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reaching the age of sixteen years, or after forty years service, received an amount equal to 75 per cent of the sea pay provided by chapter 8, title 15 Revised Statutes. All other naval officers retired on account of disability incurred in the line of duty, received an amount equal to one-half of the sea pay provided by chapter 8, title 15, Revised Statutes. Sections 1243, 1244, 1251, 1274, 1443, 1444, 1453, 1588, Revised Statutes. Officers of the Marine Corps were retired in the same manner and with the same relative conditions as were provided for the retirement of officers of the Army. Sections 1622-1623, Revised Statutes.

It appears from the foregoing statutes that when the Act of March 3, 1891, was enacted, there was no such thing as retirement without pay, all officers on the retired list being officers retired with pay. Therefore, the latter was the retired list which was the subject of consideration by Congress in that Act.

In Denby v. Berry, 263 U. S. 29, 35, the Supreme Court said:

"To be retired from active service under the sections from 1448 to 1455, Rev. Stats., inclusive, means retired with pay and has had this meaning for many years. Brown v. U. S., 113 U. S. 568, 572."

Under the Emergency Officers' Retirement Act emergency officers with ratings of less than 30 per centum and more than 10 per centum permanent disability are retired without pay. Mr. Shaw was retired as one of this class. In Estate of Ticknor, 13 Mich., 44, 52, the Supreme Court of Michigan said:

66 * * Legislatures, like Courts, must be considered as using expressions concerning the thing they have in hand; and it would not be a fair method of intrepretation to apply their words to subjects not within their consideration, and which if thought of, would have been more particularly and carefully disposed of.

** *

Black, "Interpretation of Laws," Second Edition, p. 78, quotes with approval the above statement of law, and adds, citing United States v. Saunders, 22 Wall. 492:

66 * * * If it is the evident and plain purpose of the act to affect only a particular class of persons, the generality of the language employed will not have the effect

of including a single individual not belonging to that class, though the mere words might include him.

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Applying these rules to the facts in this case, it appears that it would be improper to interpret the term "retired list" as used in the Act of March 3, 1891, so as to include officers retired without pay under the Emergency Officers' Retirement Act, since to do so would be to apply the term "retired list" to a subject not with the consideration of Congress when it enacted the Act of March 3, 1891, and which if considered, would undoubtedly have been more particularly and carefully disposed of.

This conclusion is confirmed by the legislative history of the Act of March 3, 1891, which amended the Act of August 29, 1890, 26 Stat. 371, set forth in the margin,1 which indicates that the purpose of the Act was to prevent the payment of pensions to officers of the Army, Navy and Marine Corps, retired with pay.

1 Senator Cockrell, of Missouri, a member of the Senate Committee on Appropriations, was the author of the proviso in the Pension Appropriation Act of August 29, 1890, 26 Stat. 371, providing,

"Hereafter no officer of the Army, Navy, or Marine Corps on the retired list shall draw or receive any pension under any law."

In introducing and explaining to the Senate the necessity for this proviso, the Senator said (Cong. Rec., Vol. 21, Part 9, pp. 8510-8511, Aug. 13, 1890, 51st Cong., 1st Sess.):

"Over three hundred officers of the Army and Navy and Marine Corps on the retired-list, drawing three-fourths of their annual pay, are at the same time drawing pensions!

"Mr. PRESIDENT, the circular-letter from which I have just read was addressed to a retired officer of the Army who is still in the military service of the United States and who is drawing three-fourths of his pay, and that officer returned the circular to this claim agent, stating that he was still in the service on the retired-list, and thereupon this officer received a written letter. The first one is a circular printed letter, sent to everybody whose name could be had, but the reply to the indorsement was a written letter, in which the claim agent says:

"MY DEAR SIR: In reply to your valued favor of the 28th ultimo, being indorsed on inclosure (respectfully returned), I beg to say your drawing pay as a retired officer United States Army will not preclude your drawing a pension under this Act of June 27, 1890.

