APPEALS IN PENSION CASES.
R. E. P. O. R. T.
OE
ASSISTANT SECRETARY WEBSTER DAVIS
º TO THE
º
SECRETARY OF THE INTERIOR
FOR THE
FISCAL YEAR ENDED JUNE 30, 1898.


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a c e i , 4- ~~~~
APPEALS IN PENSION CASES.
R. E. P. O ER T
OF
ASSISTANT SECRETARY WEBSTER DAWIS
TO THE
SECRETARY OF THE INTERIOR
FOR THE
FISCAL YEAR ENDED JUNE 30, 1898.
&
APPEALS IN PENSION CASES
\ DEPARTMENT OF THE INTERIOR,
Washington, October 1, 1898.
SIR: I have the honor to submit my annual report relating to appeals
-in pension and bounty-land cases for the fiscal year beginning July 1,
1897, and ending June 30, 1898.
The work in connection with these appeals is performed by the board
of pension appeals under my personal supervision, and relates to
appeals to the Secretary from the adverse action of the Commissioner
of Pensions in claims for pension and bounty land; to the disposition
of such other appeals from the Commissioner of Pensions as involve
questions of attorneyship and fees in pension cases; to the rules of
practice; and to all correspondence with claimants or attorneys having
reference to such appeals. x
It will be remembered that on January 31, 1896, your predecessor
issued an order creating the division of pension affairs, to take the
place of the board of pension appeals, which had been established
under the provisions of law, and to which the entire force of the
board of pension appeals was assigned for duty. º
In addition to the legitimate work of the board of pension appeals,
there was transferred to the division of pension affairs all matters and
correspondence relating to pensions which had hitherto been conducted
by the patents and miscellaneous division of the Department.
As under the existing appropriation there could be no increase of the
force, and in view of the additional work attending this transfer, and
especially in view of the unprecedented number of new appeals, the
organization of the division of pension affairs was found by experience
to be wholly impracticable; hence, at my suggestion, on November 20,
1897, you issued an order revoking the order of January 31, 1896, and
reestablished the Board of Pension Appeals, as provided for in the
appropriation bill, and returned to the patents and miscellaneous
division the work formerly assigned to that division.
Experience has shown that this change has been highly beneficial.
It has enabled the Board of Pension Appeals to confine its labors solely
to the considerstion of appeal cases, without the annoyance and confu-
Sion attending the increase of work which had no connection therewith.
Under the present organization, all the decisions are carefully
** - 3
4 REPORT OF AssistANT SECRETARY OF THE INTERIOR.
reviewed by the chairman and two vice-chairmen before they come to
my hands, when they are again carefully examined, and revised, if
necessary, before approval. -
The following consolidated statements show the classification and
amount of work performed during the period to which this report
relates, namely: *
Original appeals.
Appeals pending July, 1897. ------------------------------- ---------. 1,742
Appeals filed from July 1, 1897, to June 30, 1898. ---------------------- 12, 132
Total ---------------------------------------------------------------- 13, 874
Appeals wherein Pension Bureau was sustained - - - - - - - - - - - - - - - - - - - - - 3, 173
Appeals wherein Pension Bureau was reversed. - - - - - - - - - - - - - - - - - - - - - - 391
Appeals dismissed -------------------------------------------------- 867
Total ------------------------------------ - - - - - - - - - - - - - - - - - - - - - - - - - - - - 4,431
Appeals pending July 1, 1898. ---------------------- = • * * * * * * * * * * * * * * * = 9, 443
Fee appeals.
Appeals pending July 1, 1897 ---------------------------------------- 68
Appeals filed from July 1, 1897, to June 30, 1898 - - - - - - - - - - - - - - - - - - - - - - 549
Total ---------------------------------------------------------------- 617
Fee appeals wherein Pension Bureau was sustained... - - - - - - - - - - - - - - - 331
Fee appeals wherein Pension Bureau was reversed. - - - - - - , . . . . . . . ---. 19
Fee appeals dismissed.----------------------------------...----------- 79
Total ---------------------------------------------------------------- 429
Fee appeals pending July 1, 1898 ------------------------------------. 188
Motions for reconsideration.
Motions for reconsideration pending July 1, 1897- - - - - - - - - - - - - - - - - - - - - - 74
Motions for reconsideration filed from July 1, 1897, to June 30, 1898. -- 626
Total ---------------------------------------------------------------- 700
Motions for reconsideration overruled ... --- --------------------------- 456
Motions for reconsideration sustained -----........... -----------..... 71
Motions for reconsideration dismissed ------...--...................... 19
Total ---------------------------------------------------------------. 546
Motions for reconsideration pending July 1, 1898. -----........ ---. . . . . 154
Correspondence.
