The National tribune., 1901-05-09
PENSION DECISIONS.
Action of the Assistant Secre.
tary of the Interior in Sew
eral Appeal Cases.

MARCH b, 1S99-NOIlCE Ot Al
PEAI4-In the case of Emily Ellis '
Leroy Ellis for the division of the so
dier's pension in accordance with the &C
of March 3, 1899, it is held asst See
Campbell, Feb. %, 1901) that in case
of contest over the division of pension un
der the act of March 3, 1899, the ap
pellee is entitled 10 notice of the appea
and copy thereof and reasonable time il
which to file a brief and argument in sup
port of the Bureau action appealed FROM
The decision says: The papers in tn
case show that issue was joined between
the parties Jan. %, 1900, at which dat
the soldier filed an answer TO his wife
application, in which he denied deSertlon
and also denied that his said wife was
woman of good moral character. IpoI
the issue thus framed considerable testi
mony was filed by both parties, where
upon your Bureau, on Aug. 8, 19Oo, or
dered q special examination 10 take sucl
testimony as will settle beyond question
whether claimant is a woman of goec
character
AN examination was had, and the tes
timony of the soldier was taken. 1t does
not appear that the wife had any notice
of this special examination, and her ties
timony was not taken, although recon-
mended by the Special Examiner.
There is nothing to show that the ap
pellee has been notified of this appeal
and she has filed no answer to the appeal
or in any manner indicated that she mas
any knowledge thereof
81 am clearly of the opinion that in
cases of contest over the division of pen
sion under the act of March 3, 1899, the
appellee is entitled to notice of the ap,
peal and a copy thereof and reasonable
time in which to file a brief and argu-
ment in support of the Bureau action ap-
pealed from, and that in the absence OF
such notice to the appellee the appear
should not be passed upon by this De-
partment.
LAS there is no rule of practice appli-
cable TO this class of cases requiring ser
vice of notice by the appellant, this ap-
peal will not be dismissed, but the papers
are returned to your Bureau with the or
der that Leroy Ellis, appellant, shall
within 30 days from the receipt of a copy
of this decision cause TO be served on
Emily Ellis, appellee, or her duly-authOr-
ized attorney, a copy of his appeal in this
case, and file in the Bureau due proof
of said service; that within 80 days after
receipt of said copy of appeal said ap>
pellee may, either in person or by attor-
ney, file in the Bureau a brief or argu-
ment in answer TO the contention of the
appellant, or in support of the Bureau
pers shall be forwarded by the Bureau
to this Department for decision OF said
appeal"
PRISONER OF WAR-DISLOYAL-
TY-DURESS.-In the pension case OF
Lorenzo Pruett, colored, it is held ASST
Eec'y Campbell, March 80, 1901) that "A
prisoner of war who, while under actual
duress and in well-grounded fear of his
life, is forced by his captors 10 engage
osrcf n
country, and is disabled while so engaged,
without any free will on his part in such
disloyal participation, is pensionable on
account of such disability"
The soldier, who was a member of the
1Q6th~U. S. C. T., was captured in Sep
tember, 1864, and alleges incurrence Of
injury on which he claims pension, while
work he was compelled to do-being
negro and being treated in effect as an
escaped slave. The Pension Bureau re-
jected his general law claim on the ground
that his disability being incurred as stated
was not incurred in line of duty. AT the
same time QS96) it was held that his PEN
sion nnder the act of June -, 1890, should
not be discontinued on the ground of dis
loyalty, because the apparent disloyal
acts were clearly committed under COM
pulsion.
The decision says: "Can a disability
which is thus incurred be considered as
having been incurred in line of duty IN
the service of the United States, and PEN
sion on account thereof be allowed accord
Ingly?
Il am clearly of the opinion that dis
ability SO incurred may be thus consid-
cred and such pension allowed.
1T is manifest that, as the Commis-
sioner of Pensions held in 1896, the work
en- the rebel Notifications stated TO have
l. - IL ,-pt
untary aiding and abetting of the rebel
hon, and could not operate to debar him,
under section 4716 of the Revised Stat
ltes, from his present pension.
THAT he was then in the military ser
vice of the United States, however, Is
unquestionable, although the service or
work in which he was at this time en-
ployed was not that Of the United States.
The Commissioner Of Pensions in his de-
cision Of 1886 has evidently used the
phrase in the latter sense only.
This claimant being then an enlisted
and undischarged soldier Of the United
States army, he was in the service of the
United States for pensionable purposes,
and it is necessary for him to show only
that the alleged disability was incurred
while he was in line of duty as a soldier.
"It is not disputed that he was in line
of duty when captured. He was taken
prisoner, it appears, during a severe en-
Ragement In which only seven others, out
of a company of 107, thus escaped death,
80 being killed and 8 taken prisoners.
''It has uniformly been held that a sol
der is in line of duty, for pensionable pur-
poses, during his confinement as pris-
oner OF war, if ne was in the line Of duty
at the time he was captured, and that he
is pensionable on account Of any disability
Incurred while such prisoner.
1T is unquestionable that a soldier who
contracts a disability from scuryy, for in
stance, because OF improper diet fur
nished him while he is such prisoner OF
war, is pensionable on account of said
disability; OF, il he should refuse to con-
sumo such diet and it was forced down
his throat or he was beaten so as TO in
jure him physically, it seems equally un-
questionable that he would be pension
able on account of such injuries also. Or
Il he should be shot while attempting to
escape from such Imprisonment, It cannot
be doubted that he, or his widow in case
of his death, would occupy pensionable
status.
1.-The distinction between these plain
cases and the case of this claimant is not
clear. He was, it appears, actually forced
by physical violence to work on the forti-
fcations, and, when there, was forced
still further, by actual physical violence,
TO exert himself to the utmost In per-
forming the work required of him, and
while so forced was injured. He might,
II Is true, have resisted, but resistance
meant at least a stripping and beating, If
not death; and he doubtless knew naught
else te do, and there was, probably, from
cfa n ole fnr