"I have thoroughly considered this question, and further I can inform you that over three hundred Mexican war officers and soldiers of the United States Army and Navy, retired, are now drawing their regular retired pay and also a pension of $8 per month under an act just like this act of June 27, 1890, and have been doing so over three years.

"You know the United States Supreme Court have said in the case of United States, appellant vs. General Emory, decided in year 1885 (in relation to the Mexican war), every man of our armies, volunteer or regular, was honorably discharged from serving therein by the treaty of peace or the end of the war; and of course the same thing is true of the late war of the rebellion. Please recollect this in filling up your application, which I beg

It is my opinion, therefore, that William A. Shaw's right to a pension under the Act of June 5, 1920, on account of service rendered in the Spanish-American War, the Philippine Insurrection, and the China Relief Expedition, and partial disability (inability to earn a support by manual labor), you will execute and send to me, and I will get you a pension under this act of June 27, 1890, if you wish it.

"'Yours, very respectfully, etc.

"When I found out the statements made in that letter, I introduced a resolution here calling upon the Secretary of the Interior for a report of the officers of the Army, Navy, and Marine Corps, who, being on the retired-list, had been pensioned, and I shall at the proper time propose an amendment to this bill, providing that hereafter no officer of the Army, Navy, or Marine Corps on the retired-list shall draw or receive any pension under any law. I believed, as probably every member of the Senate and as every member of the House of Representatives believed, that we had effectually precluded retired officers from drawing pensions. That certainly was the general understanding so far as I know, and I supposed we had settled that question; and yet this claim agent tells us that over three hundred retired officers are now drawing pensions and that under the recent law all retired officers can draw pensions. That is not right; that is not just. They get three-fourths of their pay proper and then they get pensions besides. That was not the intention of the pension law at all."

Senator Cockrell was also the author of the Act of March 3, 1891, 26 Stat. 1082, providing,

"That hereafter no pension shall be allowed or paid to any officer, noncommissioned officer, or private in the Army, Navy, or Marine Corps of the United States, either on the active or retired list."

which amended the above quoted proviso in the act of August 29, 1890, supra. In introducing and explaining to the Senate the necessity for this amendment, the Senator said (Cong. Rec., Vol. 22, Part 3, pp. 2191-2, Feb. 5, 1891, 51st Cong., 2d Sess.):

64

Before the bill is reported to the Senate, I move to insert after the word separately,' in line 17, on page 2, the words:

"‘And provided further, That hereafter no pension shall be allowed or paid to any officer, noncommissioned officer, or private in the Army, Navy, or Marine Corps of the United States, either on the active or retired list.'

"The VICE PRESIDENT. The question is on agreeing to the amendment of the Senator from Missouri (Mr. Cockrell)."

"Mr. COCKRELL. Mr. President, I think that everyone will admit that the salary we pay the officers of the Army is intended to be in full for all military services. We allow longevity pay and all that, increasing as the service progresses, and it is in lieu of pension and everything else. It has always been understood that, when an officer was placed upon the retired list and received three-fourths of his pay, that was in lieu of compensation for all services performed in the Army, and in lieu of a pension. Also, when we created a retired list for noncommissioned officers and privates, and gave them three-fourths of their pay, longevity pay, and all that, it was understood that that was in lieu of all the military services that they had performed for us, and I know that that must have been the intention of Congress whenever a pension bill has been passed.

"When the Mexican pension bill was passed the Pension Office construed it in a different way, and the first thing we knew there were one hundred and fifty-six officers upon the retired list of the Army drawing pensions under the Mexican war pension law. At the last session of this Congress a proviso

is not affected by reason of his retirement without pay under the Emergency Officers' Retirement Act of May 24, 1928. Respectfully,

WILLIAM D. MITCHELL.

To the SECRETARY OF THE INTERIOR.

was inserted in the pension law prohibiting the payment of pensions to retired officers of the Army. That created a little criticism among retired In conofficers, who said that if retired officers were not allowed to draw pensions the officers on the active list ought not to be allowed to draw pension. sequence of that information I applied to the Department of the Interior and received in reply a report, which is Senate Executive Document No. 34, Fiftyfirst Congress, second session, showing six officers on the active list of the Army, Navy, and Marine Corps drawing pensions in addition to their full pay. I also received from the Interior Department a list of noncommissioned officers and privates of the Army, Navy, and Marine Corps on the active and retired lists numbering thirty-two, who were also drawing pensions under the Mexican war pension law.

