COMMISSARY.

See REVOLUTIONARY WAR.

COMMISSION.

See COURTS; EVIDENCE; RANK; SERVICE.

COMMISSIONER OF PENSIONS.

See ABANDONMENT; BOUNTY LAND; CONSTRUCTION OF LAWS; EXAMINATIONS; FEES; JURISDICTION; MANDAMUS; PRACTICE; RES ADJUDICATA.

COMMUTATION.

See AMPUTATION; ARTIFICIAL LIMB; BOUNTY LAND; HALF PAY; REIMBURSEMENT.

CONSCRIPTION.

See DISLOYALTY.

"CONSTITUTION," U. S. S.

See BOUNTY LAND (Service).

CONSTRUCTION OF LAWS.

1. Duties of the head of a Department.

2. The proviso of an act.

3. Conflicting provisions of the Revised Statutes.

4. Repeals.

5. Pension laws, generally.

(a) Act of April 14, 1842.

(b) Act of March 3, 1865.

(c) Act of March 3, 1873 (section 6)—Legislative construction.

(d) Act of June 27, 1890.

(e) Section 4703, Revised Statutes.

(f) Act of July 1, 1890, and joint resolution of September 1, 1890.

1. Duties of the head of a Department.

Whenever a general act is passed embracing a defined class of cases and assigning to a head of Department the executive duty of ascertaining the particular cases of the class, and applying the law to them, the terms of the law constitute a rule for his government, as he is to execute it according to its provisions, as conscientiously construed by him. Applied in case of Griffith, 9 P. D. (o. s.), 180. Atty. Gen. Cushing, 6 Op., 684.

2. The proviso of an act.

The proviso of an enactment should be construed as part and parcel of such enactment, and not separately. The provisos of section 4 of the act of March 3, 1873, are governed,

2. The proviso of an act--Continued.

therefore, by the opening language of the section, and take effect from and after June 4, 1872, allowing arrears from that date. Roger Bellis (Sec. Delano), 1 P. D. (o. s.), 262.

3. Conflicting provisions of the Revised Statutes.

There being a conflict between sections 4713, Revised Statutes (containing the provisions of the nineteenth section of the act of March 3, 1873), and 4725, Revised Statutes (which contains the provisions of section 1 of the act of June 3, 1858), it is proper to refer to the laws existing previous to the enactment of the Revised Statutes, and on doing so in this case, it is held, no sufficient reason appears for setting aside the long established practice, approved by the Department, of commencing renewal of pension, originally allowed under acts granting five years' half pay, from the date of filing the last paper in the case, where the declaration for renewal was not filed until after three years from the expiration of the prior pension, as held in Agnes Wheeler, Sec. Cox, February 19, 1870. Savilla Athey (Sec. Kirkwood), 8 P. D. (o. s.), 373.

4. Repeals.

Courts have long manifested a disinclination to favor implied repeals, and never suffer the doctrine to prevail beyond the necessary implication, except in cases where there has been a general revision or the laws upon a particular subject have been embodied and reduced to a system, and only when there is a positive inconsistency in the substance of the law, as when two provisions are repugnant, will the former law be considered as overruled, to the extent only, however, of the inconsistency. Atty. Gen. Clifford, 4 Op., 582.

A repealed statute has no bearing on a case adjudicated subsequent to the repeal, but the laws existing at the date of adjudication should govern. Jeremiah B. Wilbut (Sec. Cox), 6 L. B. P., 484.

5. Pension laws, generally.

It is not within the province of the accounting officers of the Treasury to construe the pension laws and give instructions to pension agents as to the payment of pensions. This properly belongs to the Commissioner of Pensions, whose duty it is, under the direction of the Secretary of the Interior, to administer these laws. Atty. Gen. Brewster, 17 Op., 339.

The Department holds 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 claimant." Peter N. F. Von Otterndorf (Asst. Sec. Bussey), 3 P. D., 341.

5. Pension laws, generally-Continued.

(a) Act of April 14, 1842.

The act of April 14, 1842, must be construed by reference to the treaty with the Cherokees; and all the benefits of said treaty, of which this act is the fruit and fulfillment, descend on the personal representatives of a Cherokee, allowing them to receive, under said act, the amount to which he would have been entitled had he survived the passing of the act. Atty. Gen. Legare, 4 Op., 55.

(b) Act of March 3, 1865.

Section 1 of the act of March 3, 1865, operated both upon pensions granted prior to its passage and upon those granted subsequent thereto and prior to June 6, 1866, when said section was repealed. Citing A. H. Dibble, 8 L. B. P., 213. F. W. Vaughn (Sec. Delano), 2 P. D. (o. s.), 330.

(c) Act of March 3, 1873 (section 6)-Legislative construction.