Letters referred to the Commissioner of Pensions .... . . . . . . . . . . .------------ 7,757
Letters written relating to appeals...---------------------...----...--------- 5,063.
Letters written in the Assistant Secretary's room, miscellaneous.----...----- 14, 242
Total letters Written.-----------------------------------------------. 19,305
REPORT OF ASSISTANT SECRETARY OF THE INTERIOR. 5.
The following comparative statement will show the number of appeals
and motions which have been filed and disposed of each year since July
1, 1894:
Filed from July 1, 1894, to June 30, 1895- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - ... 5, 227
Filed from July 1, 1895, to June 30, 1896. -- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -. 5, 122
Eiled from July 1, 1896, to June 30, 1897 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - 5, 862
Filed from July 1, 1897, to Jnne 30, 1898-- - - - - - - - - - - - - -, -----...----. * * * * gº mº º is e 13, 307
Disposed of during the year ending June 30, 1895 - - - - - - - - - - - - - - - - - - - - - - - - - - 6, 576
Risposed of during the year ending June 30, 1896 --------------------------- 4,605
Disposed of during the year ending June 30, 1897 -----...----------------- ... 5,075
Disposed of during the year ending June 30, 1898 - - - - - - - - - - - - - - - - - - - - - - - - - - - 5, 406
It will be observed from the foregoing that the constantly increasing
number of appeals to which your attention was invited in my last annual
report has continued. - *
The number of appeals and motions for reconsideration filed during
the fiscal year ending June 30, 1898 (13,307), is unprecedented in any
one year in the history of the Board of Pension Appeals since its organ-
ization—fifteen years ago. From a careful examination of the records
it is found to be far in excess of the number filed in any two years
preceding. -
It is also observed that the proportionate increase has continued from
July 1, 1898, to October 1, 1898, the date of this report, and that there
are now pending 11,820 appeals and motions for reconsideration.
Of the number of appeals and motions for reconsideration disposed
of during the fiscal year, 965 have been dismissed. This has been done
for various reasons; many upon recommendation by the Commissioner
of Pensions for reconsideration by the Pension Bureau; some at the
request of appellants, and some on account of changed conditions which
rendered such action necessary. g
Of the remaining number (4,441), in which decisions have been ren-
dered, there have been 481 reversals, or 10.83 per cent. -
The appeals filed involve nearly all legal and medical questions
arising in pension claims, and the endeavor has been to adopt a uniform
ruling upon all the issues presented, so far as practicable.
Upon an examination of the files it is found that a very large pro-
portion of the appeals is based upon medical grounds. This is espe-
cially true in claims filed under the act of June 27, 1890. Many of
these original and increase claims under said act have been thus
rejected, from which action arose the appeals. They also include many
cases where the pension was reduced or wholly terminated under the
preceding administration and a claim for restoration has been denied
by the Bureau of Pensions.
In view of the fact that the average age of the surviving soldiers of
the war of the rebellion is now upward of 60 years, and very few, if
any, are free from physical disability, while the majority are seri-
ously disabled, I have been disposed to give the act of June 27, 1890,
a liberal construction, with the view of granting relief in such cases
in the spirit which prompted the enactment of the law.

6 REPORT OF ASSISTANT SECRETARY OF THE INTERIOR.
Hence, on February 23, 1898, I directed by special order that claims
under the act of June 27, 1890, should be examined with great care,
and that in claims for restoration, if the certificate of examination
indicated that the pension originally allowed was warranted under a
just and impartial construction of the law, the appealed cases should
be returned to the Bureau of Pensions for a special examination, or
another medical examination, or both, as might be deemed necessary.
It was held to be lawful and just that such pensioners should be
granted a fair hearing, and be allowed an opportunity to show by com.
petent proof that they were disabled in the degree and on account of
the causes alleged at the date when the pension was reduced or
terminated. r
In connection with this class of claims it is also observed that a
large number of appellants have taken issue with the Commissioner of
Pensions upon his refusal, to grant them the benefits of the act of March
6, 1896. -
Said act provides that where one or more declarations for pension
have been filed under the act of June 27, 1890, and under a new decla-
ration the claim should be allowed, such pension shall date from the
time of filing a former declaration, provided the evidence in the case
shall show a pensionable disability to have then existed.
