1. Of courts-Continued.

In a State where the statute requires in a petition for divorce, in addition to the facts on which plaintiff claims relief, a statement specifying the town and county in which he has resided, the entire length of his residence therein, after deducting all absence from the State, and that such residence has been in good faith and not for the purpose of obtaining a divorce only, the court will not acquire jurisdiction in a suit for divorce unless the petition contains such averments. Mary Holmes (Asst. Sec. Reynolds), 8 P. D., 134.

When a court exercises a special power conferred upon it by statute, and not according to the course of the common law, it must strictly comply with the requirements of the statute, and such compliance must affirmatively appear from the record itself. Ibid.

In the State of Iowa the judge's calendar is not a part of the court records, and an entry therein will not constitute a judgment. In this case, the only record of a decree of divorce having been entered was contained in the minutes of the judge, which stated, "Decree of divorce as prayed for at plaintiff's cost," and it was held that a divorce was not proved. Ibid.

Where a transcript of the proceedings in a suit for divorce in the State of Iowa fails to show that a formal decree of divorce has been spread upon the records, it will not be accepted to prove such divorce. Ibid.

2. Of Secretary of the Interior.

A judgment of the Court of Claims adverse to the decision of the Department, rejecting a bounty-land claim, was, upon appeal to the Supreme Court of the United States, reversed for want of jurisdiction (6 Wallace, 573), and is therefore of no binding force in the claim, whilst the decision of the Secretary is entitled to all the weight due to the judgment of an officer of a special tribunal acting within the acknowledged scope of the authority delegated to him. Julian Alire (Sec. Delano), 7 L. B. P., 332.

The Secretary of the Interior can not question the correctness of the records of the War Department. Leopold Ricot (Actg. Sec. Cowen), 3 P. D. (o. s.), 50.

The law has not given this Department jurisdiction to consider a question of damages suffered in consequence of a pension being withdrawn. Charles A. Burnham (Asst. Sec. Hawkins), 31 P. D. (o. s.), 247.

The power of the Secretary of the Interior to suspend an

2. Of Secretary of the Interior-Continued.

attorney from practice for violation of the law, rules, or regu lations relating to fees in pension cases is not subject to legal limitations. The Secretary has both appellate and supervisory power over the Bureau of Pensions, and the right to consider all questions relating to fees, whether on appeal or not. Zadoc Day (Asst. Sec. Bussey), 3 P. D., 76.

The Department has no right, authority, or power to grant a pension to any person for whom the law does not provide a pension, no matter what may be the circumstances of the case, nor how much it may appeal to the sympathies. Mary A. McElfatrick (Asst. Sec. Bussey), 5 P. D., 278.

The Secretary of the Interior is not, under his supervisory authority in pension matters, restricted to the consideration of cases on appeal, but can, at any stage of the proceedings in any case, direct what action shall b taken, and such direction is binding upon the Commissioner of Pensions. Atty. Gen. Shields to Sec. of Interior, 6 P. D., 297.

Neither the Secretary of the Interior nor the Commissioner of Pensions can, by order or by practice, supersede an act of Congress. The power of the Department, so far as its orders and practice are concerned, is limited to an execution of the law; it ceases when an effort is made to supersede the law. Charles T. Bennett (Asst. Sec. Reynolds), 7 P. D., 1.

3. Of Commissioner of Pensions.

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, but of the Commissioner of Pensions. Atty. Gen. Brewster, 17 Op., 339.

The Commissioner of Pensions is a quasi-judicial officer possessing the power to correct errors in adjudicated cases to the extent of striking pensioners from the roll, and may suspend payment where the certificate issued through error or inad vertence. Catherine Harris (Sec. Delano), 2 P. D. (o. s.), 256.

Where the law fails to name certain disabilities and affix their ratings in express terms, the Commissioner of Pensions has the power, which it is his duty to exercise, under the general pension laws, to designate such disabilities by name and affix the corresponding rates, which he has the power also to countermand, add to, or to abridge. Daniel Lauback (Asst. Sec. Hawkins), 1 P. D., 318.

When the Department has, on appeal, passed upon the mer. its of a claim and directed its allowance, the Commissioner of Pensions may not, on his own motion, reconsider the case and

3. Of Commissioner of Pensions-Continued.

disallow the claim, but must either obey the direction to allow or request the Department to reconsider its action. Zenas Hamilton (Asst. Sec. Hawkins), 2 P. D., 217.

The rule of res adjudicata can not be applied to any question as to the future status of and payments to a pensioner, nor to restrict or limit the statutory powers and jurisdiction of the Commissioner to examine, at his discretion, rate of pension to be received in future in accordance with results of said investi gation, as may be deemed by him commensurate with justice and right. Distinguishing Edward A. Colnor, 2 P. D., 21. Wallace G. Bone (Asst. Sec. Hawkins), 2 P. D., 310.

The Commissioner shall have power, subject to review by the Secretary of the Interior, to reject or to refuse to recognize any contract for fees provided by the act of July 4, 1884, whenever it shall be made to appear that any undue advantage has been taken of the claimant in respect to such contract. George Hindson (Asst. Sec. Bussey), 3 P. D., 101.

