board was that his disease was not of a permanent character, the report of the hospital authorities was exactly to the contrary, namely, that it was permanent; and the further fact that while the retiring board found that the existing but not fundamental cause of the existing disability of Dr. Waring was an illness contracted while in the line of duty, the hospital authorities found that such disability was wholly attributable to inherent unstable nervous organization. It is quite possible that the President, although called upon by law to act upon the findings of the retiring board alone, was influenced to some extent by the report of the hospital authorities whose examination of Dr. Waring's case was necessarily ex parte. His action, of course, should have been based wholly upon the findings of the retiring board, whose examination of the case was, as required by law, inter partes. * * * It is at least open to doubt whether such a conclusion is is altogether just to the officer."

For full opinion, see Hearing Before the Subcommittee of the Committee on Military Affairs, United States Senate. Sixty-fifth Congress, second session, on S. 3967

5. By reason of Public Law 210, Sixty-seventh Congress, petitioner is entitled to the relief contemplated by H. R. 3402

The language of Public Law 210, Sixty-seventh Congress, declares in unequivocal terms the will and intent of the Congress, namely, that petitioner should be restored to his lawful rank and position as an officer of the United States Army as of May 5, 1917, and then placed on the retired list of the Army with his proper rank and pay This is the dictate of the people of the United States and is entitled to the same faithful execution accorded by the Constitution of the United States to all laws of Congress. However, the War Department, having used ali possible influence to defeat the passage of this law, has continued to oppose the execution of the will of the people by representing to the President that the law was permissive only and not mandatory. This view is exactly contrary to the settled law of this country One of the oldest and foremost authorities for the contention that third-party relief laws are mandatory is the case of Supervisors v. United States (71 U. S. 435) In that case the language usea in the third-party relief act which was in issue was that the board of supervisors "may if deemed advisable" do certain acts for the benefit of a third person. On the question as to whether or not this language required mandatory action on the part of the board, the Supreme Court said (p. 446):

"The conclusion to be deduced from the authorities is that where power is given to public officers, in the language of the act before us, or in equivalent languagewhenever the public interest or individual rights call for its exercise-the language used, though permissive in form, is in fact peremptory.

"What they are empowered to do for a third person the law requires shall be done. The power is given, not for their benefit, but for his. It is placed with the depositary to meet the demands of right and to prevent a failure of justice. It is given as a remedy to those entitled to invoke its aid, and who would otherwise be remediless.

"In all such cases it is held that the intent of the legislature, which is the test, was not to devolve a mere discretion, but to impose a positive and absolute duty'."

The quoted language above is based on a review of all of the earlier authorities, and the law has remained the same to the present time without change.

See also Parish v. MacVeagh (214 U. S. 124), Chase v. United States (261 Fed. 833).

Although the language used in Public Law 210 uses the word "authorize," it is mandatory that the President perform the duty required of him by this law. The provisions used in the act require the exercise of no discretion on the part of the President but simply require him to perform an administrative duty. Whatever discretion the President may have had as to whether or not he would permit the act of Congress to become a law existed only up until the moment he signed the act. Thereafter it became the law of the land and was entitled to faithful execution, a simple administrative duty as far as the President was concerned.

VII. CONCLUSION

In conclusion, it is the sincere contention of the petitioner that on May 5, 1917, he was deprived of his rights by being wholly retired as an officer of the United States Army; that for the reasons stated herein the proceedings and finding of the Waring retiring board in 1917 and the War Department order of May 5, 1917, were void and of no effect; and that, having been duly appointed

an officer of the United States Army in the prescribed and legal manner, petitioner so remains until separated by death or in accordance with the laws of Congress.

Petitioner further contends that the Congress of the United States having decided that he is entitled to the relief specified by Public Law 210, has found in favor of the petitioner on the issue of whether he was illegally retired from the United States Army, and it is respectfully submitted that petitioner is entitled to all of the benefits of this finding which is contemplated by the provisions of H. R. 3403, Eighty-first Congress, first session, introduced on March 9, 1949. Respectfully submitted.

STATE OF OHIO,

County of Hamilton, ss:

JOHN B. H. WARING.

John B. H. Waring, being duly sworn, deposes and says that he is the petitioner in the foregoing brief and that the facts stated therein are true as he verily believes.

JOHN B. H. WARING. Sworn to before me and subscribed in my presence this 11th day of May 1949.

(SEAL)

GEORGE C. ALLEN, Notary Public, Hamilton County, Ohio

H. Rept. No. 596, 67th Cong., 2d sess.

JOHN В H. WARING

The Committee on Military Affairs, to whom was referred the bill (S. 667) for the relief of John B. H. Waring, having considered the same, report favorably thereon and recommend that the bill do pass.

The bill under consideration provides for the restoration to the Army of Capt. John B. H. Waring with the rank he would have attained had he not been wholly retired and discharged from the Army as a result of unwarranted proceedings of the retiring board.