A liberal and just construction of this provision has been directed, to
the end that such claimants shall not be deprived of what they are
justly entitled to under the provisions of law. /
Numerous appeals have been filed which relate more particularly to
the rules of practice obtaining in the Bureau of Pensions, which, it is
contended by appellants, are all adverse to the interests of claimants.
While there has been no disposition to interfere with the details of
the administration of the Pension Bureau, yet the contentions of these
appeals rendered it necessary to give them a fair and impartial consid-
eration and render a decision thereon.
Order No. 352, issued by the Commissioner of Pensions on December
24, 1897, prohibited the consideration of increase claims within one year
of date of last adjudication in the case.
In the appeal case of John W. Granless (9 P. D., 285), this order
was revoked and set aside, and the former rule, holding that such
claims would not be adjudicated until six months after the allowance
of the original claim, though when declarations therefor were filed
claimants should be ordered for examination as soon as practicable
(increase, when granted, commencing from date of surgeon's certificate),
was reestablished. g g
By order of the Commissioner of Pensions it was directed, under
date of November 23, 1897, that—
all claims referred to the medical referee for medical examination, of claimants
residing in foreign countries, will be returned to the files of the adjudicating
divisions without issuing orders for such examination, there to remain until further
Qrders.
REPORT OF AssISTANT SECRETARY OF THE INTERIOR. 7
Under these instructions it appears that the adjudication of all
claims of foreign residents was suspended from that date.
In the consideration of appeals from this action it was held, on
August 12, 1898, in the case of Henry McFadden (9 P. D., 437), that
the law-making power has made no distinction on account of the resi-
dence of claimants, and there should be none in the execution of the
law; that the rights of claimants residing in foreign countries should
not be abridged, and every opportunity should be freely given to them
to establish their claims, without discrimination.
In a decision rendered August 26, 1898, with your approval, in the
case of H. S. Berlin, attorney, on appeal, it was held that the practice
which prevailed in the Pension Bureau denying to claimants or their
authorized attorneys the right to examine the evidence obtained by
Special examination, except that relating to criminal charges and
investigations, was unjust to claimants and unwarranted by law. It
was therefore directed that all orders or instructions having that
effect should be revoked.
Also, in a decision rendered August 27, 1898, with your approval,
wherein Charles and William B. King, attorneys of record, were appel-
lants (9 P. D., 478), from the refusal of the Bureau of Pensions to per-
mit their representative to examine the reports of examining surgeons
in cases where they are the recognized attorneys, it was held that while
it was not deemed proper to issue an imperative order relating to this
practice, the suggestion was freely made, under the authority conferred
by the act of July 18, 1894, that the instructions of the Commissioner
of Pensions be modified to the extent that representatives of recognized
attorneys in a given case, who have written authority from their
employers, be granted the same privilege of examining certificates of
examining Surgeons as is provided by law for the attorneys in person.
It was also directed that all orders or instructions affecting the rights
of claimants or their properly accredited attorneys, shall be submitted
to the Secretary of the Interior for his information and approval prior
to their promulgation. -
Without any intended reflection upon the administration of affairs in
the Bureau of Pensions, it may be stated that the foregoing illustrations
serve to indicate, to some extent, the cause or basis of the unprece-
dented and overburdened files of the Board of Pension Appeals.
POLICY OF THE DEPARTMENT IN PENSION DECISIONS AND RULINGS.
It has been the policy of the Department to respond, as far as the
evidence and law would permit, to the liberal spirit in which the pension
laws have been enacted. In the large number of cases which have been
considered on appeal, it has been the aim to brush aside technicalities,
to give due weight and consideration to the evidence, guarding well the
lawful rights of the claimants, and the interests of the Government,
and protecting the integrity of the pension roll.
8 REPORT OF ASSISTANT SECRETARY OF THE INTERIOR.
The ninth volume of departmental decisions in pension claims has
just been issued in substantial form, embracing important opinions ren-
dered in the different classes of cases, with the view of establishing
uniform and consistent rulings governing the administration of the
pension laws.
A brief reference to some of these decisions, showing their impor-
tance and the character of the work, deserves a passing notice in this
report.
AID AND ATTENDANCE.
In the case of Ira W. Hayford (9 P. D., 307) it was held that when
it is established beyond any reasonable doubt that, on account of
pensioned cause or causes, or any pathological sequelae thereof, the
pensioner is not only “totally incapacitated for performing manual
labor,” but can neither dress nor undress himself without the aid and
attendance of another person, as is shown by the evidence and certifi-
cate of medical examination in this case, the Department will construe
the said aid and attendance as such “frequent and periodical personal
aid and attendance of another person” as is contemplated by the pro-
visions of the act of July 14, 1892, and as warranting the allowance of
the rate prescribed in the said act. º
COMMENGEMENT.
