
    NATHANIEL K. SAWYER v. THE UNITED STATES.
    [No. 15579.
    Decided May 31, 1887.]
    
      On the Proofs.
    
    By the act 11th June, 1874, the consulate at Turk’s Island is placed in Class V, the salary of which is $2,000. Between 1877 and 1882 there is no appropriation by Congress and no appointment by the President. By the act 30th June, 1882, the consulate is placed in Class VII, the salary of which is $1,000, and the President again appoints.
    I. The Act June 30, 1882 (21 Stat. L., 339, 343), included the consulate at Turk’s Island in Class VII, and appropriated the salary of $1,000 a year for each consul of that class. Every appropriation act for succeeding years has done the same. (23 Stat. L., 233, 328; 24 Stat. L., 114, 484).
    II. If during five years Congress fail to appropriate for the salary of a certain consulate and the President ceases to appoint, and then when Congress subsequently resume appropriations (placing the consulate in another class having a reduced salary) he resumes appointments, it must be held.that the action of the Executive refers to the new legislation, and is intended to conform to it.
    
      The Reporters’ statement of this case:
    The following are the facts of this case as found by the court:
    I. The claimant was, on the 13th day of July. 1882, appointed consul of the United States at Turk’s Island in the dominions of Great Britain, in the West Indies, and has ever since held and exercised that office.
    II. The compensation paid to the claimant during his said term of service, up to the close of the fiscal year ending June 30,1886, has been at the rate of one thousand dollars ($1,000) a year' only.
    III. For the fiscal years ending June 30, 1877, 1878,1879, 1880,1881, there was no appointment of consul at Turk’s Island. After the passage of the appropriation act of February 24, 1881, making appropriations for the year ending June 30,1S82, a consul was appointed at Turk’s Island, and there has been a consul there ever since.
    
      Mr. George A. King for the claimant:
    The question in this case is whether there is anything in the several appropriation acts, appropriating only $1,000 towards the salary of this consulate, which, expressly or by necessary implication, repeals the permanent and general statutes fixing the salary at $2,000.
    If such an intention can be found anywhere in these acts, it must be simply in the words “ For salaries of consuls, vice-consuls, commercial agents, and thirteen consular clerks, three hundred and thirty-two thousand one hundred dollars, namely,” followed by the words “ Turk’s Island,” coming under the title “Class VII. — At one thousand dollars per annum.”
    This court held in the case of Langston v. United States (21 C. Cls. B., 10) that the appropriation act had no such repealing effect, and expressed the principle governing the case in the following language (p. 13):
    “ Public officers, in accepting their positions, have a right to rely upon the salary fixed by permanent general laws, and are not to be cut off by insufficient annual appropriations, unless accompanied by a repeal of the permanent law, either expressly or by the clearest implication.”
    This case was carried to the Supreme Court, where the judgment was affirmed. (United States v. Langston, 118 U. S. B., 389.) The Supreme Court after reviewing the cases of United States v. Fisher (109 U. S. B., 143), and United States v. Mitchell, (109 U. S. B., 146, added (p. 393):
    “The case before us does not come within the principle that controlled the determination of the other cases. The salary of the minister to Hayti was originally fixed at the sum of $7,500. Neither of the acts appropriating $5,000 for his benefit, during the fiscal years in question, contains any language to the effect that such sum shall be £in full compensation ’ for those years; nor was there in either of them an appropriation of money £for additional pay,’ from which it might be inferred that Congress intended to repeal the act fixing his annual salary at $7,500. Bepeals by implication are not favored. It cannot be said that there is a positive repugnancy between the old and the new statutes in question. If, by any reasonable construction, they can be made to stand together, our duty is t.o give effect to the provisions of each.” (Gheio Seong v. United States, 112 U. S. B., 536, 549; State v. Stoll, 17 Wall., 425, 430; Ex parte Yerger, 8 Wall., 85, 105; Ex parte Grow Bog, 109 U. S. B., 556, 570.)
    It may be affirmed, with confidence, that subtitles within an act, like the one now before the court, are even less a subject of special consideration than are the titles of the acts themselves. It would certainly be a most violent stretch of the doe-trine of repeal by implication if this court were to hold that the thoroughly digested and well ordered scheme of consular salaries, established in 1874, were broken through, and to a large extent repealed, by a mere subheading within an appropriation act.
    In order to constitute a repeal by implication of a salary or other act, it is not sufficient that there should be a mere possibility of construing the later law so as to have that effect. There must be an absolute impossibility of construing the two in harmony. (Wood v. United States, 16 Pet., 342, 362. See also Harford v. United States, 8 Cranch, 109; McCool v. Smith, 1 Black, 459, 470; Furman v. Nichol, 8 Wall., 44, 61; Fx parte Yerger, 8 Wall., 85, 105; Henderson’s Tobaoeo, 11 Wall., 652; Arthur v. Homer, 96 U. S. E., 137,140; County of Clay v. Society' for Savings, 104 U. S. R., 579,588; Fx parte Crow Fog, 109 U. S. R., 556,570; Chew Heong v. United States, 112 U. S. R., 536, 549; United States v. Langston, 118 U. S. R., 389,393; Webb v. United States, 20 C. Cls. R., 487, 494.)
    This court, in two well considered cases of diplomatic officers, one of which went to the Supreme Court, has had occasion to construe the very same consular and diplomatic appropriation acts now in question — those of 1882, 1883,1884, and 1885. In both of these cases these acts were construed as mere acts of appropriation, not changing, or undertaking to change, the salaries established by previously existing law. The diplomatic officers for whose salaries insufficient provisions were made by those acts, were held to be entitled to the difference between the sums thus insufficiently paid them, and the full amount of the salary established by law. (Langston v. United States, 21 O. Ols. R., 10 ; affirmed, United States v. Langston, 118 U. S. R., 389; Francis v. United States.)
    
