Wall., 447; 
      Good v. Martin, 95 U. S'., 98.) The term of Territorial" judges is for four years. (Sec. 1864, K. S.)
    Before claimant began the service of the years covered by this action, he knew the sum of $2,600 had been appropriated as the full compensation. This was accepted by him, as regularly paid, without any protest or any other expression of dissent or dissatisfaction. He must be presumed to. have performed the duty and to have received the pay upon the understanding upon which Congress authorized the money to be used, and he is therefore now precluded from claiming compensation upon other terms. (Sholes v. State of Wisconsin, 2 Chand., 197); also Galkins v. State, 13 Wis., 389; Massing v. State, 14 id., 502.)
   Kici-iardson, J.,

delivered the opinion of the court:

The claimant was chief justice of the Territory of "Wyoming from February 14, 1876, to November 26,1879.

By Be vised Statutes, section 1879, the annual salary of the .chief justice and associate justices of all the Territories was fixed at $3,000 each.

The claimant was paid his salary at the rate of $3,000 a year up to and including June 30, 1877, the end of the fiscal year.

The Act March 3, 1877 (19 Stat. L., 294), chap. 102, making appropriations for the legislative, executive, andjudicial expenses of the government for the year ending June 30, 1878, provided:

“ That the following sums be, and the same are hereby, appropriated, out of any money in the Treasury not otherwise appropriated, in full compensation for the service of the fiscal year ending June thirtieth, eighteen hundred and seventy eight, for the objects hereinafter expressed:
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“GOVERNMENT OE THE TERRITORIES.
ft ft ft ft ft ft ft
“ Territory of "Wyoming. — For salaries of governer, chief justice, and to associate judges, at two thousand six hundred dollars each. ” * * * (19 Stat. L., 309.)
The Act June 19, 1878 (20 Stat. L., 178, 194), chap. 329, making appropriations for the fiscal year ending June 30, 1879, contained the same provisions in the same language; and the Act June 21, 1879 (21 Stat. L., 223), chap. 34, re-enacted that act, with “ the same provisions relating thereto,” for the fiscal year ending June 30, 1880.

With the exception of the words “ in full compensation, ” these acts begin with substantially the same formula used in all other •appropriation acts of every description since the foundation of the government. These words were first introduced by the Forty-fourth Congress into the legislative, executive, and judicial appropriation act of March 3, 1877, before cited. The House of Kepresentatives of the same Congress altered its rules so as to make it in order to incorporate into any appropriation bill such provisions or amendments “ as, being germane to the subject-matter of the bill, shall reduce expenditures,” and that rule, changed only in form, has over since continued.

The struggle in the House of Representatives of the Forty-fourth and subsequent Congresses over the proposition to incorporate that provisions into the rules of the House is historic. It cannot be disregarded in seeking to find the intention of those Congresses in departing from the otherwise uniform formula and inserting in the legislative, executive, and judicial ap - propriation acts, in which so many salaries are provided for, the important and significant words “ in full compensation.”

In Blake v. National Banks, 23 Wall., 317, the Supreme Court, in their opinion, examine and cite extensively the proceedings of the Senate and of the House of Representatives, the amendments offered and accepted or rejected, and the points of difference between the two Houses, in order to explain the meaning of the language finally agreed upon in the act then under consideration, and to determine the intention of Congress as therein expressed.

The words “in full compensation” have a clear, distinct, and well understood signification, and cannot be overlooked or argued out of the statute. They must be allowed their full force and effect.

“The good expositor,” says Lord Coke, “makes every sentence have its operation to suppress all the mischief; he gives effect to every word in the statute; he does not construe it so that anything should be vain and superfluous, nor yet makes •exposition against express words.” (Dwarris on Statutes, 577.)

In Bowen’s Case (14 C. Cls. R., 173, affirmed on appeal, 100 U. S., 508), this court held that the introduction into a section of the Revised Statutes of the single word “ such,” which was not in the original act there revised and re-enacted, completely changed the law, and that decision was affirmed by the Supreme Court.

There is no ambiguity in the language of the acts now under consideration. We are not driven, therefore, to resort to any refinement of reasoning or technical rules of interpretation in order to establish, by judicial construction, what an expression in itself of doubtful signification should be held to-rnean.

The Act June 19, 1878 (20 Stat. L., 206), chap. 329, appropriating an amount for the claimant’s salary, “in full compensation,” for the year ending June 30, 1879, contained this provision:

u Sec. 3. That all acts or parts of acts inconsistent or in conflict with the provisions of this act are hereby repealed.”

This section was re-enacted by the Act June 21, 1879 (Stat. L., 23), chap. 34, appropriating a like amount in full compensation for the year ending June 30, 1880.

