
    JOHN POPE v. THE UNITED STATES.
    [Departmental No. 1.
    Decided June 4, 1884.]
    
      On the Facts.
    
    A brigadier-general is assigned to duty in 1867 by Ms brevet rank of major-general, but receives only the pay of a brigadier-general.
    I. Since the Jot 3d March, 1865 (13 Stat. L., p. 488), officers of the Army have not been entitled to the pay and emoluments of brevet rank though assigned to duty as such by the President, and having command accordingly.
    II. The first section of the Jot 16ih April, 1818 (3 Stat., I, p. 427), was superseded and repealed by the Aot 3d March, 1863,1865 (12 Stat. L., p. 7f8; 13 id., 488), and was omitted from the Revised Statutes.
    
      The Reporters' statement of the case:
    This case was transmitted to the court by the Secretary of "War under the provisions of the Bowman Act. The following are the facts as found by the court:
    I. July 16,1862, the claimant was duly commissioned a brig-
    adier-general in the Army. July 17,1866, he was duly commissioned as a brevet major-general, to rank as such from March 13,1865, “for gallant and meritorious services at the capture of Island No. 10.” October 19,. 1867, the following order was issued: -
    “ Adjutant-General’s Oeeice,
    “ Washington, October 19, 1867.
    “13. By direction of the President, Brevet Major-General John Poj)e, brigadier-general, U. S. Army, is hereby assigned to duty according to his brevet rank, to date from April 1, 1867.
    “By command of General Grant:
    “E. D. Townsend,
    
      “Assistant Adjutant- General."
    
    II. The claimant was on duty and having a command.according to his brevet rank from April 1, 1867, to January 1,1868, and from May 3,1870, to the time when he was appointed a major-general. His commission as major-general was dated December 14, 1882; and it recited that he was to rank as such from October 26, 1882.
    
      III. From April 1,1867, to October 26,1882, he has received only the pay of a brigadier-general.
    Upon the foregoing findings of fact the court decided, as a conclusion of law:
    Since the passage of the act of March 3,1863 (ch. 82,12 Stat. L., 758), and the act of March 3,1865 (ch. 79,13 Stat. L., 488), officers of the Army have not been entitled to the pay and emoluments of their brevet rank, even when assigned to duty or command as such by special assignment of the President, and the claimant is therefore entitled to no further payment for the time he was on duty and having a command, according to his brevet rank.
    
      Mr. J. Subley Ashton and .Mr. Nathaniel Wilson for the claimant:
    1. The claim and right, on the part of brevet officers, to the pay and allowances of their brevet rank, in the circumstances contemplated by the act of 1818, are not founded upon the brevet rank itself, but are based upon the duty and the service performed, by those officers, under their brevet commissions. This provision in the Act of March 3, 1863, re-enacted in the Revised Statutes, that brevet rank shall not entitle officers to any increase of pay and emoluments, was merely the declaration of a principle which had applied to brevet rank from the beginning of our military establishment. That provision does not affect or touch the grant contained in the Statute of April 16, 1818, which expressly and affirmatively gives to brevet officers, when on duty and having a command equal to their brevet rank, the pay and emoluments of that rank.
    The only other provision of law, subsequent to the Act ot 1818, which it seems necessary, therefore, to consider at any length, is the seventh section of the Army appropriation Act of March 3, 1869. It does not expressly repeal the first section of the Act of 1818. Is it a constructive, or implied, repeal of that section? Clearly it is not, if there is any meaning in the rules of law applicable to that question.
    The first of those rules is, that implied repeals are never to be favored. “It is so easy,” said Attorney-General Black, “for the legislature, in making one law, to say that ‘another law on the same subject is repealed; and, when it is meant, it is so likely to be said that we never presume it when it is not 
      said, unless tlie laws are in such palpable conflict that both cannot be executed.” (9 Opinions Att’ys-Gen’l, 47.)
    If, by any reasonable construction, the two statutes can stand together, they must so stand. If harmony is impossible, and only in that event, the former law is repealed, in part or in whole, as the case may be. The implication of repeal must be necessary. There must be a necessary inconsistency in the two acts standing together. There must be a positive repug-nancy, an irreconcilable inconsistency, between the provisions of the new and those of the old, to justify the construction that the latter repeals the former.
    Such has been the language of the Supreme Court of the United States, in accordance with all the authorities, from the earliest to the latest case on the subject of implied repeals. (Dx parte Grow Dog, 109 U. S., 570; Red Rock v. Henry, 106 U. S., 601; Henderson’s Tobáceo, 11 Wall., 657; United States v. Tynen, ib., 88; Wood v. United States, 16 Pet., 342; Potter’s Dwarris, 155; Maxwell on Interpretation of Statutes, 133; Goté v. United States, 3 O. Cls. B., 69; Wood v. United States, 16 Pet., 363; Dx parte Grow Dog., 109 U. S., 570.)
    2. Section 1264 of the Revised Statutes, when it declares that “ brevets conferred upon commissioned officers shall not entitle them to any increase of pay,” does not aifect the right granted by the act of April 16,1818, or declare anything that is inconsistent with or repugnant to the provisions of the first section of the Statute of 1818.
    
