The daily union. [volume] (Washington [D.C.]) 1845-1857, 1855-06-01

leave although there may be peculiar cireusees ~
particular cases which should modify this construction
(Nayos Pension Laws, p. 557, and benneus Digest 7
1917
This defntop is made with reservation OF Underlined
exceptions and Is therefore, faulty but Il is also, IN my
opinion faulty in what expressly includes a. well as IN
what il expressly excludes.
Take each Of the cases Of exclusion mentioned and con-
slider them
soldier or sailor while "under arrest or Ain eonhne-
ments is not discharged from the obligation Of duty and
i not seldom called upon 20 perform duty IN which he
may distinguish himself and die honorably, and leave II
seems 10 me- right OF pension 10 bis widow or chdren
as for example the contingency of post or camp at
tackled by the enemy, a ship in peril at sea- so sun
more OF an officer on frlough So il may be in the case
Of soldier temporarily aabsent leavef nay even Of
one compromised in grave military offence ior
when violation of duty is taken as rule OF exclusion
operates in my opnion only where the violation OF duty
has probable relation the Of death and not where
these are independent facts Thus sailor, who is labor
ng under all the effects of vicious indulgence and
subject 10 die nj any of disease occasioned by that
cause may vet happen die of other disease contracted
or OF casualty occurring, OF injury received while IN
dubaby in the line of his duty, and so transmit right
OF pension In word these assumed causes OF exclusion
sto,lN operate not per 81 but only where they amrha
.iva' - xclude the line OF duty.
ON NE other hand If these be the only cases OF eIclu
sion hen what lef, included By means be- as
whole admitted An officer soldier, who IS neither
unde arrest nor in confinement on furlough nor a
sent without leave yet die in thousand ways wmeh
will be neither Of disease contracted Of casualties by
drowning OF otherwise Of wounds received while in
the line Of duy--as for example, n III quarrel or
in dangerous amuserens; that is % ~ he conditions OF
inclusion as well as Of exclusion have relation to the
/ line of duty.
Thus in one of the referred in your letter. and
upon which you have already ruleda case OF suicidet
was held and properly only that suicide is not OF it
4 daatb ali that he ami
eide is alleged to been produced by insanity and
thus insanity be put forward the then II
must be shown that the insanity the result of or Incl
dental to, acts OF duty.
Another illustration of this idea in the ruled
by Mr. Attorney General Butler, of soldier claiming in
valid pension who in attempting to pass the guard with
written permit injured by the sentinel but alleged
without povocaon In that il became necessary to
inquire first as to the fact of provocaton not "tor II
the assault was brought the claimant by his mis-
conduct he be said to have been disabled while in
the line Of ais duty and secondly whether he was about
to pass guard for purpose growing out OF or con-
nected with public service for if the pass was given
10 him solely for purpose of enabling him TO attend to
his private affairs, and if at the time he was injured he
was going about his private business he can in sense be
considered as in the public service(M Buffers Opinion
i December 20, 1889
It may be suggested that this opinion turns the words
in the public service of the act Of 1899 Not for
when the acts speak cline Of duty they mean OF course
public duty Undeniabe tests Of this truth will be per-
ceved looking the second and third of the three cat
egories of the under casual
ties by drowning otherwise and injuries receiqed is
impossible say that the phrase casualties injuries
ceived Gin the line of duty comprehends all the possible
misadventues of private life which happen to
officer in his personal affairs and wholly disconnected from
his public duty though he be not furlough Suppose
for instance that officer is proprietor Of stock farm
of dwelling storehouses rent is interested in
mandatory he has perfect right to be, and to which
private property without neglect Of any public duty he
gives occasional attention. and suppose that in the
Of this property he killed by the kick of vicious horse
of stock by fall from the scaoldng of one of his
in the Of reparation it be pretended
that such casualty injury in the line of duty
as phrase employed in the pension acts Most
Il suredly not
In effect all the serious controversy arises questions
of death by of the infinite variety Of diseases to
which the human body is subject In reference to this
category of the statutenamely death by disease
i tractea while in the line of dutythe proposition has
been advanced that every in the service who not
furough under arrest and who dies of ordinary
death the of nature not raceabe to vice
other specific misconduct in dying devolves right
of pension his widow children that to say, that
all cases Of natural DEATH with exceptions of
diseases of proveabe misbehavor deaths by disease
contracted in the line OF duty. 1t is further assumed that
this doctrine the settled law and long practice of the
/ government
/ cannot yield either of these propositions
The doctrine is not in my Judgment thing adjudicated
4 nor question of novel impression, is it good law
In support of the proposition that this point is settled
one reference made in the first place. alleged prece
dents in the Pension Office. have already disposed of
I that argument
Reference is made in the next place to the opinion Of
Mr. Ewing. have already remarked that in the view
of as definition Of the phrase Zine of duty Apart
from which is this consideration: Mr. Ewing does dis
j pose of-nay, he does alude to-the question when
disease be said to be contracted in the line of duty Two
conditions have coexsthe line of duty and disease
contracted therein Whatever definition be given Of the
first condition. the second condition still remains to be de-
i fined, and is not defined by Mr. Ewing
Il But the assumption Of adjudication rests mainly nvo1 the
opinion Of Attorney General Rush which,
however, when attentivey considered is not found sup
i port the assumption
i Mr.. Rush called upon to construe te words "or
otherwise in the Of $780, which allows invalid pay
any officer, non-comnssoned officer, private disabled
by wounds otherwise while in the line OF his duty in
public service" Mr. Rush very properly declares in the
first place that cor otherwise includes disease casualty
and he proceeds in the second place. consider the ela
ton any casualty disease the line Of duty in public
4 serviee.---( Mr.. RushIs Opinion, April 8, 1851
Now in this act in all the Others the condition Of
slime OF duty stands in exactly the relation
wounds drowning other casualty and personal