The National tribune., 1894-03-08
NOT A VESTED RIGHT,
Judge Cox Grants Long an Injunction, but
Only Because Due Notice was Not Given.


Judge Cox Grants Long an Injunction, but
Only Because Due Notice was Not Given.
Judge Cox, in Equity Court No. /, last week
rendered his decision in the case of Judge
Long, of the Michigan, Supreme Court who
several days ago applied for an injunction re-
straining the Commissioner of Pensions from
reducing, or seeking to reduce his pension of
S72 per month, granted him by Commissioner
of Pensions Tanner in 1859. The decision read
last week by Judge Cox vas an exceedingly
lengthy one ~
The complainant, said Judge Cox, claims
that he is entitled to $72 a month be-
cause of his two wounds, which, he claims,
require constant attention, and constitute
a permanent injury. There was, said Judge
Cox, difference between inability to perform
manual labor and state of utter and perma-
nent helplessness. and in the opinion of the
court the companants condition was not of
the latter description. The dressing of wounds
was hardly that aid required by man wholly
and permanently helpless.
Judge Cox then referred to Judge Longs po-
sition on the bench, and cited the report of the
surgeons that his physical condition was other
wise good. 1t therefore seemed TO him trat
the complainant was not entitled under the
laws applying to his ease to the amount of PEN
sion now received by him. But while that might
be so, the Court could not interfere.
Commissioner Tanner, thought Judge Cox
had, in reviewing Commissioner Dudley S
action, acted without considering additional
evidence. II e had viewed Judge Longs wounds
but there was no authority to raise a rating
simply upon that Judge Long it seemed had
made no formal claim for Il higher rating to
Commissioners Dudley, and had only written an
IN formal letter to Commissioner Tanner, and
hence Judge Cox said that he very much
doubted the right of either to act.
Judge Cox then discussed the coutcn ion that
pension a vested right, and stated that a
pensioner did not have vested legal right to
his pension-no titled passed, and if succeed
ing Commissioner convinced that he rating
granted by his predecessor was wrong, he had
the right TO prevent future payments. but he
could not interfere in the matter of past pay
ments. vested right in and to the rate paid
was not given.
A pension WAS gratnity. and, as it was not
assgnable. the rights of third parties were not
Jeopardized by any subsequent action. The
Commissioner of Pensions not only possessed
the power TO strike from the rolls fraudu ently
obtained pensions and reduce unlawful ratings,
hut il was made his duty 10 so do by statutes
Therefore, the present Commissioner OF PEN
sOns undoubtedly possessed the right assumed
by him in the present case. The court had no
appellate power over him. and as the court
could not review matters within his authority
and discretion. the court could not, of course,
restrain him in such cases.
In conclusion, Judge Cox referred to tho de-
cision of Judge Bradley in the matter of the
mandamus against Commissioner Iochreu.
asked by Judge Long. aud said that while lie
had the greatest respect and consideration for
Judge Bradleys decision, he believed that
many points brought out during the hearing in
the present case had not been heard by Judge
Bradley.
The act of Dec 81 1893" said Judge Cox,
" declares TINT "a sha Ii no der media nal
held to he vested right, to the extent That pay
ment thereof shall not be withheld or suspend
ed until after due notice to tie grantee of not
less than 80 days; the Com missioner of Pen
sons after hearing all tie evidence shall decide
TO annul, etc. The language as TO vested
right has no Significance. The whole act
amounts to nothing but a prohibition TO sus-
pend or withhold the pension without giving
at least 30 days notices bearing, followed
by decision upan all the evidence.
" 1t was admitted that ssch notice was not
given in tho present ease. e The law is man
datory in this respect and leaves nothing to
discretion. Hence, If complainant insists upon
IT, lie is entitled TO AN injunction against fur
Their proceedings by the Comm oner under
the notice that actually served although
not to The relief which he asks. based upon the
merits of his Claim to his existing pension. The
conclusion is that the Comm issioner cannot he
eniOined as prayed in tho bill from in any way
reducing or attempting to reduce or from m0di-
flying or disturbing the pension of the claimant
or his right u regular or prompt payment of
he same under his pension certificate OF Aug.
16 1889"
Mr.. Hopkins representing Judge Long,
stated that he desired the formal I'M junction
because of the lack of the 30.day notice to
Jndge Long. and All order To that effect was
signed. That merely prohibits Comm issioner
Lochren from proceeding under the notice OF
Jan. 4, but does not prevent him from giving
Judge Long similar one to-day, If deemed
advisable.
Commissioner Locllren on Thursday after
noon addressed notice to Judge Long, OF
Michigan. to the effect that unless satisfactory
| evidence bo furnished within 30 days from re-
ceipt of notice to show that he is so disabled
for pension causes alone as to require the regu-
lar. constant. and personal aid and attendance
CT another person, his pension would be reduced
from $12 10 $50 per month.
The decision of Judge Cox will have the
effect of changing TO some extent the suspension
practice OF the Pension Bureau. Adoption Of
several new forms of suspension notices TO meet
the requirements of the act of Dee. 81. 1893 as
construed by Judge Cox. is already under con-
sideration. Among the plans suggested is that
OF sending registered letters, the returned re-
ceipt of which will record the time of service OF
he In