The National tribune. [volume] (Washington, D.C.) 1877-1917, 1903-04-30
DEPARTMENT NEWS.
DIVISION OF PENsIoN-FRAUDULEN SER.
VICE.

DIVISION OF PENsIoS-FRAUDULEN SER
VICE.
In the application of Mary J. Powell
for half her husbands pension. in accord
ance with the act of March 3. 1899. the
Pension Bureau held that she was not en-
titled, as the pensioner had procured di
vorce from her. On appeal to the Secrc-
tary of the Interior it is held asst Sec
rotary Campbell, March 8, 1909:
| THE evidence in the case disclOSes n
| certified copy of Il decree of divorce be-
tween these parties, rendered by said court
as above stated, regular on its face. and
reciting jurisdictiOnal facts sufficient
prima facie, to confer jurisdiction on the
court. Claimant had no actual notice of
the divorce proceedings and did not ap-
pear.
Claimant is n resident of the State of
Ohio, and under the laws of that State
is permitted to attack the Indiana decree.
collaterally and without direct proceedings
in the court where the decree of divorce
was rendered. Cox V. Cox, 10 Ohio St,
500: Am. Rep, 415; Pennywit V. Foot,
q Ohio St, GOO; Van Fossen V. State,
Ibid. 81: Al Am. Rep, 5O7: Spier V.
COrll. 33 Ohio ST., 236. and Cross V. Arm
strong, A Ohio St, 613-627)
1T does not follow, however. that she
should be permitted to so question the
validity of judicial decree in a proceed
ing of this nature before an executive
branch of the Government, or that the
Bureau of Pensions or this Department
should be burdened with duty which the
law has placed exclusively in charge of
the courts or the judicial branch of the
State Governments.
Claimant should test the validity of
her husbands alleged fraudulent divorce
in the court where the divorce was pro-
cured or impeach its validity by proper
proceedings in another court.
''Public policy and administrative duty
require that questions of this nature
should be left to the courts, and that
parties questioning the validity of decree
or judgment of court of general jurisdic-
ton over the subject-ma tier, cOllaterally,
in a proceeding of this nature, should be
relegated to the courts for their remedy.
This subject was carefully considered
by this Department in the recent case of
Cooper V. Cooper, decided Feb. "a, 1908,
wherein the same conclusion was reached.
The decree in that case was procured in
the State of Missouri. the wife being 4
resident of the State of Iowa.
$50 long as the decree. prima facie valid
on it's face, is judicially unimpaired. it
should be accepted by the Pension Bureau
and this Department as conclusive of the
marital status of the parties, mt least sc
long as the parties to the decree are alive
and the courts are open to their relief.
"The evidence in this case as now pre-
scented shows that claimant ceased to be
the wife of pensioner Feb. 10. 1896. and
such being the accepted fact she is not
entitled to onekalf his pension under the
act of March 3. 1899.
'The action appealed from is accord,
ingly affirmed
| SERyICE-ACT OF JUNE %, 1890.
In the pension claim under the act OF
June 81. 1890. of the widow of Joseph n
: Randall, the Pension Bureau held that as
it appeared from the record of the Wal
Department that the soldier was ''improp.
erly enlisted" was discharged for gen
eral debility and worthless" and was ply
sically disqualified for service. and, as
shown by certificate of disability upon
which he was discharged. performed no
military duty, his widow was not entitled
to pension under the act of June p. 1890,
which is based on service" of so days
or more On appeal it is held asst Sec
rotary Campbell. March u. 1909:
AN analysis of the records of the War
Department shows that upon their face
they are inconsistent and contradictory.
The certificate of disability for discharge
, is not Il record of any more force or dig
, nifty than the other records. So far as the
i record shows, the soldier was enrolled
Dec. ), 1868, and was present with his
i company and regiment until Feb. 5. 1864
, |
rolls. That he was in hospital or on sick
furlough from that time until discharge
can not affect the question of ser
| vice
j 1T will be seen that this soldier was
, paid for seven months and 2S days of ser
vice. The statement that he was imprOp
erly enlisted does not go to the gist o!
the question. The fact remains that he
was enlisted and held to service for nearly
, 10 months and paid for nearly eight
months. To hold that the soldier did moi
+ serve for 80 days during the war of the
rebellion would be to fly in the face of the
i records.
This Department has never said what
shall constitute reasonable service under
the act of June y, 1890, and does not pro
, pose to do so at this time. Each case
must stand upon its own facts. Where
through the misconduct or fault of sol
, der, he was punished or put under ar
rest. it has been held that he was moi
! rendering pensionable service under said
act See case of George W. Flick, T.
,, D., 343.
But here is soldier who was regular.
~ enlisted and accepted into the service
and while for the greater part of his ser
, vice he was in hospital, it can not be held
, that he was not rendering pensionable ser
vice. Sickness in Il hospital is in reason
service of the most exacting kind. II
, may be true the soldier should not have
been accepted, and that he had Il serious
; disability when he was accepted. but the
! fact remains that he was regularly enlisted
and held to service. 1t was not his fault
that the Government accepted him as a
: soldier. 1t is too late to say after enlist
ment and 10 months of service that such
enlistment was mistake and therefore
the soldier rendered no service.
'Some general rule must be adhered to
in this class Of cases in order that sub
: stantial justice may result. If a soldier
in hospital, racked by pain or disease. is
to be held not to have rendered service
. under the act of June 81, $780, during the
time he was in hospital, the effect and in
tent of the law would be absolutely de
fcated in many instances.
In this case the statements in the dis
charge certificate that the soldier did NOT
, reach his company and rendered no ser
vice are inconsistent with the other
records. This soldier is aided by the
usual and ordinary Prescriptions that
!. operate in this class Of cases, and his ser