In the case of Stephen Hiett (9 P. D., 313) claimant, on August 20,
1890, filed a claim for increase on account of increased disability from
causes for which he was then pensioned, also alleging other disabling
causes not heretofore claimed for. On the final adjudication of these
claims he was given a rating for the newly alleged causes of disability,
disease of eyes and mouth, they having been accepted as established,
and his pension was increased, but the increased rate was made to
commence August 20, 1896, the date of the last medical examination,
instead of from the date of filing the claim, August 20, 1890. -
This action was affirmed on appeal November 30, 1896, but on a
motion for reconsideration, filed December 2, 1897, said former decision
was set aside, it being held that claims for additional pension, based
on newly alleged causes of disability, not specific, such claim, if allowed,
dates from the time of filing such application, and not from the date of
the examining surgeons' certificate establishing a pensionable degree
of disability from said newly alleged cause.
DEATH CAUSE,
in the case of Napoleon B. Trask (9 P. D., 113), it was held that the
pension laws should be construed in the liberal and generous spirit
which prompted their enactment, and where doubts can not be resolved
by evidence, presumption should incline toward the soldier; so, where
the evidence, lay and medical, goes to show that the cause for which
pension was granted to Soldier was complicated with a disease which
REPORT OF ASSISTANT SECRETARY OF THE INTERIOR: . 9
was the immediate cause of his death, the Department will sustain the
widow’s claim. -
In the case of Sarah J. Smith (9 P. D., 266), the sailor, her late hus-
band, was pensioned for disease of heart. The attending physician
during his last illness certified that death was caused by “pneumonia,
exhaustion, and purulent infiltration,” after an illness of three months'
duration. - *
The widow’s claim was rejected on the ground that the alleged cause
of death was not due to the disability for which pensioned. On appeal
to the Department it was held that inasmuch as the principle desidera-
tum in a case of lobar pneumonia is the maintenance of the proper
action of the heart, to which the treatment is mainly directed, and in
view of the fact that the sailor was pensioned for disease of that most
important visgus, and that the evidence in the case shows that said
disease, as well, as pneumonia, was an important factor in the death
cause, the qìe ign as to the relation of the acute disease of lungs to
the preexisting"chronic disease of heart is one of complication, not of
pathology, the claim is reopened and submitted for readjudication and
allowance.
DECLARATIONS.
In the case of George Ellis (9 P. D., 223), it was held that where it
was shown that claimant was incapacitated for earning a support by
manual labor in a pensionable degree, under section' 2 of the act of
June 27, 1890, at the time of filing his application for pension under
said act, by disabling causes not alleged by him in his application, but
shown not due to vicious habits, the claim should be admitted.
A more liberal rule as to what a declaration for pension under the
act of June 27, 1890, should state was made in the case of John H.
Sharon (9 P. D., 272), it having previously been held that a claimant
under said act should specifically allege all disabling causes for which
pension was claimed, but in this case it was held that as a declaration
was substantially in the terms of the law, and the claimant in his
statement to the examining board alleged the disabilities he claimed
for, the claim was held to be valid.
HELPLESS MINOR.
In the case of Ellie Morris (9 P. D., 353) it was held:
A child who is an incurable epileptic, having a falling fit once a week, on an aver-
age, and nervous attacks much oftener, who is vigorous in body but dull mentally,
who is able to attend to his personal wants except when suffering from an epileptic
seizure, and can perform some remunerative labor, but not nearly sufficient to afford
him a support, is “permanently helpless,” in the contemplation of the law, and the
pension on his account should be continued.
In the case of the minors of David S. Sharer, deceased (9 P. D., 189),
it was held that where a minor pensioner is insane, idiotic, or other-
wise permanently helpless, he shall not be deprived of his share
10 REPORT OF AssISTANT SECRETARY OF THE INTERIOR.
of the joint pension upon arriving at the age of 16 years while there
are other children under that age, but shall continue to receive the
same as if he were still under 16 years of age, instead of but $2 per
month while other children under that age survived. -
In the case of the minor of William Johnson (9 P. D., 452), it was
held that the claimant, 24 years old, who had been an inmate of an
asylum for feeble-minded persons, who does not know her age, is unable
to comprehend numbers above 5, is capable of receiving only the most
elementary instruction, and, in the opinion of the surgeon detailed to
examine her, is permanently incapacitated for earning a living and
requires the care and attendance of another person daily, is entitled to
continuous pension under the act of June 27, 1890, as a permanently
helpless minor.