      Mr. George L. Douglass (with whom was the Assistant Attorney-General) for the defendants.
   Richardson, J.,

delivered the opinion of the court:

The act of July 6,1812 (ch. 137, 2 Stat. L., 785), contained the following section:

“ Sec. 4. And be it further enacted, That the President. is hereby authorized to confer brevet rank on such officers of the Army as shall distinguish themselves by gallant actions or meritorious conduct, or who shall have served ten years in any one grade: Provided, That nothing herein contained shall be so construed as to entitle officers so brevetted to any additional pay or emoluments, except when commanding separate posts, districts, or detachments, when they shall be entitled to and receive the same pay and emoluments to which officers of the same grades are now ór hereafter may be allowed by law.”

By section one of the act of April 16,1818 (ch. 64, 3 Stat. L., 427), that provision was thus modified:

uBe it enacted, &c., That the officers of the Army who have brevet commissions shall be entitled to and receive the pay and emoluments of their brevet rank when on duty and having a command according their brevet rank, and at no other time.”

It is upon this enactment that the claimant rests his demand for the pay of his brevet rank while on duty, and having a command according to such rank from April 1,1867, to January 1, 1868, and from May 3,1870, to October 26,1882. He has been fully paid according to his lineal rank.

On the part of the defendants it is contended that the act of 1818 was repealed before the claimant performed said duty, and several statutes, which we shall cite, are relied upon in support of that position. The act of March 3,1863 (ch. 82,12 Stat. L., 758), was as follows:

Be it enacted, cfec., That the President of the United States be, and he hereby is, authorized, by and with the advice and consent of the Senate, to confer brevet rank upon such commissioned officers of the volunteer and other forces in the United States service as have been or may hereafter be distinguished by gallant actions or meritorious conduct; which rank shall not entitle them to any increase of pay or emoluments.”

It was thereafter claimed for the officers of the regular Army that this provision did not apply to them ; that their appointments to brevet rank were made under the act of 1812; that this act was passed to enable the President to give brevet rank to officers of volunteers and the militia, which latter, it was alleged, Congress meant by the words “other forces”; and that it was the brevet rank of volunteer and militia officers only to which Congress referred therein by the words “which rank shall not entitle them to any increase of pay or emoluments.”

Such was the construction put upon the act by the pay department of the Army and the accounting officers of the Treasury. Officers of the Army continued to be paid under the act of 1818 according to their brevet rank when on duty and having a command according to such rank, while officers of the volunteer and militia forces under like circumstances received no increase of pay and emoluments.

