The National tribune., 1901-04-25
PENSION RULINGS.

1
| TO his wife on her application therefor,
| filed less than six months after the passage
| of the act. March ), 1899, and upon insult
| ticicnt evidence, as held by Department de-
cision dated Sept. D, 1900. The pensioner
| thereupon sought payment of the amount
of pension enormously and unlawfully paid
to his wife, but his application was denied
| by the Pension Bureau on the ground that
| there does not appear to be any authority
| of law for paying you $40 or otherwise
complying with your request for payment
| to you of the amount deducted from your
| pension and paid to your legal wife under
authority vested in the Commissioner OF
Pensions by the act of March 3, 1899.
The decision on pensioners appeal from
| this holding says tAsst Sec'y Campbell,
Feb. %, 190D: NO further explanation
of the refusal TO pay this money appears.
No reference is made to any law which
| was considered prohibitory of such pay
ment, and no reason is given for the COM
pliance with one part of Departmental de-
clSion and the failure to comply with an
other, or the direction given therein, than
is contained in the statement that there Is
| no authority of law for making the pay
ment. 1t is not supposed there was any
disposition to ignore or defy that direc-
ton, and yet it is not clear upon what
basis it is held there is no authority of law
for it. 1t can be only presumed, therefore,
that the division of the pension in the
made under a construction of the act of
March 3, 1S99 which obtained at the time
of such division, and this pension having
been once paid could not be paid again,
although the construction of the law may
have been changed.
'In other words, it is probably meant
that whatever has been done upon mere
judgment or construction of the law can
not be undone when such construction Is
different. This position has some support
in the well-established rule of practice
founded upon the learned opinion of the
Assistant Attorney General of Dec. 3, 1889
(6 2. D., 800, upon the law and practice
of reimbursement, and if the matter rested
alone upon construction of the law which
was afterwards declared erroneous, but
which contained no element of mistake of
fact or serious injustice to the pensioner,
the position might be tenable.
But there is much more involved in this
case than simple erroneous construction
of the act. The pensioner has been de-
priyed of one-half of his pension not only
upon mistaken judgment of what the law
authorizes, but upon mistake of fact as
well, for there is no such condition estab-
tiShed by the evidence as would bring the
case within the contemplation of the act,
even If the construction first given were
allowed to prevail. As declared in the for
mer decision, it is not shown that pension
er had actually deserted his wife. On the
contrary, his failure to live with her for 10
years or more has been plainly because
of her refusal to permit it. So that the
action in the premises by which the PEN
sion was divided and one-half given to the
wife was without authority of law or fact.
ION the point of the authority to pay
money again which had been already paid
under color of law it may be stated that
much depends upon the facts in each case,
and when, as in the present instance,
palpable mistake has been made in divert
ing the pension money to the use of an
other than the pensioner, he cannot be held
liable for the mistake or deprived of what
is his just due under his certificate. The
pension laws are very jealous of the rights
of pensioners, and seek in every way to
secure to them the pensions granted and
safeguard the same from being taken away
upon any pretext other than by direct au-
thority Of law. This is shown by such pro-
visions as sections aba, 4745, and 47S6,
Revised Statutes.
so, also, it will be found by reference
to the opinion of the Assistant Attorney
General, before noted, that various cases
are cited wherein the right to take away
the pension or part Of the pension of 4
pensioner is denied, even though the Gov
ernment has sustained a loss by some
wrongful or mistaken act of its agents. In
this case 1t was by no fault of the pen
sioner that he was deprived of one-half
his pension for IS months, and since that
action cannot be sustained by proper con-
structiOn of the law or the facts in the
case, there is no authority of law for keep
ing him out of the pension money thus
withheld and paid to the wife. 1t is,
therefore, clear that the pensioner may
not be legally denied this sum of S210,
and the refusal to pay it to him was er-
| roneOus. 1t is again directed, therefore,
that the same be restored to him."
DESERTED WIFE - ACT OF
NJ A . IT, @I,a, r.,
vision of pension of Henry Slagle under
the net of March 3, 1899, the pensioner
contested on the ground that the desertion
of his wife having occurred before March
3, 1899, the law was not applicable, con-
tending that to SO hold was in effect max
ing the law retrospective, whereas it should
properly be held applicable only to a de-
| sertion occurring subsequent to the act.
AS to this the decision says asst Sec'y
| Campbell, Feb. %, 190D: "Desertion Is
something which is continuous In its ma
| ture, and may be dated from any point of
| time embraced in the whole period of its
| duration. The claimant in this case, there
| fore, might with perfect legal propriety
have alleged that her husband deserted her
on March 4, 1899, or at any other time sub
| sequent to the passage of the act in gues-
| ton. The legal contention, therefore,
| that the act has been so construed as to
| give it retrospective operation is unten-
| able"
| The pensioner also contendnd that the
| act of March 3, 1899, is in conflict with the
| law providing that pension money shall
| inure to the benefit of the pensioner only
and is unconstitutional in that it depriyes
one of his property without trial by jury.
AS to this the decision says:
| This contention presents the Issue that
pension granted in conformity to exist
ing legal provisions Is vested right which
cannot be divested by subsequent legisla-
ton. In this connection it is proper to
note the fact that the soldiers military
service began In the month of August
1862, and terminated in the month of Aug
ust, 1864. The act under which he is now
in receipt Of SIT per month was passed
on March 3, 1888
ut cannot, therefore, be contended that
the laws under which he is now pensioned
were in existence at the time Of his en-
listment, and consequently entered into his
contract obligation with the Government.
1t is through the beneficence of Congress
that the soldier receives his present rating,
Independent of any contract obligation on
<he part of the Government. The right
Of the lawmaking power to modify exist
ing pension laws OF that character by sub
sequent legislation has never been ques-
toned by the Department. In the case of
Jackson Martin & i. D., 2G5) It is held
that: No pensioner has vested right TO
his pension This principle is reaflirmed
in the case Of Edwin Earl 40 7. D., 176),
The objection to the statute in question
based upon the contention that it depriyes
one of his property without trial by iurv
! fe untannbla tho raacor, +ho+ 3boro 4,