Without that repealing section, which was not in the earlier act of 1877, the intention of Congress was equally clear. A general repealing clause like this, expressly repealing all inconsistent -provisions of previous statutes, often introduced at the close of the legislative enactments, is not necessary to give effect to the otherwise expressed intention of the legislature. It may intensify or emphasize that intention, but it is not required to give it force and effect.

In seeking to ascertain the meaning of a statute, it is the will of the legislature "which must be determined ; and the latest will of the latest legislature must control all previous enactments wherever they come in conflict, whether words of express repeal be used or not. Leges posteriores priores contrarias abrogant. (Wilcox Case, 12 C. Cls. R., 495, affirmed on appeal, 95 U. S., 661; Farden’s Case, 13 C. Cls. R., 347, affirmed on appeal, 90 U. S., 10; United States v. Freeman, 3 How., 565.) This is the controlling xirinciple upon which all rules of construction are founded.

Legislatures are not bound to use any set or particular formula in the enactment of laws. Language which has a distinct meaning, however awkwardly inserted in a statute, must be held to express the legislative will as fully as though it were introduced in the most artistic manner.

There is no doubt that the words “ in full compensation ” ivere introduced into these appropriation acts for the very purpose of reducing, for the respective years for which the appropriations were made, the compensation of tliose officers for whom the appropriations were less tlian the salaries established by previous laws.

They were inserted as a compromise between those who favored a permanent reduction of salaries and those who opposed any reduction. A temporary reduction was ¡finally agreed upon in this form.

With the expediency or inexpediency of the policy of Congress in thus reducing salaries temporarily, by provisions in annual appropriation acts, we have no concern. However objectionable such a course may seem to others, it is within the constitutional power of Congress, and must be respected and obeyed and not circumvented or evaded by the courts.

With some exceptions, Congress may at any time make alterations of the salaries of public officers, to take effect from the passage of the act. The only contract which arises upon a statute establishing a salary is to pay the incumbent of the office that salary while the law remains in force and unchanged. When the statute is repealed, superseded, or amended so as to-alter, the amount of the salary for the time being, the contract from that time forward is correspondingly changed. (Patten's Case, 7 C. Cls. R., 362; Butler et al. v. Penn. 10 How., 402; Territory v. Pyle, 1 Oreg. 151; Koontz v. Franklin, 76 Penn., 156.)

The Constitutional exceptions and limitations are, that the compensation of the President shall neither be increased nor diminished during the period for which he shall have been elected (Con., Art. II, § 1), and that the judges, both of the Supreme and inferior courts, shall receive for their services a compensation which shall not be diminished during their continuance in office (Con., Art. III, § 1).

That Territorial courts are not “ inferior courts” within the meaning of the Constitution has been authoritatively determined. (Bonner et al. v. Porter, 9 How., 235; Clinton v. Englebrecht, 13 Wall., 447; Good v. Martin, 95 U. S., 98.)

Congress, therefore, had the power to reduce the claimant’s-salary either permanently or temporarily. For the fiscal years ending June 30,1878, 1879, and 1880, they fixed his pay at $2,600 a year, in full compensation for his services; and this they did before he had .entered upon his duties for those years. He thus had notice in advance of what his salary was to be, and by continuing in office thereafter he contracted to 'accept it on the terms of the statute.

We give no force to the fact that the claimant received the reduced rate without objection. He was entitled to the compensation which the law attached to his office, and the defend.ant’s liability could not be discharged by paying a less sum, even though he had. executed a receipt in full. (Baldwin’s Case, ante, p. 297.) We hold, as before stated, that the claimant’s salary was reduced for the time being, and that he has been paid all he is entitled to receive.

A .majority of the court are of opinion that the claimant’s petition should be dismissed.

The question involved in the case is an important one. There are many iiublic officers whose rights may be affected by its determination, and no one of them has a claim large enough to entitle him to appeal from an adverse decision of this court. In order that the case may be taken to the Supreme Court, where the law may be finally settled by the tribunal of last resort, the Attorney-General consents to the entry of a fro forma judgment for the claimant. This brings the case within the rules which we laid down in Bradshaw’s Case (14 C. Cls. R., 145) in relation to pro forma judgments.

The claimant will, therefore, have a pro forma judgment in his favor for the sum of $862.22. In this we are all agreed.

Davis, J.,

dissenting:

I dissent from so much of the opinion of the court as holds that the claimant is not entitled to recover.

