The National tribune. [volume] (Washington, D.C.) 1877-1917, 1902-12-18

Int by the War Department from its stand
point. 1t ought not to need any extende,
discussion to demonstrate it to be not onl,
the province, but the duty Of each Execu
tive Department to. itself, interpret tn,
laws governing its own administration
more especially when such laws are upol
and that the construction of the statutes
by one Department is not binding upol
Ianother Department; fortiori, when thu
law so construed has nothing whateve
to do or in common with the question a
issue and the principles involved befor,
the other Departments. (See opinions 9
Attorneys General; 8 Op., 800; Z OPP, 200
0 OPP. sc; II OPP, 40. See also Z L. D.
1907
"a lawful administration of the pension
laws is impossible without a knowledge o
certain facts, many of them being o.
record, and of record only, in the archive:
of the War Department. 1t is the las
manned depository that this Department
must look for a transcript of its record Of
facts, the same as do other branches Of
the Executive in matters pertaining t.
| them. 1t is. however. for the Department
of the Interior, i'll matters relatiag to pen
sion, to draw its own conclusions from
such facts Such must be true from the
very necessities of the case under the law
| ~
Depa so far as it may-collaterally
even--have TO do with the question before
this Department. is entitled to and is given
great weight. Nevertheless, when this De
partment has the facts before it in q pen.
| sion claim it must, under the law, reach
its own conclusions. 1t cannot shift the
burden or divide the responsibility by ac-
cepting, against its own Judgment and con-
science, the conclusion of another Depart
ment upon a question wholly incumbent
upon this Department to decide. (Sae opin-
ion in the case of David H. Dyer, 8 P. D.,
80
THE question as to the necessity OF
muster has been frequently discussed by
this Department, notably and exhaustive
iy in the cases of Randolph NJ. Manley Is
p. D., 295, and 20 Atty. Genl. Op., 32g
and Daniel Il. Tyler az P. D., $3.50, it
being conclusively demonstrated in both of
said opinions that muster in in claims aris-
ing under the pension laws is not. neces-
s;irily, a question affecting the pensionable
status of soldier. Section 1893, r. s.,
expressly excludes it, and the principles
laid down in said opinions upon this mat
ter will not be departed from.
''The Department is aware that, under
the rules and regulations of the War De-
partment, the status of soldier in the
volunteer service and that of one in the
Regular Army is not the same at enlist
ment. 1t is not unmindfuf that, in the
case of volunteer troops, a muster into the
United States service is deemed necessary
by the War Department to transfer, so
to speak, such troops from the State SER
vice into the service of the United States.
These facts, however, do not concern the
present issue, which is one Of reasonable
status, for section 1858, X. S., is stat
ute of general application in pensio'
cases and includes, by its express terms,
or 1icfo vpI n
the military or naval service of the United
States
1.-The opinion in the case Of George W.
Hill e p. D., 23J) has been cited as hold
ing that this Department would be bound
by the conclusions of the War Depart
ment as to the length of service of a sol
der. a careful review of said opinion DEM
onstrates that it does appear to so hold,
but a thorough investigation shows that
such a conclusion was reached by a mis-
application Of the rule of the Supreme
Court of the United States, laid down in
the opinion in the case Of United States
VS.. johnson Q24 U. S., 253). As mat
ter of fact, said rule has no application
whatever to the issue in the Hill case,
and j reference to the cited opinion of the
United States Supreme Court makes the
truth Of this statement clearly apparent
without discussion. Under such circum.
stances the holding referred to in the Hill
case. supra, is hereby expressly over
ruled.
An attempt has been made to show
notwithstanding the record in this case,
that Human did not enlist on Sept. Z,
1862, and the War Department has been
asked to amend its record in view Of GER
tain facts ELECTED at q special examina-
ton, but said Department has refused to
amend its record. and holds Sept. z, 1862,
as the date Of Humans enlistment.
"The record showing that claimant en-
listed on said aforementioned date, and the
record not having been impeacned, this
Department accepts the record date of his
enlistment, and it therefore follows that
Human was in line Of duty when cap
tured, some three days afterwards, while
going with other comrades to the rendez-
vDus.
THE Department finds as fact that
Jefferson NJ. Human enlisted on Sept. Z,
1862; was captured on Sept. 10, 1862;
was mustered in ON June 80. 1868, and
was discharged on July IL. 1865. 1t also
finds as a fact, basing its finding upon
the record, that Human was in line ct
duty when captured.
1T finds as matter Of law that the
military service Of Human commenced
from the date of his enlistment, viz, on
Sept. Z, 1862.
I'm answer to interrogatories pro-
pounded. the Department replies.
II. A soldier may be pensionable for
disability incurred prior to the date Of
his muster into the service OF the United
states. the question always being, Was
he in the service and line Of duty when
the disability occurred?
~ The Department declines to alter
or modify the practice which has been
uniformly followed since the passage of
the act of June 81 1890. SO far as the
dates OF enlistment and muster in affect
the length Of service in a claim under said
act. See cases of William N. Veach 12
I. D., 2l3l: John S. Robinson III p. D.,
300; John Trout 81 P. D., 435); Nancy
Kathon % p: D., 162l; George ". Fleek
q p. D.. 343); and William N. Davis ID
p. D., 1888.
"The departmental opinion promulgated
in this case on Oct. 80, 1901, is adhered
to, the action therein appealed from being
reversed"
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