When the words of a statute which were of uncertain sig. nification originally, but which have been construed by the proper authority, are repeated in a subsequent statute, that is understood to mean not a repetition merely of the words, with the received construction, but an implied legislative adoption of such construction. Section 6 of the act of March 3, 1873, repeating section 8 of the act of June 6, 1866, and adopting the provision in favor of enlisted men absent on veteran furlough, and with the organization to which they belonged, is an affirmance of the construction of said act of 1866 in the case of John W. Liddick, Secretary Browning, March 25, 1867, to the effect that, while the general rule is that a person absent on furlough for any other purpose than on sick leave or sick furlough should not be pensionable, an exception exists where a soldier incurs disability while on veteran furlough with his organization prior to the date of his individual furlough. Thomas Griffith (Sec. Kirkwood), 9 P. D. (o. s.), 180.

See also DEATH.

(d) Act of June 27, 1890.

The first section of the act of June 27, 1890, chapter 634, entitled "An act granting pensions to soldiers and sailors who are incapacitated for the performance of manual labor," etc., is to be regarded as an amendment of section 4707, Revised Statutes; and so regarded, the word "soldier" employed therein should be construed to comprehend also sailor and marine, the term being used as a short expression to embrace all the persons under section 4707 whose death entitled their parents to a pension. Solicitor-General Taft, 19 Op., 586.

5. Pension laws, generally-Continued.

(d) Act of June 27, 1890-Continued.

A claim under the act of June 27, 1890, is separate and distinct from a claim under the general laws. Communication; H. S. Kellogg, attorney (Asst. Sec. Bussey), 4 P. D., 171.

The act of June 27, 1890, is a part of the pension code and is to be construed with existing pension laws in pari materia; so construed, it operates cumulatively and not by way of substi tution or repeal. Overruling Daniel B. Garrison, 6 P. D., 289; George W. Coffey, 4 P. D., 285; Richard Martin, 6 P. D., 107; Collins and Gilliland, ibid, 257. Adolph Bernstein (Asst. Sec. Reynolds), 7 P. D., 229.

The act of June 27, 1890, is a part of the pension code, and is to be construed with existing laws in pari materia, and is subject to the inhibitory provision of section 4716, Revised Statutes. Sarah H. Ozborn (Asst. Sec. Reynolds), 7 P. D., 317.

The act of June 27, 1890, is a part of the pension code, and is to be construed with existing pension laws in pari materia. Adolph Bernstein, 7 P. D., 229, cited and followed. Ellen J. Pipes (widow) (Asst. Sec. Reynolds), 7 P. D., 489.

(e) Section 4703, Revised Statutes.

Section 4703, Revised Statutes, applies to the act of June 27, 1890, and the $2 per month for each child of deceased soldier by a former wife will be paid the widow where the stepchildren are being maintained in whole or in part at the expense of a State or the public in any educational institution, or in any institution organized for the care of soldiers' orphans.

The second proviso of said section is in the nature of an exception to the first proviso and applies equally to the mother and stepmother of the children of the deceased soldier. Bell Gilbert (Asst. Sec. Reynolds), 7 P. D., 239.

(f) Act of July 1, 1890, and joint resolution of September 1, 1890.

The joint resolution of September 1, 1890, construing the act of July 1, 1890, does not operate to make said act retroactive, but that resolution is retroactive, but is limited in its effect to the period between its date and the date of the act of July 1, 1890. In re H. S. Berlin, attorney (Asst. Sec. Bussey), 5 P. D., 129.

See also (As to construed words and phrases); ACCRUED PENSION; ADULTEROUS COHABITATION; AMPUTATION ("elbow;" "knee"); DISABILITIES ("equivalent;" "total"); ENLISTMENT; GUNBOATS; LEGAL DISABILITIES; MINORS ("permanently helpless"); NAVY PENSION; PENSION; POST; RANK ("officer"), and other titles generally.

CONTINUANCE.

See DEPENDENCE; DISABILITY; EVIDENCE.

CONTRACT.

See BOUNTY LAND; FEE CONTRACT.

CONTRACT SURGEONS.

See SERVICE.

CONTRIBUTIONS.

See DEPENDENT RELATIVES.

CONTRIBUTORY NEGLIGENCE.

Culpable negligence or carelessness on the part of a soldier, which results in a disability disqualifying him for military duty, is a bar to the allowance of pension on account of such disability. Mother of Walter O'Donald (Sec. Delano), 8 L. B. P., 432.

Every invalid pensioner, however disabled, is bound as a prudent man to use every proper means at his command to alleviate his sufferings and lessen his disability, and his failure to do so would make him responsible for the aggravation of his disability. Louis Rynd (Sec. Schurz), 7 P. D. (o. s.), 277.

A person who is totally deaf is guilty of gross negligence in walking on a railroad track when not compelled to do so. He should exercise that due care and caution which ordinary prudence would dictate should be exercised by one in a crippled condition or not in the normal enjoyment of all his faculties. Thomas S. Bennett (Asst. Sec. Hawkins), 2 P. D., 9.

Above three decisions cited and followed in Widow of Clark J. Castalor (Asst. Sec. Hawkins), 2 P. D., 32.

Soldier, while walking along a railroad track, was run over by a "wild train" coming up behind him, which he, being totally deaf, did not hear. He lived near the railroad, was employed near by, and his duties kept him where trains were passing. The nearest way from his work to his home and the customary road of travel for people was over a portion of the track. He started home at a time when no schedule train was due.