The committee at the last session held exhaustive hearings and listened to extensive argument of counsel and was impressed with the merits of the case; it had also had thorough consideration in the Senate committee. The bill has been reported favorably three times by that committee and has passed the Senate twice. Without explaining the cause and nature of his injury (see Senate report), we find from the evidence that he was summarily and illegally deprived by an Army retiring board of his rights, which were plainly provided for in the statutes. and that his dismissal was without authority of law and not in accordance with the findings of a retiring board.

The findings of the retiring board, before which he appeared, were that his injuries were only temporary and would doubtless yield to proper treatment within 6 months' time. In retirement cases, the statutes provide chat an injury must be permanent before an officer can legally be retired for physical disability. These statutes also provide that a retiring board shall give a full and fair hearing in the presence of the officer before the board and, as an elementary principle of law, that he be afforded full opportunity to prepare and present his defense to any adverse testimony that may be given against him. It cannot be claimed that this was done in the case of Captain Waring. The report of the Acting Judge Advocate General to the Secretary of War shows this. He says in his report, "It is at least open to doubt whether such a conclusion [wholly retiring Captain Waring] is altogether just to the officer." Because we believe with the Acting Judge Advocate General that this conclusion was seriously open to doubt, we propose now to do justice to the officer, and it is difficult to understand why, in view of the acknowledged doubt, that justice has not been done before.

The evidence shows clearly that not only was he summarily deprived of time and opportunity to introduce evidence in his own behalf before the retiring board but that it ignored the overwhelming evidence as to the "in line of duty" nature of his physical disability and made a finding not supported by the facts in the case. The diagnoses of medical officers from the time he entered the service, as well as eminent specialists, covering a period of 9 years, was "in line of duty." No legal or convincing evidence to the contrary has been adduced. Two Medical Corps witnesses testified before the board, not as ex perts and disclaimed expert knowledge, but simply as their opinion. Army regulations provide: "That the surgeon must

know." That Captain Waring was not permanently incapacitated for service, but only temporatily, and expressed the belief that his injuries was congenital and not in line of duty. It is significant that this testimony of Medical Corps officers in "the special case for Captain Waring only" by the retiring board followed closely upon a Medical Corps attempt to secure his discharge from the Army by court-martial proceedings upon the sworn testimony of other Medical Corps officers that he was malingering and had no physical disability of any nature. These court-martial and retiring-board proceedings against him were preceded by threats by a Medical Corps officer that because he had gone to civilian specialists for treatment the Medical Corps "had it in for him" and did not intend to allow him to be placed on the retired list, as provided by law, for disability incurred in the line of duty, and that if his resignation was not tendered he would be forced out by other means

Army regulations provided that an injury must be permanent before retirement can be effective; they also provided for a full and fair hearing, nothing being said as to the nature of the hearing or kind of evidence. His request to be allowed to introduce evidence was denied. He was retired, not as the result of the action of the retiring board, but arbitrarily and without a hearing, on ex parte evidence. Such proceedings are a violation of the very fundamental principles of jurisprudence as well as a violation of Army regulations. The President can only approve a finding of a retiring board when the injury is permanent; in this case he approved a report which was never a finding of a board. The committee must believe had he had all the facts before him he would never have sanctioned such illegal action.

Captain Waring was ordered to a medical hospital for observation and treatment for 6 months, but in less than 3 months, with no treatment, he was wholly retired. We do not question the good faith of the President in his action, but feel confident that he was ignorant of the facts; that he was not justified in signing the order wholly retiring him, because there was no finding of a retiring board that his injury was permanent in nature.

In view of the foregoing facts, the committee recommend that the bill do pass.

CASE OF CAPT. JOHN B. H. WARING, MEDICAL CORPS, UNITED STATES ARMY Public, No. 210, 67th Cong. (S. 667),

AN ACT FOR THE RELIEF OF JOHN B. H. WARING

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the President of the United States be, and he is hereby authorized to restore to John B. H. Waring, late of a captain in the Medical Corps, the files of which he was deprived, and, by and with the advice and consent of the Senate, appoint him an officer of the Medical Corps in the Army of the United States as of May 5, 1917, with such rank as he would have attained had he not been discharged, and when so appointed he shall be placed on the retired list of the Army.

Approved, May 6, 1922.

Enactment of this relief law was strongly opposed by the War Department, no less than five adverse reports being sent to the military committees in determined efforts to defeat enactment.

After enactment of the bill the War Department strongly endeavored to induce President Harding to veto the bill, but on May 6, 1922, President Harding signed and approved into law this Waring Relief Act.

Even after approval of the law the War Department continued its opposition to "faithful execution" of this law which the Congress had had the temerity to enact in face of disapproval of the military oligarchy.

It was falsely represented to the President that the law was "permissive only". Further: "The congressional act of May 6, 1922, looking to the relief of Dr. Waring is not mandatory, rather authorizes the President to appoint.'

Armed with these specious pleas Secretary of War John W. Weeks wrongfully persuaded President Harding to allow the War Department to "suspend" execution of this law to which the War Department was strongly opposed.

Along with cunning misrepresentations along this line, a vicious "smear" campaign was launched to persuade the President that the "beneficiary" was unworthy of the relief voted by the Congress, etc.

