Evening star., 1894-02-28
NO VESTED RIGHT
The Commissioner of Pensions Can
Rerate Judge Long.
FORMAL NOTICE ONLY REQUIRED
Judge Cox UphoIds the Power to
Review Pension Ratings.
AN INJUNCTION GRANTED

Judge Cox, in Equity Court, No. 1, this
morning rendered his decision in the case
of Judge Long Of the Michigan supreme
court, who several days ago applied for an
injunction restraining the commissioner Of
pensions from reducing. or seeking to re-
duce. his pension Of $72 a month. granted
him by Commissioner of Pensions Tanner
in 1885, The decision read today by Judge
Cox was an exceedingly lengthy one. and
while Commissioner Lochren was restrained
because the complainant had not been given
the thirty days notice required by the act
of December 81, 1898, Judge Cox declared
| that otherwise the commissioner had, so
far, acted entirely within the authority
possessed by him In. reviewing the acts Of
his predecessor. and that, therefore, Judge
Long was not entitled to the relief prayed
for in his bill of complaint
Judge Cox minutely reviewed the laws
passed by Congress in the matter Of pen
sions, and especially those which applied to
the injuries sustained by Judge Long, who
lost the left arm, between the elbow and
shoulder, and suffered gunshot wound Of
the left hip.
The complainant. explained Judge Cox.
while receiving pension for the loss Of
his arm did not apply for a pension because
OF both wounds until March 13, 1854. claim
Ing that he was totally incapacitated, and
suggesting that he might be entitled to the
highest rate. viz. $72 month The COM
missioner Of pensions. Dudley, granted him
pension Of $50 a month from March q,
1884. but Judge Long protested that it
should have been dated in 1850. The pen
sion remained as granted by Commissioner
ner, reviewing his predecessors action.
raised the rate to $72 month. The present
commissioner, believing that Judge Long
was not entitled to such a rating. had, on
fhA % 1ae <xt,,z Ill
he must show cause at the end Of thirty
days why it should not be reduced.
Helplessness Defined.
The complainant, said Judge Cox, claims
that he is entitled to $72 a month because
Of his two wounds, which, he claims. re-
qure constant attention and constitute a
permanent injury. There was, said Judge
Cox. a difference between inability to per-
form manual labor and state Of utter ard
permanent belplessness, and in the opinion
of the court the complainant's condition
was not Of the latter description. A man
was, of course. helpless when unable to
help himself. But there were degrees Of
helplessness, and a man was totally helpless
when wholly unable to perform the ordinary
functions of life; unable. too. to earn a
living. The dressing of wounds was hardly
that aid required by . man wholly and
permanently helpless.
Judge Cox then referred to Judge Longs
position on the bench. and cited the report
of the surgeons that his physfcal con.l lition
was otherwise good. 1t therefore seemed to
planant was not entitled under the-laws
applying to his case to the pension now re-
ceived by him. But while that might be so,
the court could not interfere: the rating
given being a matter within the discretion
and authority of the commissioner Of pen
sions. the court having no appellate power
over the commissioner.
Commissioner Tanner, thought Judge Cox,
raN,iauyin0 mi nr,Il 60
action, acted without considering additional
evidence. He had viewed Judge Long 8
wounds, but there was no authority to raise
rating simply upon that Judge Long II
| seemed. had made no formal claim for a
higher rating to Commissioner Dudley and
had only written an informal letter to Com
missioner Tanner, and hence Judge Cox
| said that he very much doubted the right
OF either to act.
Not n Vested Right.
Judge Cox then discussed the contention
| that pension was a vested right, and
stated that a pensioner did not have a
vested legal right to his pension-no title
passed. and If succeeding commissioner
was convinced that the 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
payments. A vested right in and to the
rate paid was not given. pension was a
2
was not assignable the rights of third par
| ties were not jeopardized by any subse-
quent action. The commissioner of pen
slons. said Judge Cox, not only possessed
the power to strike from the rolls fraudu-
lently obtained pensions and reduce un-
lawful ratings. but 1t was made his duty to
SO do by statutes. Therefore. the present
commissioner of pensions undoubtedly pos
sessed 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.
The Decision.
In conclusion. Judge Cox referred to the
decision Of Judge Bradley in the matter of
the mandamus against Commissioner Loch-
| ren. asked by Judge Long. and said that
while he had the greatest respect and con-
sideration for Judge Bradley's decision. he
believed that many points brought out dur
ing the hearing in the present case had not
been heard by Judge Bradley.
The act of December 21 1S93." said
Judge Cox. declares that a pension shall
De De deemed and held to be vested right to
the extent that payment thereof shall not
be withheld or suspended until after due
notice to the grantee of not less than thirty
days; the commissioner Of pensions after
nearing all the evidence shall decide to an
null, etc. The language as to q vested right
has no significance. The whole act amounts
to nothing but a prohibition to suspend or
withhold the pension without giving at
least thirty days notice Of a hearing, fol-
, lowed by decision upon all the evidence
1t was admitted that such notice was not
| given In the present case. The law Is man.
! datory In this respect and leaves nothing
! to discretion. Hence. If complainant in sists
| upon It, he is entitled to an Injunction
/ against further proceedings by the ccm-
| missioner under the notice that was actu-
| ally served. although not to the relief which
! he asks, based upon the merits of his
! claim to his existing pension The conclu-
sion Is that the commissioner cannot he
! enjoined as prayed in the bill from in any
way reducing or attempting to reduce or
! from modifying or disturbing the pension
/ of the complainant or his right to a rcsu-
| lar or prompt payment of the same under
his pension certificate of August 10, 1882 "
| Formal Injunction.
! Mr.. Hopkins. representing Judge Long.
stated that he desired the formal injunc-
| ton because Of the lack of the thirty-day
| notice to Judge Long, and an order to
that effect was signed. That merely pro-
| hibits Commissioner Lochren from pro.
! Gee ing under the notice Of January f. but
! do not prevent him from giving Judge
Long a similar one today, If deemed sd-
visable.
Contract Awarded.
The Superintendent of immigration bas