Upon the coming in of numerous complaints and objections to this use of a portion of the national park the present Secretary of the Interior suspended the permission thus given, and on February 25, 1910, made an order in substance that said city and county of San Francisco show cause why said permit to thus use the Hetch Hetchy Valley should not be vacated. It is this hearing, which is to take place on the 18th proximo, to which the Secretary of the Interior refers, and at which he desires the attendance, as experts, of these engineer officers.

That the presence of these officers at this hearing, and their opinions as experts, would be of much use and assistance to the Secretary in passing upon the matters before him, and therefore desirable, is obvious, if such detail can lawfully be made in view of the statutory provisions referred to.

Section 1158, Revised Statutes, is from the act of April 10, 1806, and is as follows:

"Engineers shall not assume nor be ordered on any duty beyond the line of their immediate profession, except by the special order of the President. They may, at the discretion of the President, be transferred from one corps to another, regard being paid to rank."

Section 9 of the act of March 4, 1909 (35 Stat. 945, 1027), provides:

"Hereafter no part of the public moneys, or of any appropriation heretofore or hereafter made by Congress, shall be used for the payment of compensation or expenses. of any commission, council, board, or other similar body, or any members thereof, or for expenses in connection with any work or the result of any work or action of any commission, council, board, or other similar body, unless the creation of the same shall be or shall have been authorized by law; nor shall there be employed by detail, hereafter or heretofore made, or otherwise personal services from any executive department or other government establishment in connection with any such commission, council, board, or other similar body."

I am of opinion that unless prohibited by the provisions last quoted the President, under section 1158 above, and

as Commander in Chief of the Army and Navy, and as the executive head of the nation, would have the power to order the detail of these officers for the purposes stated.

The provision in this section that "engineers shall not assume nor be ordered on duty beyond the line of their immediate profession, except by special order of the President," affords the clearest implication that this may be done by such order, a fortiori may such order be made. as to a duty within the line of their profession.

At this day the Engineer Corps is a component part of the Army and its members are much more subject to military command and regulations than were engineers serving with the army in 1806 when this provision was enacted, and I can not doubt that under present conditions the President might, even without any special authority, order any portion of that corps to any duty not inconsistent with their profession as engineers, unless prohibited by the other provision above cited.

The particular question is, therefore, not whether the President would ordinarily have power to make the detail in question here, but whether the section of the act of 1909 above quoted, has prohibited its exercise.

It will be observed that the earlier act of 1806 is a special act relating to engineers only, and has but two purposesthe forbidding of the assumption by, or the ordering engineers to a duty beyond the line of their immediate profession, and the giving to the President power to transfer them from one corps to another.

As there is no apparent reason therefor, we can not readily impute to Congress an intention to repeal either of these provisions which have existed for more than a century, and as there is no express repeal of either, they are still in force unless repealed by implication from the later provision. Such repeals are not favored and are never held to take place when by any reasonable construction it is possible that both may stand together.

As is said in Endlich, Int. Stat. section 223

"It is but a particular application of the general presumption against an intention to alter the law beyond the immediate scope of the statute, to say that a general act

* *

is to be construed as not repealing a particular one, that is, one directed towards a special object or a special class of objects (a). * It is usually presumed to have only general cases in view, and not particular cases which have been already otherwise provided for by the special act, or, what is the same thing, by a local custom (e). Having already given its attention to the particular subject, and provided for it, the legislature is reasonably presumed not to intend to alter that special provision by a subsequent general enactment, unless that intention is manifested in explicit language (a), or there be something which shows. that the attention of the legislature had been turned to the special act, and that the general one was intended to embrace the special cases within the previous one (b); or something in the nature of the general one making it unlikely that an exception was intended as regards the special act. The general statute is read as silently excluding from its operation the cases which have been provided for by the special one, * * "1

*

In United States v. Nix (189 U. S. 199) it is said, page 205:

"The rule of statutory construction is well settled that a general act is not to be construed as applying to cases covered by a prior special act upon the same subject

* * *""

That is, while a repugnancy may be sufficient for the repeal of a general act, it is not sufficient in case of a special act, but besides and beyond this there must be an intention, and one manifested by something other than the repugnancy to repeal the earlier special act.

Then, too, there is in every statute an implied exception to the generality of its language, whenever called for in order to avoid unconstitutionality, conflict with other laws, or absurd or unreasonable consequences, and it would seem that this is one of the very many instances where such exception is called for.

That there must be at least one exception to or modification of the general language used in the latter portion of what is quoted above from the act of 1909 is certain. From the language used it will be seen that even though

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this "commission, council, board, or other similar body" may have been created and authorized by law as there stated, yet unless the act which does this, makes the detail, no detail or service of even the members of such board, its officers, witnesses, experts or council, can be made "from any executive department or other government establishment" to effect the purpose of such board. The section does not say "from any executive department other than the one in, or for which, such board is created," which was doubtless the intention, but it says flatly that no detail shall be made or personal services furnished by any executive department or any government establishment whatsoever.

It is manifest that at least one exception must be made to the general language used to prevent the provision from defeating its own purpose, and if this, then why not one which will avoid a conflict with a very much older act; and a question of unconstitutionality arising, as will be seen later, from what would purport to be a curtailment of the constitutional powers of the President.

Still another settled rule requires us to avoid, if possible, a construction which would bring the later act in conflict with an earlier existing statute where no intention to repeal or modify the earlier act is expressed.

And when we consider that the first part of this section. 1158-that portion here considered-does not confer any power, but on the contrary forbids its use unless ordered by the President, it would seem clear that this restraint was not intended to be removed by the later act, and if not, then it would seem equally certain that the implied grant of power to do, by special order, what is otherwise forbidden, was not intended to be repealed.

There is another reason why the earlier section should not be considered as repealed, nor the power of the President curtailed by the later act referred to. By the Constitution the President is the Commander in Chief of the Army and Navy of the United States.

Except what is implied in the title itself there is no attempt to enumerate or define the powers of the President as Commander in Chief, and yet it is certain that even in the

absence of this he was, by the Constitution, clothed with very many and important powers, and equally certain that it is not within the competency of Congress to divest him of or curtail any power which the Constitution has given him. It would seem certain also that whatever power was at that time inherent, or generally considered as inherent in, or belonging to the office of commander in chief of the armies and navy of a nation, was by this provision conferred upon the President, as far as applicable to this country. If this were not so, it would be difficult to say that the President, as Commander in Chief, has any particular power by virtue of this constitutional provision.

We need not here trace history back in order to ascertain what powers were at the date of our Constitution inherent in the Commander in Chief. As the title implies, he had at least the power to command the Army and Navy of the United States, and as he was Commander in Chief he had no superior in that command, nor could Congress deprive him of or curtail that power.

In McBlair v. United States (19 Ct. Cl. 528), it is said, page 541

"While the President is made Commander in Chief by the Constitution, Congress have the right to legislate for the Army, not impairing his efficiency as such Commander in Chief, and when a law is passed for the regulation of the Army, having that constitutional qualification, he becomes as to that law an executive officer and is limited in the discharge of his duty by the statute."

And in Swaim v. United States (28 Ct. Cl. 173), it is said, page 221

66 * * there remains the significant fact in our military system that the President is always the Commander in Chief. Congress may increase the Army, or reduce the Army, or abolish it altogether; but so long as we have a military force Congress can not take away from the President the supreme command. It is true that the Constitution has conferred upon Congress the exclusive power 'to make rules for the government and regulation of the land and naval forces;' but the two powers are distinct; neither can trench upon the other; the President