* HONORAIBLE DISCHARGE. y”
In the case of Elsie Hummel (9 P. D., 311) for pension under the act
of June 27, 1890, the claim was rejected on the ground that her late
husband, the, Soldier, was not finally honorably discharged, he having
died in the service. On appeal it was held:
When the soldier has served a term of ninety days or more in the military or naval
service of the United States during the late war of the rebellion, and has been hon-
orably discharged therefrom, reenlists, and dies during his subsequent term of
service, his death not being the result of a violation of any law, rule, or regulation
of the military or naval service, the requirements of the act of June 27, 1890, as to
length of service and honorable discharge are fulfilled, and his widow is entitled to
pension on compliance with the other conditions of the act.
LINE OF DUTY.
In the case of Margaret M. Hoffman (9 P. D., 227), the War Depart-
ment reported that claimant's husband, Oskar Hoffman, principal
musician of the Twenty-third United States Infantry, was accidentally
killed in line of duty while on a pass to hunt; that hunting was encour.
aged in the Regular Army, and regarded as improving the soldiers as
marksmen (as was shown in the late Spanish war), and as much in the
line of duty while on such pass to hunt as while undergoing small-arms
practice at the target range, and that a soldier killed or wounded while
so engaged, not in consequence of any willful neglect or improper con-
duct on his part, is considered in the line of duty.
The case was submitted to the Department by the Acting Commis-
sioner of Pensions for a ruling on the record, and it was held by me
that, in view of the fact that the records of the War Department are
usually accepted as conclusive upon all other questions relating to sol-
diers' service, the contemporaneous record made by the proper medical
officers that soldier was in line of duty when killed should be regarded,
in the absence of evidence to the contrary, as controlling upon that
question. - §
<º
REPORT OF ASSISTANT SECRETARY OF THE INTERIOR. 11
MARRIA.G.E.
In the case of Mary A. Miller (9 P. D.,209), it was held that a colored
woman, and former slave, who married and cohabited with a white
man and ex-soldier, in the State of Texas, has no pensionable status as
the widow of said soldier for the reason that such marriage was in
violation of the laws of that State, and was null and void. t
In the case of Margaret L. Thomas (9 P. D., 139), it appeared that
the claimant was married to the soldier by a ceremony in 1875, and
lived with him in Michigan until his death, in 1895; that at the time
of said marriage soldier had a wife living, who procured a divorce
from him in 1877, all of which facts were unknown to the claimant
during the lifetime of the soldier. Under these facts it was held, that
as claimant was the innocent party, and was kept in ignorance of the
fact that a legal impediment to her marriage to soldier existed at the
time of such marriage, and that during all the time from the removal
of the impediment, in 1877, to soldier's death, in 1895, the parties
cohabited together as husband and wife, uniting in conveyances, and
joining in church membership, and deporting themselves generally in
accordance with good morals, and being universally recognized by their
neighbors, friends, and acquaintances as husband and wife, a valid
marriage subsequent to the removal of the impediment would be
presumed. - -
MEDICAL EXAMINATION.
In the case of Isaac Goodin (9 P. D., 261) it was held that a cer-
tificate of medical examination not sworn to, made by a person who
had ceased to be an examining surgeon or a member of a board of
examining surgeons, can not be considered the certificate of a civil Sur-
geon, but is without authority of law and null and void; and a claim-
ant having submitted to such examination under protest should have
the benefit of an examination by a duly authorized examining surgeon
or a board of examining surgeons. º
MEXICAN WAR.
In the case of Zachariah Winkler (9 P. D., 173) it appeared that
the claimant was a member of Powell's Battalion, Missouri Mounted
Volunteers, which was raised for service in the Mexican war, but
instead of being sent to Mexico said battalion was assigned to duty
in Oregon to protect the frontier. The members of said organization
were denied pension under the act of January 29, 1887, on the ground
that said organization “did not serve in Mexico, nor on either the coast
or frontier thereof or en route thereto;” neither had claimants been
“personally named in any resolution of Congress for any specific serv-
ice in-said war.”