The three words uin full compensation” may work some ambiguity in the statute, and by a generous expansion they can undoubtedly be made to effect an entire change of all previous laws inconsistent with the provisions which follow them. But courts do not favor repeals of statute by implication, and never regard a series of statutes as tbus repealed unless tlie new act is absolutely inconsistent with the old ones, or revises the whole subject-matter and is evidently intended as a substitute. (Winchester's Case, 14 C. Cls. R., 13, and cases there cited.) I shall endeavor to- show that the construction given to this statute by the majority of the court repeals by implication a whole series of acts and upsets a policy uniformly observed by the legislature since 1789. If the legislature in tended this result, it is the duty of a court to recognize it. As Lord Mansfield said in Pray v. Edie (1 Term R., 313), “ Whatever doubts I may have in my own breast with respect to the policy and expediency of this law, yet, as long as it continues in force, I am bound to see it executed according to its meaning.” The intent of the legislature is, therefore, the thing which we are to seek.

This intent is first to be sought in the words of the statute. If they are not explicit, we may next inquire into the occasion and necessity of the law. (Dwarris on Statutes, 562.) Iu this connection we may refer to the current of previous legislation on the same subject-matter. (Commonwealth v. Downs, 24 Pick., 227.) If it be apparent that public interests will suffer by a particular construction iu a doubtful case, rve should not presume that such construction was intended. (The People v. Com'rs, &c., 3 Scam., 153.) If the subject-matter is such as to make a given construction irrational, we should have regard to the subject-matter as necessarily bearing on the act (Dwarris, 580); and we should give validity to statutes apparently in conflict, so far as they can be reconciled by any fair hypothesis. (Beals v. Hale, 4 How. 37, and cases cited.)

The act of 1877 contains no repeal in terms of the law making three thousand dollars the annual salary of a judge of a Territorial court. The repeal, if it is repealed, is a deduction from the supposed repugnance between the section of the Devised Statutes -which fixed $3,000 as such salary, and the provision in the act of 1877, which appropriates a less sum in full compensation of such salary for one year.

It is a familiar rule in this court that the appropriation of a less sum than the amount of a debt due from the United States and the payment of the sum appropriated do not of themselves operate as a discharge and satisfaction of the debt. (Collins, Case, ante, p. 22). This proposition is not denied by the majority, but they contend that the statutory words, “in full compensation,” in the act of 1877, operate to repeal the statute fixing $3,000 per annum as the rate of the claimant’s compensation,, and to establish a new raté in its place. Let us first see if “the-current of previous legislation upon the same subject” gives any light for the solution of the question.

The Constitution creates but one paid executive officer — the President. It provides that he shall receive a fixed compensation, to be paid to him at stated times. It also provides that the compensation of a FederaL judge shall be paid at stated! times, and shall not be diminished during his continuance in office. With these exceptions it mates, no provision for the-payment of any person serving the government. It m ikes general provisions for filling official positions, and it leaves to the law-making power to determine the amount of compensation to be given to each.

Thus the Constitution in its only provisions on this subject adopts the two principles of fixedness in amount and regular intervals in time of payment as guides to the law-making power-in determining the compensation of the President and of the judges of the Federal courts. The only English word whicls-expresses these two ideas is the word “salary,” which is defined to be “a stipulated periodical recompense” (Worcester’s Dictionary).

In some of its early legislation respecting the salaries of the President and the judges, Congress adopted the word “compensation” from the Constitution. (1 Stat. L., 72.) The same word was also used in appropriation acts, and has been retained there, uniformly, I think. But as early as February 13,. 1801, the compensation of the circuit judges was st3rled in the statute an “ annual salary.” (2 Stat. L., 100.) On the 3d March, in the same year, an act was passed “to augment the salaries, of the district judges” in. certain States. (Ib., 121.) In 1810, by “an act to increase the salaries” of certain officers of the government, it was provided that “annual salaries” should be “paid quarterly” to “ the Chief Justice of the United States,” and “to-each of the judges of the Supreme Court of the United States.” (3 Stat. L., 484.) And the compensation of retired judges is styled a “salary.” (Rev. Stat., 14.)

Thus it appears 'that in practice Congress has adopted the word salary in order to express the Constitutional idea of compensation to the classes of officers whose compensation the Constitution provided for. It made the following provisions for the much larger class of officials who were the creatures of legislative law, and of whom tbe claimant is one.

