The National tribune. [volume] (Washington, D.C.) 1877-1917, 1895-06-13
LONG VS.. L0CHREN,
Court of Appeals Declares a Pension
Not a Vested Right.

| Tho Court OF Appeals of the District las
week decided adversely to Judge Long. ant
| sustained CommissioneriLochren in his claim
that a pension Is not vested right. The opin
ion, written by Justice Shepard, and concurred
in by the other Justices. also declares that the
| Commissioner has right to review the acts Of
his predecessors whore fraud or illegality /:
alleged.
The decision was reversal of that of Justice
| Bradley in Circuit Court No. !, whoro he al
lowed the petition of Judge Charles ID. Long,
of the Supreme Court of Michigan, for writ
of mandamns. By this writ Commissioners
Lochren was directed to restore his pension
from the present rating of $50 month to the
former rate of S72.
Justice Bradley first heard the case in De-
cember, 1898, and granted q writ as applied for.
In the meanwhile Congress had directed, by
its act of Dec. 81, 1898, that at least 80 days
notice must be given Of the intention to in
qure into the validity of pension. A de-
cison had also been rendered by Assistant
Secretary of the Interior John NJ. Reynolds
unfavorab!e to the position taken by Commits
siOner LOGhrcn. These left no doubt about
the irregularty of the proceedings on the part
of the Pension Office, and before Justice Brad
ley's decision was rendered Judge Lochren had
restored the pension.
He Immediately issued 80 days notice to
Judge Long to show cause, and the latter
brought an equity suit to restrain further pro-
ceedings. This case was heard before Justice
Cox in Equity Court No. /, and resulted in
decision contrary TO that delivered by Justice
Bradley. Technically, however, Judge Long
won, because Justice Cox decided that the 80
days notice must not be from the time the letter
left the Commissioners office. 1t must be from
the time the letter was delivered to the person
for whom it was addressed.
This case was, therefore, not suited for an
appeal, and new case was argued before Justice
Bradley on a further attempt by the Commits
sioner to reduce the pension. 1t is this case
which has been decided
"The act of the Com issioner Of Pensions in
this case, if he had the power to act at all"
says Justice Shepard, necessarily involved
the exercise of judgment and discretion; it
depended upon an Interpretation of the pension
laws and the application thereof to the facts of
REALTORS case. 1t cannot be said that this was
a matter of ready determination al free of all
doubt.
"In this case the ruling does not affect, or
attempt to affect, the right of relator to retain
the large sums of money which he has received
under the decision of Comm ssoner Tanner
That might present very different question.
The right of no third person has INTERVIEWED;
nor could it, because the pension is not trans
ferabe and not subject TO claims of creditors.
The pension certificate itself is the creature
of Departmental practice and has no function
analogous to a patent or grant. Tie claim to
the pension is not vested legal right. 1t is a
bounty that may be given recalled. increased
or diminished at the pleasure of Congress.
Walton VS.. Cotton. 10 How, 355 u. s. vs. Tel.
Ter, l07 U. S. 81, 6S; Frisbie VS.. o. s., 157 U. s.,
100, 1867
The concluding sentences of the opinion are
as follows:
"There are very strong reasons for holding
that where title has passed, or the rights of
innocent third persons have supervened, or
there has been very great lapse of time the
decision of the head Of an Executive Depart
ment should be considered as beyond the power
of n successor to disturb.
1.-The reasons arc quite strong also that
where credit has been given on money paid
over, there should be no recognized right of
review save for fraud or manifest Illegally;
but where the matter is one that involves
future recurring payments Of money, there
seems no good reason why succeeding incum-
bents Of the Office, charged with a present re-
sponsibility, should be restrained by the de-
cisions of their predecessors; but when salts
fed and convinced that error has been CON-
mitted, and that there is no lega! warrant for
the payment demanded, it would seem to be
their duty to rectify the error. 10
:" The recognition of the power in such cases
involves destruction of vested rights no |
impairment of the obligations of contracts, |
and no abridgement of the equities of third |
persons it is aquestion simply of the proper |
performance of present duty, the conscien- |
tious determination of present obligation. |
This seems to be rule that has prevailed in |
The Treasury Department in analogous cases. |
It is entirely within the regulation of Congress
f found unsatisfactory"
The opinion then refers to the passage of !
The act of Dec. 81, 1882 requiring 80 days
notice to be given, and says that it legaliZes
he course purSued by Commissioner Lochren.
With full quotation of this act Justice Shep-
lrd says:
lion is recognized as a vested right, and then
,nly to the extent that prevents its summary
suspension or abrogation. At the same time
he right to 'annul, vacate, modify, and set
lside the decision under which pension has
)een granted is distinctly and fully recognized.
Holding, as we must do. that the respond
mt, RS Commissioner Of Pensions, had the
,ower to review and modify the decisions of
ormer Commissioners in the REALTORS case and
educc his rating, and that the exercise Of this
,ower was matter of judgment and discretion
IL the discharge of his official duties, over
Which the courts have 10 control, it follows
hat the Judgment appealed from must be re-
'ersed, with costs to the appellee and the re-
ators petition dismissed"
Mr.. Thomas S. Hopkins and Mr.. Fred A.
5aker, of Washington, have represented Judge
.ong throughout this case, and, if possible, the
natter will be carried to the United States Su-
IRENE Court.
RECENT LITERATURE.