Then came the act of March 3,1865 (ch. 79, 13 Stat. L., 588), with this provision:

“Sec. 9. Be it further enacted, That officers by brevet in the regular Army shall receive the same pay and allowances as brevet officers of the same grade or rank' in the volunteer service, and no more.”

This act having declared that brevet officers in the regular Army should receive no more pay and allowances than those in the volunteer service, and, according to the practical construction given to the act of 1863, which must have.been known to Congress, the latter officers having been excluded from receiving any additional pay or allowances on account of their brevet rank, the pay department of the Army and the accounting officers of the Treasury thereafter paid them all-alike, according to their lineal rank only.

We do not see how they could have done otherwise. They had previously given the officers of the regular Army the benefit of a construction of the act of 1863 in their favor, the correctness of which is by no means clear, and now that Congress had passed an act expressly declaring that brevet officers of the regular Army should have the same pay as those of volunteers, <md no more, there could no longer be the slightest justification for making any distinction between them, and none has since been made.

The executive construction has uniformly been that all pay and allowances on account of brevet rank under all circumstances and for all officers has been abolished since March 3, 1865, and that construction we think, is correct.

We have no doubt but that the act of 1818 was superseded and repealed by the acts of 1863 and 1865. We are confirmed .in these views by the course of subsequent legislation, and especially by the action of Congress in the revision of the statutes.

March 3,1869, Congress passed an act in which is the following section:

Sec. 7. Be it further enacted, That brevet rank shall not entitle an officer to precedence or command except by special assignment of the President, but such assignment shall not entitle any officer to additional pay or allowances. (Act of 1869, March 3, ch. 121, 15 Stat. L., 318.)”

The main object of this provision was evidently to restrict the right of brevet officers in precedence and command to the case of a special assignment by the President, but, lest additional pay should be claimed, it was expressly declared that such assignment should not entitle any officer to additional pay and allowances; thereby continuing the policy of the acts of 1863 and 1865.

Then came the revision of the laws, first reported by commissioners after several years of labor and study, and afterwards carefully examined by a committee of the House of Bepresenta-tives and passed with deliberation.

We find that section 1 of the act of 1818, upon which the claimant relies, was omitted from the Bevised Statutes, while section 2, which was the remainder of it, was, in substance, incorporated therein, with other provisions on the same subject. (Bev. S£at., §§ 1209, 1210, 1211, 1261.) Both the commissioners and Congress must have regarded section 1 as repealed, or they would have brought it forward and re-enacted it as they did the rest of the act. It is hardly to be supposed that, in making a general revision of the statutes, Congress would have omitted so important a provision in relation to the Army had they not construed the subsequent acts as superseding or repealing it.

The Bevised Statutes must be held to contain all the preexisting general and permanent laws on such subjects as Congress undertook to revise, unless it be made to appear, with great clearness, that there has been an omission. (Bowen’s Case, 11 C. Cls. R., 171.)

The following sections show that Congress designed the revision to be thorough and complete, and that they did not intend to make any omissions; and in our opinion they have not done so in this matter :

“Sec. 5595. The foregoing seventy-three titles embrace the-statutes of the United States general and permanent in their nature, in force on the 1st day of December, one thousand eight hundred and seventy-three, as revised and consolidated by commissioners appointed under an act of Congress, and the same shall be designated and cited as the Bevised Statutes of the United States.
“ Sec. 5596. All acts of Congress passed prior to said first day of December, one thousand eight hundred and seventy-three, any portion of which is embraced in any section of said revision, are hereby repealed, and the section applicable thereto shall be in force in lieu thereof; all parts of such acts not contained in such revision, having been repealed or superseded by subsequent acts, or not being general and permanent in their nature. * * *”

The result is that there is nothing due the' claimant upon his demand.

The case is before us by transmission from the Secretary of War, under section 2 of the Bowman Act (22 Stat. L., 485). It is therefore ordered that these findings of fact and conclusions of law, with this opinion, be certified to the War Department for its guidance and action, as provided by said act.  