The officers of the old Department of Foreign Affairs were paid “ salaries under the resolution of the old Congress. (1 Stat. D., 28.) The new department, first styled Department for Foreign. Affairs, but soon changed into the Department of State, fell heir to this madness. In a very early statute Congress enacted that annual salaries should be paid quarterly to the Secretaries and officers of the different departments. (1 Stat. L., 67.) The same word was used to express the compensation of Territorial officers when the Territories were organized (1 Stat. L., 123); of diplomatic representatives (ib., 128); of the doorkeepers of Congress (ib., 253), and of the clerks and employés in the departments (5 Stat. L., 523). The Revised Statutes have adopted and confirmed this nomenclature. (§§ 33, 53, 155, 167, 200, 20 L, 215, 234, 233, 301, 312, 316, 319, 323, 334, 343, 347, 348, 351, 389, 390, 393, 416, 438, 440, 446, 447, 448, 449, 450, 462, 470, 475, 476, 477, 517, 521, 522, &c.) From the statutes it has found its way into the common parlance of the people, and the practice of a century has crystallized it in to a custom. By this usage the compensation, of those who are styled officers and employés of the government, as distinguished from those employed in services requiring' less education and less skill, is universally styled a salary. I understand this word as thus employed to convey the two Constitutional ideas already referred to, viz: 1st. A fixed annual compensation ; 2d. To be paid at stated intervals. It differs from the Constitutional compensation in this respect, that the Constitutional compensation cannot be diminished while the incumbent is in office; while the salary created by law can be prospectively diminished by act of Congress. But this forms no part at* the definition of the word salary.

It follows from the foregoing that when the claimant re ceived Iris appointment he acquired the right to receive for the performance of its duties a fixed annual compensation, payable at stated periods. The statute gave him the right to enjoy this for years. In this respect he possessed an advantage over many officials whom the Constitution and the law leave subject to -executive removal at any time. His rate of compensation was undoubtedly subject to be changed by Congress, but he had the right to infer that should it be disturbed some other rate of compensation would be substituted in its place.

Now if the effect is given to these three words which my colleagues claim for them, I am at a loss to comprehend what was substituted in the place of the general provisions of law which were repealed. Before the passage of the law of 1877 the annual salary of the claimant was $3,000. (Rev. Stat., § 1879.) If that provision was repealed, it is clear that nothing was put-in its place except an appropriation of a less sum for the fiscal year ending June 30, 1878. No provision was made in the act of 1877 for a payment or a rate of payment beyond the latter date. It seems to me incredible that Congress intended to wipe out the previous provision as to salaries without substituting something in its place. To warrant such a conclusion, we should have some stronger and more direct foundation than a deduction from three words in the statute. There can be no doubt that, in the language of one of the authorities which I have cited, “the public interests would suffer by it.” The public is best served by an independent paid official. I cannot conceive that Congress intended to subsitute unpaid officers for salaried officials.

■ Nor do I think that Congress could have intended to reduce the salary for a single year, and to restore it to its old rate at the expiration of the year. In -the language of one of the authorities ’ which I have cited, that proposition strikes me as “irrational.” I dare not presume, in the absence of express words, that the legislature .intentionally debased the salaries of public officers for a single year, with the intention of restoring them to the old standard at the close of the year.

Prior to the act of March, 1877, it had been the uniform policy of Congress, when creating an office, to attach to it a fixed salary. Congress had the undoubted right, except as restrained by the Constitution, to create offices without salaries or to make the salaries dependent upon the will of an accidental majority. If it intended to do so, I think it would have expressed its intent in terms in the statute. If the act of 1877 made no provision for a rate of compensation to the claimant beyond the then current year, and if it is irrational and contrary to public policy to suppose that Congress meant to leave a public official*, in the discharge of a necessary public duty, without the right to a salary, it seems to me more reasonable, more probable, more in accordance with public interests and with the probable intent of the legislature to construe the three words, “in full compensation,” in tbe act of 1877 as an expression of the legislative propose to pay a sum less than the contract price in full satisfaction ; which the United States can no more do than the in-1 dividual citizen could. I prefer to leave it to the legisative body hereafter, if the court has misinterpreted its will, to indicate it in a more direct and unequivocal manner, rather than deduce such sweeping detailed results from general words at the head of an appropriation bill, in which twenty-ñve pages of appropriations are made “in full compensation for the service of the fiscal year.”

The same general considerations apply to the act of 1878. That act differs from the act of 1877 in that it contains a general repealing clause of all acts inconsistent with or in conflict with its provisions. I do not feel inclined to infer from such general language, which may be applicable to many other things-in the statute, a reversal of a long-settled policy, but rather prefer with this statute, as with the other, to leave fixed salarie» attached to such offices by law until Congress shall directly legislate that no salary is attached to them, or shall in terms permanently change their amount. 
      
       In the case of Embry v. The United States (100 U. S. R., 680), decided by the Supreme Court on the same day that this opinion was delivered, the Chief Justicesays: “ The question here presented is not one of office, butof salary. Wherever the power of removal from office may rest, all agree that Congress has full control of salaries, except those of the President and the judges of the courts of the United States. The amount fixed at any time may bo added to or taken from at will. No officer except the President or a judge of a court of the United States can claim a contract right to any particular amount of unearned compensation. If an officer is not satisfied with what the law gives him for his services, he may resign.”
     