On March 3, 1891, however, Congress passed an act authorizing the
Secretary of the Interior to place on the pension rolls the names of
12 REPORT OF ASSISTANT SECRETARY OF THE INTERIOR.
the surviving officers and enlisted men of said organization who had
been honorably discharged, “subject to the limitations and regulations
of the pension laws of the United States for pensioning the survivors .
of the Mexican war.” - -
Claimant was pensioned under said act at the rate of $8 per month,
when he applied for increase under the act of January 5, 1893, which
provided for the increase of the pension of every pensioner who was
then on the rolls at $8 per month on account of service in the Mexican
war, and who was wholly disabled for manual labor and in such desti-
tute circumstances that $8 per month was not sufficient to provide him
with the necessaries of life, to $12 per month.
His claim was rejected by the Pension Bureau on the ground that
he was “not provided for by the act of January 5, 1893, his present
pension having been granted under the special act of March 3, 1891,
instead of the act of January 29, 1887.” In other words, because not
pensioned on account of service in the Mexican war.
f On appeal it was held that—
The provisions of the act of Congress of January 5, 1893, providing an increase
of the rate of pension granted on account of services in the Mexican war to sur-
vivors of said war, are applicable to survivors of Powell’s Battalion, Missouri
Mounted Volunteers, Mexican war, who are pensioned under the provisions of the
act of March 3, 1891, for service during the war with Mexico, and such surviving
members of said organization are entitled to receive the increased rate of pension
provided by said act of January 5, 1893, under the same conditions, limitations, and
regulations as other Mexican war survivors who are pensioned under the provisions
of the act of January 29, 1887. Departmental decisions of June 16, 1896, on Brook-
man's appeal (7 P. D., 260) overruled, and ruling No. 237 of the Commissioner of
Pensions modified. -
That is, the act of March 3, 1891, put the surviving officers and
enlisted men of Powell’s Battalion on the same footing as those who
actually served in Mexico or on the coasts or frontiers thereof, or en
route thereto, and overruling all former decisions holding the contrary.
PRESUIMPTION OF DEATH.
In the case of Annie Dennis, formerly Reno (9 P. D., 243), the claim
was rejected on the ground that the evidence failed to prove the death
of claimant's first husband. This action was affirmed on appeal. It
appeared from the evidence that claimant's first husband left her in
1873 to go to Chicago, Ill., for medical treatment, and she states that a
few months later she received a letter purporting to be from his sister
stating that he had died in hospital in that city. -
The special examiner failed to verify this statement, for the reason, ,
as he stated, that there were so many persons of the same name as
Soldier's family and so many hospitals in that city that it was imprac- .
ticable to make a thorough investigation as to soldier's death. The
claimant, relying on this information as to her husband's death, married
one Holmes in 1877, who procured a divorce from her in 1882 on the
REPORT OF ASSISTANT SECRETARY OF THE INTERIOR. 13
ground of desertion. She married the soldier in 1883, who died in 1890.
Her first husband had never been heard of in that community since
1873. On a motion to reconsider, it was held that these facts were
sufficient to raise the presumption of her first husband’s death prior to
her marriage to the soldier, that such marriage was legal, and that she
was the widow of said soldier for pensionable purposes.
PENDING CLAIM.
In the case of William H. Hughes, deceased (9 P. D., 152), the prior
rule established in the cases of Jacob Wolhart (8 P. D., 226), Henry
Groppe (8 P. D., 293), Griggs Soper (8 P. D., 394), that when soldier's
claim was rejected and notification of the rejection sent to him, and he
had reasonable time within which to manifest an intent to prosecute
the case further, and, having failed to do so, he must be held to have
abandoned it, and it was, therefore, not a pending claim within the
meaning of section 4718, Revised Statutes, and the act of March 2,
1895, and the widow in such case could not prosecute the claim further,
was overruled and set aside and a more liberal rule, that in a soldier's
claim in process of adjudication when he died the widow has the right
to do anything in the claim that the deceased could have done had he
been living, including the right to appeal ber deceased husband's claim
to the Secretary of the Interior, was substituted therefor.
SERVICE.
In the case of Susan C. Peniston (9 P. D., 178), for pension on account
of her late husband's service in the Black Hawk war, her claim was
rejected by the Pension Bureau, on the ground that soldier's company
was called out for the purpose of protecting the frontier of Missouri
against the Indians, and such company operated on the frontier of
Missouri, hence not at the seat of the Black Hawk war. It appearing
from a report from the War Department that the military organization
in which claimant's husband served from August 29, 1832, to Septem-
ber 30, 1832, cooperated with the main body of troops in the suppression
of the Indian hostilities during the Black Hawk war, on appeal it was
held that his service was sufficient to comply with the requirements of
the act of July 27, 1892, and the rejection of the claim was overruled.
