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PENSION CLAIM OF LEWIS D. ATKINSON

As the 9th Provisional Enrolled Missouri Militia was never inducted into the Federal military service, Lewis D. Atkinson, who served ninety days or more during the Civil War in Company C of that regiment and who was honorably discharged therefrom, is not entitled to the pension rate provided under the provisions of the Act of July 3, 1926 (44 Stat. 806).

DEPARTMENT OF JUSTICE,

May 23, 1930.

SIR: I have the honor to acknowledge the receipt of your letter dated December 30, 1929, in which you request my opinion on the following questions:

"1. Are those persons who served ninety days or more in the Provisional Enrolled Missouri Militia, during the Civil War, and were honorably discharged therefrom, entitled to pension under the provisions of the Act of July 3, 1926 (44 Stat. 806)?

"2. Are such persons who, by reason of their service in the Provisional Enrolled Missouri Militia, are in receipt of pensions under other Civil War pension laws, entitled to the increases provided by the Act of July 3, 1926?

"3. If, in your opinion, such persons are not entitled to pension, or to increases of pension, under the provisions of the Act of July 3, 1926, should the pensions of those of such persons who have heretofore, in the administration of the pension laws, been granted pensions, or increase of pension, under the provisions of that Act, be reduced to the amount they would be entitled to receive under other pension laws?" The Act of July 3, 1926, c. 733, 44 Stat. 806, is entitled: "An act granting pensions and increase of pensions to certain soldiers * * * of the Civil War Section 1 of this Act provides as follows:

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"Every person who served ninety days or more in the Army, Navy, or Marine Corps of the United States during the Civil War, and who has been honorably discharged therefrom, or who, having so served less than ninety days, was discharged for a disability incurred in the service and in the line of duty, and every person who served sixty days or more in the war with Mexico, or on the coasts or frontier thereof, or en route thereto, during the war with

that nation, and was honorably discharged therefrom, and who is now in receipt of or entitled to receive, under existing law, a pension of less than $72 per month, shall be entitled to and shall be paid a pension at the rate of $65 per month; that in case such person is now, or hereafter may become totally helpless or blind shall be entitled to and shall be paid a pension at the rate of $90 per month." (Italics mine.)

The papers accompanying your letter disclose that the questions asked arise in connection with the claim of Lewis D. Atkinson for pension at the rate of $90 per month under the provisions of the Act of July 3, 1926, supra. Mr. Atkinson served ninety days or more during the Civil War in Company C, 9th Provisional Enrolled Missouri Militia, from which service he received an honorable discharge. Satisfactory proof of his condition of helplessness has been furnished.

If Atkinson's claim is to be allowed, it is apparent that he must meet the requirements of the Act by showing that he "served ninety days or more in the Army

of the United States." His claim is dependent, therefore, upon a showing either (1) that Congress has by legislative enactment declared the service of the Provisional Enrolled Missouri Militia to have been in the Army of the United States for pension purposes, or (2) that his regiment, the 9th Provisional Enrolled Missouri Militia, was actually inducted into the Federal military service.

In disposing of the first point it becomes necessary to make a survey of prior Civil War pension legislation with reference to the Acts under which Atkinson was given pensionable status in order to determine the intention of Congress regarding the Provisional Enrolled Missouri Militia.

Section 4693 of the Revised Statutes, taken from section 1 of the Act of March 3, 1873, c. 234, 17 Stat. 566, known as the Invalid Pension Act, provides that the persons entitled as beneficiaries include the following:

"Any officer of the Army, including regulars, volunteers, and militia, or any officer in the Navy or Marine Corps, or any enlisted man, however employed, in the military or naval service of the United States, or in its Marine Corps, whether regularly mustered or not, disabled by reason of any wound

or injury received, or disease contracted, while in the service of the United States and in the line of duty."

Section 4722 of the Revised Statutes, taken from section 8 of the Act of March 3, 1873, supra, provides:

"The provisions of this Title are extended to the officers and privates of the Missouri State militia, and the provisional Missouri militia, disabled by reason of injury received or disease contracted in the line of duty while such militia was co-operating with United States forces But the pensions on account of such militia shall not commence prior to the third day of March, one thousand eight hundred and seventy-three."

It thus appears that Congress did not consider the Provisional Enrolled Missouri Militia in the Federal military service within the meaning of section 1 of the Act of March 3, 1873. That this was the understanding of Congress is especially indicated by the reference in section 8 of the Act of March 3, 1873, to the service of the militia in "co-operating with United States forces." This conclusion is also confirmed by the fact that a special provision was deemed necessary in order to grant members of this organization pensionable status under section 1 of the Act of March 3, 1873.

