The National tribune., 1903-05-21

by a gunshot wound which caused almost
complete anchyiosis of the shoulder joint,
and the muscles surrounding it were great
ly wasted. He could raise his arm 45
degrees and could move his elbow in one
direction to q right angle, but the rotary
motion of elbow was lost so that he could
not turn the palm of his hand upward
The forearm could not be turned. The
| wrist motion was unimpaired, except by
| the atrophy which affected his whole arm.
, The functions of the hand were complete
| " destroyed.
! Comparing this soldiers arm with
that of William Cline, above referred to,
who was allowed $36, it will readily be
seen that soldiers disability is as great,
| if no. greater than that of said Cline.
"It would be unreasonable to assume
that an arm is not totally disabled until
every joint is stiff and immovable. The
fact that claimant has some power TO
move his shoulder. while the balance OF
the arm is completely useless, does not
| indicate that the arm can be used tor any
practical purposes.
Soldiers arm appears to be neither
useful nor convenient. and the Depart
ment believes that there has been shown
to exist n total disability of the same
within the meaning of the statute.
'The action of rejection is accordingly
reversed. and you will readjudicate the
claim in conformity with this opinion
INDIAN MARRIAGE-LEGITIMAC
In the pension claim of the child of
Rabbit Bunch Cherokee Indian) the Pen
sion Bureau held that no lawful marriage
had taken place between the soldier and
applicants mother. and therefore appli-
cant was not the legitimate child of the
soldier and SO not entitled to pension.
| The decision on appeal states asst See.
Miller, April 10, 1909:
Marriages according to tribal custom
are valid in the Cherokee Nation of In
dans, and according to such custom no
| form, rite. or ceremony is essential to the
validity of such marriages, the mere TAX
ing up and living together as husband and
wife of Il man and n woman, neither hav-
ing former wife or husband living, being
sufficient to constitute such relation Gus
tomary marriage.
''The evidence herein shows this claim
ants parents were married according to
said tribal custom, and that she is the
soldiers legitimate child, but as the
widow. her mother, is yet living, and has
not forfeited her pensionable status, ap-
pcllant has no title to pension, and her
claim was properly rejected on this
ground"
REsToRATION-TwO PENsIoNs-ACT OF
MARCH 3, 1901.
In the case of the widow Of Jonathan
Hale, claiming restoration of general law
pension, under the act of March 3, 1901,
the Pension Bureau held that as claim
! ant was now in receipt of pension (under
act of June 81, 1S9O) as widow of VIM.
! III. II. Butterbaugh, she was not entitled
to restoration of her former pension un-
der the general law as widow of Hale;
holding such restoration to be contrary to
the following provision of the act OF
March 3, 1901:
| k,I Id fy,rfh fhnr W
such widow is already in receipt of pen
sion from the United States she shall not
be entitled to restoration under this act.
The decision ON the appeal from this
holding states asst Sec. Miller, April 10,
1909:
"Section 4715. under the title Pen
sions,' of the Revised Statutes provides
| that
| "'Nothing in this title shall be so con-
strued as to allow more than one pension
at the same time to the same person or
to persons entitled jointly; but any pen
sioner who shall SO elect may surrender
his certificate. and receive in lieu thereof.
which he would have been entitled had
not the surrendered certificate been issued.
But all payments previously made for
any period covered by the new certificate
shall be deducted from the amount al
lowed by such certificate
"It is contended herein that this claim
ant has. under said section, the right of
election between her present pension and
restoration. under the act of March 3,
1901. to her former pension, nOtwith-
standing the express prohibitory terms of
the second prOviso of that act; the Bu-
reau holding. however, that she has, be-
cause of said proviso, no title to such
restoration.
"To give the latter effect to said proviso
an implication of repeal by it of or
construction of it as an exception to said
section 4715 is necessary. Such repeats
or exceptions are, however, not favored
in law; and if any other construction of
said proviso can fairly and consistently
be made. rs being its probable intent,
or an exception to said section AIS need
be held, such construction should be
adopted, unless the meaning of the pro-
viso is clearly unquestiOnable and beyond
doubt.
"a considerable doubt arises, however.
from the apparent conflict between said
proviso and the general provision of said
sections as to the right of amy pensioner'
to elect pension: aud it is not believed
Congress intended, in said proviso. to re-
peal or to create an exception to that sec
ton. Said proviso may fairly be held to
have been, rather. an affirmation. mere
ly, of the prohibition of said section as
10 allowing uOuDIe peHsiou, IedNlhS lhe
succeeding provision, as to election, of
that section wholly unaffected. Were this
prOviso not in said act the latter might,
with considerable reason and authority,
be held to allow double pension, notwith-
standing the prohibition of said section,
being a subsequent affirmative statute,
remedial in nature and granting new
benefit, and, therefore, constructively
cumulative, and as the later expression
of the legislative will, n repeal of or ex-
ception to the prohibitory provisions of
section AIS. Switzerland on Stat. Const.,
secs 2O2-204; Black on Inter. of Laws,
115.)
Congress has invariably, in creating
new right of pension, incorporated some
such inhibition as to double PEN
sion. evidently to prevent the pos
sb.e construction, were such inhibition of
section AIS not repeated, that said sec
tion would not apply to the new right.
The act of July 3D.. 1882, provides that no
person in receipt of a pension under a
special act shall receive in addition there
to pension under the general law, unless