In the case of William B. Watson (9 P. D., 182), the ruling in the
case of David Oliver (7 P. D., 597), that the provisions of sections 2
and 3 of the act of June 27, 1890, were applicable to, and embraced
only, such persons and their widows and minor children who had been
regularly enlisted men, or duly appointed and mustered officers in mil-
itary or naval establishments of the United States, and that those who
served in the Revenue-Marine Service on vessels which cooperated, by
direction of the President, with the Navy, as provided in section 2757,
Revised Statutes, were not regularly appointed or mustered officers or
enlisted men in the naval service, were not, in the Navy or the naval
14 REPORT OF ASSISTANT SECRETARY OF THE INTERIOR.
establishment of the United States, and consequently, neither they,
their widows, nor minor children had any pensionable status under the
provisions of said sections of said act, was overruled and set aside,
holding that a service of ninety days, or more, during the war of the
rebellion, in actual cooperation with the Navy, under the orders of
the President, and the honorable discharge from such service are suffi-
cient to give the officers and seamen of the United States Revenue-
Marine Service a pensionable status, under the provisions of said
Sections.
WICIO'U'S HABITS,
In the case of Morris Hess (9 P. D., 252), his claim under the act of
June 27, 1890, was rejected on the ground that a ratable disability was
not shown independent of rupture; that the claimant was unable to
prove that the latter was not due to vicious habits. On appeal I held
that there being nothing in the case to arouse a suspicion that the
disability was in any way due to vicious habits, or that the claimant
had ever been addicted to vicious habits, or that his statement as to
the circumstances under which the disability was incurred was untrue,
the rejection on the ground stated was error, and was set aside.
LEGISLATION RECOMMENDED.
The attention of the Secretary of the Interior has heretofore been
called to a condition which works a peculiar and unwarranted hardship
upon the widows of those white soldiers whose domicile and matrimonial
union have been in one of those States where marriages at common law
are not recognized. Of these States there are perhaps three, certainly
two. So far no attempt has been made by Congress to remedy this
unjust condition, although many years ago Congress enacted Section
4705 of the Revised Statutes of the United States, which provided a
universal, specific, and liberal means for the proof of marriage between
colored and Indian Soldiers and their widows.
As the law now stands, the widows of white soldiers whose marriage
at common law took place in these excepted States have no redress
whatsoever for what is clearly an unjust although not an intentional
discrimination.
The widows of colored and Indian soldiers have for twenty-five years
had the benefit of a law (act of March 31, 1873) which provided a
means for uniform proof of marriage, and as this legislation affects
alone the disposition of a gratuity provided by the General Govern-
ment, it is in no way a contravention of the constitutional rights of
each State to enact its own marriage and divorce laws. -
I therefore earnestly suggest, in the interest of indisputable justice,
that the attention of Congress be invited to this inconsistency and
Wrong.
ſº
REPORT OF ASSISTANT SECRETARY OF THE INTERIOR. 15
In the consideration of such claims, the Commissioner of Pensions
and this Department are, aside from the exception provided for in sec-
tion 4705, Revised Statutes, confined to the provisions of section 2 of
the act of August 7, 1882, entitled “An act to amend section forty-
seven hundred and two, title fifty-seven, Revised Statutes of the United
States, and for other purposes,” said section providing as follows:
SEC. 2. That marriages, except such as are mentioned in section forty-seven hun-
dred and five of the Revised Statutes, shall be proven in pension cases to be legal
marriages according to the law of the place where the parties resided at the time
of marriage or at the time when the right to pension accrued. * * *
I therefore suggest such an amendment of this section by Congress
as will insure uniformity in proof of marriage, under common-law con-
ditions, to all claimants who are at present debarred under State laws
or holdings. . -
Convinced as I am, from a knowledge of the injustice and hardship
done many worthy soldiers' widows under the conditions cited, I have
ventured to present the following amendment to section 2 of the act of
August 7, 1882: e . . .
AN ACT to amend section 2 ºf the act of August 7, 1882.
Be it enacted by the Sengte and House of Representatives of the United States of
America in Congress assembled, That in all pension claims now pending, or that may
hereafter be filed, where the validity of a marriage between a soldier and a claimant.
is at issue, it shall be sufficient, in the absence of any impediment to such marriage,
to prove by satisfactory evidence that the parties thereto were joined in marriage
|by some ceremony deemed by them obligatory, or that they habitually recognized
each other as husband and wife, and were so recognized by their friends and neigh-
bors, and lived together continuously as such up to the date of death of one of such
parties, or their divorce.
