The National tribune., 1894-01-18

| the Revised Statutes 6fstke United States, and
contains the proviso: " Tkat the Commissioner
OF Pensions shall havstbasame power As here
| tofore to order special eSzminations whenever,
| in his Judgment, thetsxme may be necessary,
| and to increase or reduce the pension. according
| to right and justice" Becuons 4771 and 4772 are
| made up of Sec. "a of ahe aCt of March 3, 1873,
| II Stat q. s., 578:
THAT in all cases ofppplication for the pay.
| ment ofpensions to insalidspensioners to the 4th
day of September of as odd year, the certificate
of an Examining Surgeon, duly appointed by
the Commissioner Of Pensions. or of Surgeon
| of the Army or Navy, stating the continuance
| of the disability for which the pension was
originally granted describing it, and the de-
| gree of such disability at the time of making
the certificate, shall be required to accompany
| the vouchers, and a duplicate thereof shall be
filed in the office of the Commissioner of PEN
sions; and If in q case of continued disability
it shall be stated at degree below that for
which the pension was originally granted. or
was last paid, the pensioner shall only be paid
for the quarter then due at the rate stated in
the certificate.
PT0Uided. That when pension shall be
granted for disability consequent upon the
loss of a limb, or other essential portion of the
body, or for other cause which cannot, in whole
or IN part, be removed. or when disability is
certified by competent Examining Surgeons to
the satisfaction of the Commissioner of Pen
sions, to have become permanent in degree
equal to the whole rate of pension, the above
certificate shall not be necessary to entitle the
pensoner to payment.
and proUided further, That this section shall
not he construed to prevent the Commissioner
of Pensions from requiring more frequent
examination if, in his judgment, it is nee
essary."
This act provides for biennial examinations
and Surgeons certificate thereof showing the
degree of disability at the time of making the
certificate, which shall accompany the vOuch-
ers, and duplicate be fled with the Commits
soner, and that if the disability shown is below
that for which tho pension was granted the
pensioner shall only be paid the quarter due at
the rate stated in the certificate. 1t contains
two provisos-1st. That such certi6 cate shall
not be necessary in cases of loss of limbs or
other essential portions of the body. or when
the disability has been cert flied to the Commits
sioDer Of Pensions to have become permanent
to degree equal to aCh0le rate Of pension. I'd.
That this section shall not be construed to pre-
vent the Conn missioner from requiring d more
frequent examination.
1.-The office of proviso" i'm a statute "gen-
orally is either to except something from the
eBactiDg clause, Or TO qualify or restrain its
generality, or TO exclude some possible ground
of misnterpretatiOn of it as extending to cases
not intended by the legislature to be brought
within its provisions" Minis rs q. s., Is
Pet, 445)
so ESTIMATING THE FIRST PROvIsO
1t is clear that the biennial examinations shall
not be necessary in cases of loss of limb or
other essential parts of the body. or in cases of
permanent disability to the degree equal to the
whole rate of pension, and that such classes of
cases excepted from the scope and purposes
of the act. The Object of the required
biennial examinations is to indicate, in q
case of varying disability, the degree of such
IL at of ha mi
The object of the special examinations
that are permitted to be required by the
Commissioner is the same, and the pur-
pose of the second provso is Ito exclude some
possible ground of misintcrpretation," by
which the express provision for biennial exam
nations should be held to exclude the power of
the Commissioner to tor,ler special examna.
TONS Tho power Oft the Commissioner is to
order mere frequent examinations. In what
cases? Clearly in those OF varying disability
and not in those of the loss of some essential
part of the body, as an arm, in those that
have been certified to the satisfaction OF
Commissioner to have become permanent. In
such cases there is no occasion for examina-
ton. The law fixes the rate of pension and
when the pensioners status has been determ-
iRed for permanent disabilities the purpose of
examinations has ceased, and being useless they
are no longer required.
The act of June "a. 1879. section 3, having
repealed the sections 477l and 4772, Rev. Stats,
u. c. would have revoked the power reserved
to the Commissioner to order more frequent
examinations in the cases contemplated. and
therefore that act contains the proviso that the
Commissioner shall have THE SAME POWER AS
HERETOFORE.
By no proper construction can it be main
tanned that any power is given. Congress
is not to he presumed to authorize the ordering
of senseless and useless examination.
The very language used in that connection,
"to increase reduce the pension according to
right and Justice can apply only to varying
disabilities.
The respondent ordered the pension of the
relator to be suspended pending a special
medical examination TO determine the present
degree of disability"
His predecessor, in 1889,
DECIDED. LAWFULLY,