The National tribune., 1899-11-16

particular age. as this does at 62, and or
account of disability, as this act does.
"A pension when granted under the
| Mexican War act is granted during the
natural lives of the persons entitled thereto
or during the continuance of the disability
| for which the same shall be granted
The grant of pension in the act is Ia
| the surviving widow of the soldier. ii
she renlarry she is not the surviving widow,
| for she is no longer a widow and section
47GS, Revised Statutes, takes effect and
says the pension will. from the date of the
remaTiage. cease the widow being no
| longer entitled to a pension.
While it is not so stated in so many
words that pension, under the act of
Jan. 20, 1887, to widow continues only
during 'widowhood,' or the disability for
which pensioned,' it was evidently the
intent of Congress that the act should he
so construed, and that section 47OS, Re
vised Statutes. is not repealed by implica-
ton or otherwise by virtue of the provision
OF this act, as far as applicable to the same. "
LINE OF DUTY-PROVOST-MAR-
SHAL.-In the general law pension case
of the minor oT James Hayne, Deputy
ProVost-Marshai for Auglaize County, o.,
the death of the deceased was shown to be
due to conditions growing out of an injury
alleged TO have been incurred while in the
performance of duty as Deputy Provost
Marshal. In the absence of evidence of
persons having personal and positive
knowledge of the circumstances Of the
incurrence of the alleged injury, it was
contended that, nevertheless, incurrencc
in the discharge of duty should he pre-
Sumed from the evidence that said injury
was incurred during the period of service.
The decision assistant Secretary Davis,
Oct. IS, 1S99,) says:
This contention leads to an inquiry as
to the limitations which should be observed
in the application Of the doctrine of pre-
SumptionS TO cases which stand upon
different relations. There is manifeSt!y
material distinction in the application
of this doctrine between cases in which
the applicant was an enlisted man and
those in which the pensionable status is
based upon the rights of a Deputy Pro-
vost-M Marshal. 1t has been held in cases
where the applicants are enlisted men that
it IS in accordance with public policy TO
presume that such are in line of duty when
they are actually conforming to the regIl-
lations Of the army and the orders of their
superior officers. This is true of such, no
matter whether they be engaged in battle
or lettering around their tents. 1t is just
and proper that such presumption should
obtain, because the line of duty of an en-
listed man IS permanent and perpetual,
with no suspensions or Interruptions,
covering all his acts and doingS during
the period of his enlistment. Not so with
a Deputy Provost-Marshal. The duties
incident to such a relation are occasional
and spasmodic, with frequent cessations
| Such an officer is called upon to act as oc-
casion or emergency may require. and
| during the intervals Of leisure his freedom
| OF action is not limited and circumScribtd
| by army regulations, as in the case Of an
enlisted man. During the intervals oi
! inaction 1t would be consistent with the
| duty of a Provost-Marshal to pursue his
own interest and pleasure, barring the
| limitation, of course, that he should confine
| his actions to the territory embodied in his
own jurisdiction.
'lnasmuch, therefore, as a Deputy
! ProvOst-Marshal may not at all times dur
| ing the period OF his service be engaged in
the discharge of his official duty, any
injury which he may receive can not be
presumed to have been incurred in the dis
| charge thereof.
There is a material distinction created
| by statute between the pensionable relation
of a Provost-Marshal and that of an enlisted
man. Indicated by the fact that the former
| is pensionable only for wounds or injuries
| received, but not for disease incurred during
his period Of service. This distinction is
| manifestly based upon the consideration
| that a PrOvost-MarShal may to great
extent select his own environments and
surround himself with conditions conducive
TO the preservation Of his health, and is not
constantly hampered by the rigid eXac-
tons of army regulations, as is the case
with enlisted men. This view, relating
TO the obvious reason in the mind of Con-
gress for creating such a limitation in the
| pensionable status Of Provost Marshal,
lends much force to the position that nc
presumption obtains in behalf of such
an officer, since it involves the idea that
he is not constantly in line Of duty within
| the meaning of the pension laws.
| In this case it was incumbent upon the
applicant to show by competent evidence
| that the said Provost-Marshal incurred
the alleged injury in the discharge Of his
duty"