President Harding was not entirely convinced as to the truthfulness of these cunning War Department misrepresentations; and in a letter to a prominent

Ohioan stated that he was not entirely satisfied with War Department "methods" in this case, and that he wanted to do me justice, etc.

Shortly before his untimely death President Harding ordered a "special" investigation of the case.

While pending, a General Staff Corps major, and an Adjutant General's Office major approached a friend of ours in Washington with the proposition that for a sufficient cash compensation they could and would so influence the report of this Harding-ordered "special investigation" that it would be favorable to me and that my restoration to the Army would immediately follow.

I was not buying justice and reported the matter to the Secretary of War, but the War Department evinced no interest in locating the would-be sellers of Army justice.

In the meantime President Harding died suddenly, and if any report was ever made on his "special" investigation it remains locked in War Department files.

The War Department refused to submit the records of my case to examination by the Military Committees of Congress; and a major general on the General Staff stated to my father that no one even inside the War Department was ever allowed to see the files "of the Waring case" without the special personal permission of the Secretary of War

In some way this General Staff Corps major general in 1936 secured the required special personal permission of the Secretary of War to examine the files of the Waring case; and thereafter confidentially reported to my father that the case had never been laid before the President as required by law; that the President had never approved the retiring board finding; and had never ordered my wholly retirement dismissal; that War Department officials had in fact arbitrarily and unlawfully issued this wholly retirement dismissal order on May 5, 1917; with careful concealment of the entire conspiracy from the President.

Armed with this information the House Military Committee called for and examined by records in 1936, which examination completed exposure of this most remarkable Army conspiracy, despite which the War Department continued to flout the law and render justice.

The War Department itself conclusively exposes the utter falsity of its specious "not mandatory" plea with reference to status of the act of May 6, 1922. Acting Judge Advocate General Ansell: "The statute says shall be.' That is not may be. I say it is not 'may be' because this is a right that is designed for the benefit of the man himself; and whenever the Congress of the United States uses the word 'shall' in conferring a right or a benefit upon an individual, it can never be may be.'

The Judge Advocate General of the Army (Winthrop, 1895, 711), Statute: 1. Construction of: "It is well settled that the word 'may' in a statute conferring power upon a public officer is to be construed as equivalent to 'must' or 'shall' where the enactment imposes a public duty, or makes provision for the benefit of individuals whose rights cannot be effectuated without the exercise of the power" (Supervisors v. U S., 435, and cases cited, etc.)

The Judge Advocate General unctuously opined that if a "mistake" had been made in my arbitrary dismissal from the Army "only Congress can remedy it now.' Then the War Department exerted every sinister influence to defeat any "remedy" by the Congress.

When the Congress enacted this relief law in face of determined War Department opposition and disapproval, and President Harding signed and approved the act into law over War Department veto efforts, then the military oligarchy foisted specious plea that this law of the land was "not mandatory," as pretext for flouting same and refusal of justice to a victim of hideous Army conspiracy. The Supreme Court of the United States (Supervisors v. U. S., 171 U. S. 438): The Court held. "That whenever power is given to public officers. in the language of the act before us, or in equivalent language * *

Whenever the public interest, or individual rights call for its exercise the 'anguage used, though permissive in form, is in fact peremptory

What they are empowered to do for a third person, the law requires to be done. "The power is given not for their benefit but for his.

"It is placed with the depository to meet the demands of right, and to prevent a failure of justice

"In all such cases it is held that the intent of the legislature, which is the test, was not to devolve a mere discretion, but 'to impose a positive and absolute duty

"This general rule has been established by a long line of cases both in England and in the United States

"The rule they [these cases] declare is the settled law of both countries." Chase v. U. S. (261 F. 833): Justice Greer of the Supreme Court, on circuit: "A statute which 'authorizes' a public officer to do a certain thing imposes upon him a positive and absolute duty to do such act, which may be enforced in the absence of words giving him a discretion.

"In many of the acts of Congress the word 'authorized' is frequently used where a duty is imposed upon a public * * * officer, and in no case are the duties imposed discretionary, unless, after the word 'authorized.' the other 'in his discretion' are added."

(The other words "in his discretion" do not appear in the Waring Relief Act, after the word "authorized.")

"The fact that it was the President of the United States who was authorized does not change the application of the principle of law these cases declare, for the performance of the duty involves the exercise not of constitutional but congressional power."

I will omit here the overwhelming legal authority available in the law courts both of England and of the United States in support of this mandatory principle of law laid down by the Supreme Court of the United States.

Unscrupulous War Department officials knew this principle of law well; it is cited in dozens of opinions of the Judge Advocates General; and they knew well the absolutely mandatory nature of the Waring Relief Act.

But they also well knew that President Harding and the average Member of Congress had little occasion to become acquainted with the law involved and if they could defeat justice in this case by the specious plea of "not mandatory" they had no scruple as to methods employed.

In brief, the Waring Relief Act is absolutely mandatory as to the constitutionally declared "faithful execution" and any law court must inevitably so find. J. B. H. WARING, M. D.

Very respectfully.

O