The exercise of the discretionary power of the Commissioner of Pensions in determining the allowance of a fee of $25 in "such other cases of difficulty and trouble" as he "may see fit" to recognize is exclusively within that officer's control, and the Department will not interfere in the exercise of the same, except in a case of extraordinary or flagrant injustice. Julia Newcomb (Asst. Sec. Bussey), 5 P. D., 419.

See case of George D. Hilton, 8 P. D., 182.

4. Of accounting officers of the Treasury.

The matter of payment of pension after issuance of certifi cate comes under the supervision and control of the accounting officers of the Treasury Department, and the decision of the Comptroller of the Treasury as to payment of accrued pension can not be reviewed by this Department. Joseph E. Osborne (Actg. Sec. Cowen), 8 L. B. P., 224.

See opinion of Attorney-General Brewster (17 Op., 339), SUBTITLE 3.

5. Of the War Department.

See ENLISTMENT; RANK; SERVICE; SECRETARY OF WAR. See also ACCRUED PENSION; COMMISSIONER OF PENSIONS; COURTS; DIVORCE; FRAUD AND MISTAKE; MEDICAL REF EREE; REDUCTION; REIMBURSEMENT; SECRETARY OF THE INTERIOR; SPECIAL ACT.

KILLED IN BATTLE.

See EVIDENCE.

LACHES.

See BOUNTY LAND (Title by Descent).

LAND OFFICE

See BOUNTY LAND.

LAWS.

See ADJUDICATION.

LEGAL DISABILITIES.

The phrase "persons laboring under legal disabilities" in section 4766, Revised Statutes, as amended by the act of August 8, 1882, should not be construed to mean only persons under such disabilities as are indicated in the statutes of the United States, viz, insane pensioners, imprisoned pensioners, and minors, but all such as may be under legal disabilities by the law of the State in which they reside. Instructions (Sec. Vilas), 2 P. D., 94.

LEGAL REPRESENTATIVES.

Where the pension acts omit to make mention of representative persons, the latter are not entitled, according to the tenor and true intendment of the acts. Atty. Gen. Cushing, 7 Op., 619.

See also ACCRUED PENSION; ARREARS; ATTORNEYS; CONSTRUCTION OF LAWS.

LEGITIMACY.

1. Generally.

2. Of colored children.

3. Under the laws of Indiana,

4. Under the laws of Ohio.

5. Under section 4704, Revised Statutes.

1. Generally.

It is the settled practice under the act of July 14, 1862, and the subsequent supplementary laws, to confine their operation to legitimate children, to widows whose marriage was a lawful one, and to legitimate brothers and sisters, the only deviation being as to the mother of a deceased soldier. It is, therefore, held that the children mentioned in the act of June 25, 1866, are those who are legitimate and not those who are illegiti mate. Mehitable J. Pinkham (Actg. Sec. Otto), 6 L. B. P., 280. Legitimacy being a prerequisite to the legal title to pension of minor children, the fact that the parents of these claimants

1. Generally-Continued.

were never lawfully married bars them from receiving any pension except by special act of Congress for their benefit. Alleged minors of Hartwell Trickey (Asst. Sec. Reynolds), 8 P. D., 84.

2. Of colored children.

Where claim is filed by guardian in behalf of minor of soldier, and it appears that prior to the marriage to the soldier the mother of minor was married, and no decree of divorce appearing or proof of death: Held, That proof of death of first husband prior to second marriage is essential to the favorable consideration of the widow's or minor's claim. Minors of John N. Burch (Sec. Schurz), 7 P. D. (o. s.), 29.

The legitimacy of a minor's birth depends, for pensionable purposes, upon proof of the parent's marriage and the consequent innocence of the cohabitation from which the child sprung, rather than upon the mere continuity of residence or of cohabitation between the parents after said birth. John Pendleton, colored minor (Asst. Sec. Bussey), 5 P. D., 217. Overruled: 7 P. D., 545.

The issue of customary negro marriages are deemed legitimate under the laws of Kentucky, and as the alleged marriage of claimant was not such as is mentioned in section 4705, Revised Statutes, it is governed by the laws of Kentucky, as he was residing in that State at the date his right to pension accrued. See section 2 of the act of August 7, 1882. Gus, father of Frank Johnson (Asst. Sec. Reynolds), 8 P. D.,

3. Under the laws of Indiana.

As this claimant's parents cohabited under a promise of future marriage merely, without any present contract of marriage, such cohabitation was criminal under the laws of Indiana, and claimant, being born of such cohabitation, was illegitimate under the laws of that State, as there was no subsequent marriage of her parents. Emma Gierhart. (Sec. Teller), 10 P. D. (0. s.), 398.

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4. Under the laws of Ohio.

Under the statutes of Ohio a child is legitimate although the marriage of its parents is deemed null in law. Emily J. Griswold (Actg. Sec. Gorham), 3 P. D. (o. s.), 492.

Under section 4175, Ohio statutes, children born prior to the marriage of the parents are deemed legitimate if acknowledged by the father as his children. Elizabeth Felber (Asst. Sec. Bussey), 4 P. D., 329.