"This amendment is simply to carry out what we started at the last session-which has always been the understanding of Congress-that officers on the active and retired lists should not draw any pensions."

"Mr. BLAIR. Mr. President, without speaking with reference to those upon the retired list, it seems to me this may well be urged in favor of those who are still upon the active list, who are rendering active service and receiving If a man upon the active list were not disabled, a pension at the same time. of course he would receive no pension, but he would render a certain service, for which he would be entitled to a certain degree of compensation. If that same man in that service has contracted disability from which he suffers and for which he would properly receive a pension if he were not in active service, and yet goes on under these circumstances, suffering from that disability all the time and rendering the same service as though he were not disabled, it does seem to me that he ought to receive his pension as well as his pay.

"So far as the retired soldiers are concerned, they are rendering to the country no service whatever. They are liable to be called into active service under certain conditions, and then their compensation becomes that of those in active service; and I can see why, having retired and rendering no service and yet receiving their two-thirds or three-fourths pay, as the case may be, as retired officers, they should not receive pensions in addition. But, taking the men who being in the active service and yet under disability are doing the same as those who are under none, and doing it under these adverse circumstances of pain, suffering, and expenditure, it seems to me they ought to receive pensions."

"The VICE PRESIDENT. The question is one the amendment of the Senator from Missouri (Mr. Cockrell). Is the demand for the yeas and nays seconded?" "Mr. HARRIS. I ask that the question may be put again without the yeas and nays."

"The VICE PRESIDENT. The Chair will again put the question on the amendment, if there be no objection."

"The amendment was agreed to.

"The bill was reported to the Senate as amended, and the amendments were concurred in.

"The amendments were ordered to be engrossed and the bill to be read a third time.

"The bill was read the third time, and passed."

PAYMENTS IN LIEU OF TAXES ON REVESTED OREGON AND CALIFORNIA RAILROAD GRANT LANDS

Under the Act of July 13, 1926 (44 Stat. 915), amounts in lieu of taxes should be paid to certain counties in Oregon on account of certain areas of revested Oregon & California Railroad land grants, which were reserved and made parts of national forests by Acts of October 21, 1918 (40 Stat. 1015), and February 11, 1920 (41 Stat. 405).

DEPARTMENT OF JUSTICE,

February 1, 1930.

SIR: I have the honor to comply with your request for my opinion on the question whether amounts in lieu of taxes should be paid certain counties in Oregon under the Act of July 13, 1926, c. 897 (44 Stat. 915), on account of certain areas of revested Oregon & California Railroad land grants which were reserved and made parts of national forests by Acts of Congress of October 21, 1918, c. 192 (40 Stat. 1015), and February 11, 1920, c. 69 (41 Stat. 405).

These tracts were part of the lands granted to the Oregon & California Railroad Company or its predecessors by the Act of July 25, 1866, c. CCXLII (14 Stat. 239), and Acts amendatory thereof. These grants exceeded 3,000,000 acres. Approximately 1,000,000 acres were sold by the Railroad. After litigation (Oregon & Cal. R. R. v. United States, 238 U. S. 393), the Act of June 9, 1916, c. 137 (39 Stat. 218), revested in the Government title to the unsold lands aggregating about 2,000,000 acres, and provided for a classification of these lands into three groups-power-site lands, timberlands, and agricultural lands. The Act authorized the sale of the timber on the timberlands, and a disposition of the timberlands and agricultural lands which was expected to yield a monetary return to the Government. Section 10 created a fund into which all moneys received should be paid. From this fund the Government was to reimburse itself eventually for certain sums to be paid to the Railroad and for payments to the counties on account of taxes which had accrued against the railroad when it owned the land. The balance of the moneys in the fund was to be paid to the states and counties in which the lands were situated, and into the Reclamation Fund and general funds

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