The Wheeling daily intelligencer. [volume] (Wheeling, W. Va.) 1865-1903, 1893-08-25


The announcement that Col, Charles
p. Lincoln, ex.deputy commissioner OF
: pensions, now practicing law in Wash
ington, would bring to test in court
the legality OF the action oil Secretary
IIoke Smith, in his Wholesale suspen'
sion OF pensions granted by his prede'
cessor, under the act Of June p, 1890,
has attracted no little attention. Being
an old soldier himself and prominent in
the Grand Army, Mr., Lincoln is de-
voted to the interests OF his comrades,
while his position at the bar make, his
opinions OF expert value. Mr., Lincoln
was asked by the Press correspondent
to-day to explain some OF the legal
points which he would raise in bringing
such suit.
The suit would be brought in the su-
preme court OF the District OF Columbia
and 1t would probably take the form OF
u mandamus to enjoin the secretary OF
the interior from continuing his sus-
pension OF pensions. 1t may DO that
the bringing OF such proceedings will
be delayed pending the action Of the
senate upon the resolution introduced
by Mr., Galinger, OF New Hampshire,
the other day, looking to an inyestlga-
ton OF this very subject. Mr. Lincoln
very carefully Went over the entire
question, citing authorities and deci-
sions in support OF his main contention,
which is that one secretary OF the
interior has no right to undo tho act OF
his predecessor. Mr.. Lincoln said;
MR. LINCoLN's VIEWS.
"While the supreme court OF the
United States has decided in ex rel.
Ward b. Burnett vs.. Henry NJ. Teller,
secretary Of the interior. 10th United
States, page 1858, that mo pensioner has
vested right TO his pension, he has
legal right, and one which the secre-
tary OF the interior has no authority to
divest him OF except as provided by
law; that such review Of an act already
adjudicated, and n reduction or suspon-
sion OF pension can only be made by
him where the preparation OF fraud in
procuring the pension is charged, or
where there has been decrease or ces-
sation Of the disability for which pen.
sion was granted.
"Under section 4,744 OF the revised
statutes the commissioner was author
lied to investigate any attempts at fraud
on the government under the pension
law. This section was amended July,
1882, soas 10 authorize the commissioner
to mako special examinations into the
merits of pension claims, whether pend
ing or adjudicated, and to aid in the
prosecution OF any party appearing to
be guilty OF fraud tits commended that
this amendment only broadens the
commissioners or seCretary's authority,
permitting him to investigate adiudi-
Gated as we'll as pending cases, for the
purpose OF its trainers was merely to
extend the power OF the commissioner
to the investigation Of fraud perpetrated
in securing the adjudication OF claims.
NO FRAUD CHARGED.
"Now, the point is that fraud is not
charged, aud there is no evidence OF
fraud in any OF the cases now being sus-
pended under the act OF June 81, 1890.
They are suspended, not for fraud al
legged or suspected, and not because
there has been any alleged change in
the degree OF the disability shown upon
the adjudication OF their claim under
the last administration. These suspen.
sions are being made solely because OF
difference in the Interpretation OF
tho act OF June-27, 1890, by the last adj
ministration and by this. The inter-
probation by the present administration
requires q greater degree OF disability
to entitle pension than was required
under the previous administration.
"!Ihis Is shown by the decision OF
Secretary Smith, dated May q, 1898, in
the case OF Charles I. Bennett Under
that decision Secretary Smith, in com.
mentinH upon the Interpretation OF
the statute by the previous Adj
ministration, which he held to be erro.
.peous, says: 1t is hardly necessary to
present argument or 10 support by au-
thority the proposition that neither the
secretary nor commissioner can by
order or practice supersede an act OF
congress. The power OF the depart
ment, so far as order and practice are
concerned, ia limited to an execution OF
the law, which ceases when an effort is
made TO supersede the law
SMITH EXCEEDS MS POWERS.
~ concur fully with the secretary in
this statement, and the law as inter-
protod by the last administration is the
law as far as cases adjudicated under it
are concerned. Neither the secretary
nor commissioner can by order or prac-
tice supersede that law. The law prior
TO June u, 1879, provided for biennial
medical examinations OF all pensioners
with tho view OF ascertaining whether
thoro had been any change in the de.
gree OF disability for which they were
pensioned.
"The law requiring these biennial OK.
aminations was repealed June 81, 1870,
with the provision that tho commits.
sioner OF pensions shall have tho same
power as heretofore to order special
examinations whenever, in his judg.
mont, the same may be necessary, and
to increaIo or reduce the pension nc.
cording to right ana justice, but In no
case shall there DO pension reduced
or withdrawn, except on notice to the
pensiouer, aud hearing upon sworn
testimony, except us to tho certificate
OF the examination.
The power referred to aa POSSESSED by
the commissioner OF pensions to order
special examinations 10 found In soc.
ton 4,776. Revised Statutes, which says:
Examining surgeons, duly appointed
by tho Commissioner OF Pensions, and
such other qualified surgeons a. may DO
"a hu In L..