PAYMENT OF PENSIONS.
My attention has also been brought to the lack of such legislation as
would authorize the Commissioner of Pensions to direct payment of
pension to others than the soldiers themselves when by reason of incom-
petency from various causes such payment could lead not only to hardship
and distress to the soldier's family, but to his own detriment.
At present the Commissioner of Pensions may direct payment to the
Wife or guardian only in cases of mental incapacity or imprisonment.
This should be so extended as to authorize the Commissioner of Pen-
Sions to direct.payment to the wife or the guardian of the children of a
pensioner where it is shown that his habits are such as to unfit him to
receive or disburse his pension, or where it is demonstrated that he is
a spendthrift, an incompetent, an inebriate, or that his pension is spent
in improper ways or upon improper persons. -
These diverted payments should, of course, be made to properly
authorized and competent bonded persons.
16 REPORT OF ASSISTANT SECRETARY OF THE INTERIOR.
Your attention is invited to section 3, act of June 27, 1890, with ab
proposed amendment, as follows: &
[Section 3, act of June 27, 1890.]
SEC. 3. That if any officer or enlisted man who served ninety days or more in the
Army or Navy of the United States during the late war of the rebellion, and who
was honorably discharged, has died, or shall hereafter die (or who having served for
ninety days or more in the Army or Navy of the United States during said war died
in such service, his death not being the result of a violation of any law, rule, or regu-
lation of the military or naval service), leaving a widow without other means of sup-
port than her daily labor, or minor children under the age of sixteen years, such
widow shall, upon due proof of her husband's death, without proving his death to
be the result of his army service, be placed on the pension roll from the date of the
application therefore under this act, at the rate of eight dollars per month during
her widowhood, and shall also be paid two dollars per month for each child of such
officer or enlisted man, under sixteen years of age, and in case of the death or remar-
riage of the widow, leaving a child or children of such officer or enlisted man, under
the age of sixteen years, such pension shall be paid to such child or children until
the age of sixteen: Provided, That in case a minor child is insane, idiotic, or other-
wise permanently helpless the pension shall continue during the life of said child,
or during the period of such disability, and this proviso shall apply to all pensions
heretofore granted or hereafter to be granted under this or any former statute, and
such pensions shall commence from the date of application therefor after the passage
of this act: And provided further, That said widow shall have married said soldier
prior to the passage of this act.
The proposed amendment is included within parentheses, and in effect
provides relief for the widows and minor children of deceased soldiers
who served ninety days or more, but did not receive a formal honorable
discharge, as required by law, by reason of death while in the service.
The soldier's death while in the service is not always a basis for his
widow’s pensionable status under the general law. Also, under a literal
construction of the third section of the act of June 27, 1890, the widow
and minor children of the deceased soldier are barred from pension for
the reason that he was not honorably discharged. Such cases are not
numerous. Many of those which have come under my observation
were very meritorious, and adverse action was imperative by reason of
the language of the law. It is believed that the proposed amendment
will authorize a just and equitable adjudication of such claims.
CONCLUSION.
Upon a careful review of the progress of the work of the Board of
Pension Appeals during the past year, I am sure meritorious claimants
have no reason for complaint, especially in view of the number of
appeals and the inadequate force employed.
It has been the policy to consider the appeals in the order of date of
filing, but exceptions to this rule have been made upon sworn testi-
mony showing great destitution or impending death. -
I desire to bear testimony to the fact that the results noted in this
report could not have been obtained without the efficiency and zeal
REPORT OF AssISTANT SECRETARY OF THE INTERIOR. 17
with which the regular and detailed members of the Board of Pension
Appeals, and the clerks and typewriters employed therewith, have ... "
performed their respective duties. - \
I deem it my duty to invite your attention to the necessity of having
an additional force for the consideration of appeal cases. -
Appeals long delayed occasion a more extensive correspondence and
sometimes great injustice to appellants. It is therefore earnestly rec-
ommended that Congress be requested to provide for three additional
members of the Board of Pension Appeals for the balance of the pres-
ent fiscal year, making a total of twelve members, and that the same
number be provided for in the annual appropriation for the next fiscal
year. These, with the four clerks at $2,000 now provided for, and per-
forming the same duties, and who should be continued under the next
appropriation, will greatly facilitate the work before the board.
Respectfully submitted.
WEBSTER DAVIs,
Assistant Secretary.
Hon. C. N. BLISS, Secretary.
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