Section 2 of the Pension Act of June 27, 1890, c. 634, 26 Stat. 182, provides in part:

"That all persons who served ninety days or more in the military or naval service of the United States during the late war of the rebellion and who have been honorably dis* shall charged therefrom, * be placed upon the list of invalid pensioners of the United States

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This Act was originally construed to apply to all classes granted pensionable status under section 4693 of the Revised Statutes, and as the Provisional Enrolled Missouri Militia were given pensionable status by section 4722 of the Revised Statutes, the members of this organization were awarded pensions under this Act. This construction of the Act with reference to the Provisional Enrolled Missouri Militia was reversed by a decision of the Assistant Secretary of the Interior on the ground that this organization had never actually been enlisted in the service of the United States. (See

Senate Report 807, 53d Congress, 3d Session.) In order to prevent members of this organization from being dropped from the pension rolls, the Joint Resolution of February 15, 1895, No. 13, 28 Stat. 970, entitled "Joint Resolution to restore the status of the Missouri Militia who served during the late war," was enacted, providing as follows:

"That the provisions of the Act of June twenty-seventh, eighteen hundred and ninety, be, and are hereby, extended to include the officers and privates of the Missouri State Militia and the Provisional Missouri Militia who served ninety days during the late war of the rebellion, and were honorably discharged, and to the widows and minor children of such persons. The provisions of this Act shall include all such persons now on the pension rolls, or who may hereafter apply to be admitted thereto."

Atkinson had made application for and was granted a pension under the Act of 1890, supra, as of September 29, 1891. The Joint Resolution of 1895 thus prevented his being dropped from the pension rolls. Subsequently an increase in pension rate was granted him under the Act of February 6, 1907, c. 468, 34 Stat. 879. This was authorized by the Act of March 4, 1907, c. 2920, 34 Stat. 1406, which provided:

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That the benefits of the Act of February sixth, nineteen hundred and seven * are hereby extended to include any person who served the period of time therein specified during the late Civil War and who is now or may hereafter become entitled to pension under the Acts of June twenty-seventh, eighteen hundred and ninety, February fifteenth, eighteen hundred and ninety-five

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Under the provisions of section 4 of the Act of May 11, 1912, c. 123, 37 Stat. 112, 113, the claimant was granted a further increase. This section provides:

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"That the benefits of this Act shall include any person who served during the late Civil War, and who is now or may hereafter become entitled to pension under the Acts of June twenty-seventh, eighteen hundred and ninety, February fifteenth, eighteen hundred and ninetyfive *

Section 2 of the Act of May 1, 1920, c. 165, 41 Stat. 585, 586, provides:

"That every person who served ninety days or more in the Army, Navy, or Marine Corps of the United States during the Civil War, and who has been honorably discharged therefrom, or is now upon the pension and who is now, or

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rolls as a Civil War veteran hereafter may become, by reason of age and physical or mental disabilities, helpless or blind, or so nearly helpless or blind as to require the regualar personal aid and attendance of another person, shall be entitled to and shall be paid a pension at the rate of $72 per month."

By reason of his disabilities Atkinson was granted the rate of $72 per month, under the provision quoted, which grants pensionable status to every person now on the pension rolls as a Civil War veteran. This language was omitted from the Act of 1926.

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The question now arises where the Joint Resolution of 1895, supra, was intended as a legislative interpretation of the Act of 1890 giving the members of the Provisional Missouri Militia the right to be included within the meaning of the language: "In the military * service of the United States," or whether this Joint Resolution of 1895 operated only to extend pensionable status to the members of the Provisional Missouri Militia, thereby giving them the benefits of the Act of 1890, which under the ruling of the Assistant Secretary of the Interior they would not otherwise have received.

I am unable to find from the language employed in the Joint Resolution of 1895 anything to indicate that Congress intended the resolution as a legislative interpretation of the Act of 1890. The language used is that the provisions of the Act of 1890 "be, and are hereby, extended" to include the Provisional Missouri Militia. This language indicates clearly an enlargement upon or addition to the terms of the Act of 1890 and not a mere legislative interpretation of that Act. It is true that in the report of the Committee on Invalid Pensions to the House of Representatives (House Report 1734, 53d Congress, 3d Session) it was stated that "The purpose of this resolution is to give a rule of con

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