    It would be a singular result if one construction were given to these acts with respect to the diplomatic service, and another and different one as to the consular service.
    
      Mr. F. M. Watson (with whom was Mr. Assistant Attorney-General) Howard for the defendant.
   Richardson, Oh. J.,

delivered the opinion of the court:

The Act of June 11, 1874, chapter 275, section 1 (Supp. Rev. Stat., 33), makes the following provisions:

“ The following consulates shall be divided into seven classes, to be known, respectively, as classes one, two, three, four, five, six, and seven, and the consuls at such consulates shall be entitled to compensation for their services per annum at the rates respectively specified herein, to wit:
“ Class one, four thousand dollars.
“ Class two, three thousand five hundred dollars.
“ Class three, three thousand dollars.
“ Class four, two thousand five hundred dollars.
“ Class five, two thousand dollars.
“ Class six, one thousand five hundred dollars.
“ Class seven, one thousand dollars.
“Class Y.
“Great Britain. — Leeds, Southampton, Dundee, Leith, Cork, Dublin, Toronto, Hamilton, Coaticook, Halifax, Saint John’s (New Brunswick), Kingston (Jamaica), Nassau (New Providence), Tur Vs Islands, Cardiff, Port Louis (Mauritius).”

By said act, and by the appropriation act for the next succeeding year ending June 30, 1876 (Act of February 18 1875, 18 Stat. L., 322), an appropriation was made accordingly for the salary at Turk’s Island.

For the next five years the salary of a consul at Turk’s Island was omitted from the appropriation acts (19 Stat. L,, 171,234; 20 Stat. L., 93, 269 ; 21 Stat. L., 269), and no consul was appointed for that place.

The act making appropriations for the year ending June 30, 1882 (21 Stat. L., 339, 343), included the consulate at Turk’s Island in Class YIX, and appropriated the salary of $1,000 a year for each consul of that class in the following language:

“ Class YII. — At one thousand dollars per annum.
“Great Britain. — GaspeeBasin; Windsor, (NovaScotia); Bombay; Sierre Leone; TurVs Island.”

Every appropriation act for succeeding years has done the same. (23 Stat. L., 233, 328; 24 Stat. L., 114, 484.)

During the five years that Congress omitted to appropriate for the salary of a consulate at Turk’s Island the office was discontinued by the Executive, leaving the same vacant. When Congress subsequently made appropriations for such an office and placed the consulate in class seven instead of class five, it clearly made an alteration of the act of 1874 in the classification of the numerous consulates. To that consulate so classified the claimant was appointed by the Executive. His appointment was evidently made with reference to and in consequence of this new legislation. (Byer’s Case, 22 Ct. Cls. R., 59.)

The appropriation of $1,000 a year while the claimant held the office, instead of being an insufficient appropriation, was the full amount to which he was entitled, even under the act of 1874, as the salary of a consul of the class to which by law he belonged, and the amount has been paid.

The complaiant has no cause of action and his petition is dismissed.

Nott, J., was not present when the case was decided.  