proper officer of the War Department, and not be turned over to a United States marshal for delivery. 21 Op. 204.

2. Washington State Penitentiary.-In view of the fact that the State of Washington already has a penitentiary, the attention of Congress should be called to the matter before any further expenditure is made of money appropriated by the act of March 3, 1893 (27 Stat. 661), for the purpose of the creation of a penitentiary at Walla Walla in supposed conformity with the promise made in section 15 of the act of February 22, 1889 (25 Stat. 680). 21 Op. 352.

3. Grant of lands in Colorado for penitentiary purposes.-The provisions of section 9 of the act of March 3, 1875 (18 Stat. 474), granting certain sections of unappropriated public lands within the State of Colorado to the State for penitentiary purposes, to be selected and located by direction of the legislature with the approval of the President of the United States on or before a specified date, are not directory, as Congress had no right to give directions to the legislature of a State, but are in the nature of conditions precedent, and can only be given effect as conditions, and a failure by the designated authorities to select and locate the lands within the time named, renders the grant inoperative. After the expiration of said time the President is not authorized to approve a selection and location of said lands. 21 Op. 462.

PENNSYLVANIA.

See CLAIMS, I, e.

PENSION OFFICE.

c. Oaths-Fees, 15-18. d. Suspension, 19–22.

e. Accrued Pensions, Sickness, and Burial Expenses, 23–32.

f. Miscellaneous, 33-34.

II. Right to.

a. Officers on Retired List-Arrears,

35-37.

b. Navy Pensions, 38.

c. Widows and Children, 39-45.

d. Dependent Parents, 46.

e. By Special Act and Under General Law, 47-52.

f. Miscellaneous, 53-64. III. Money improperly paid-Recovery, €5–69. IV. Pension agents, 70-74.

I. Generally.

a. Administration of Pension Laws.

1. Commissioner of Pensions.-Duty to administer the pension laws.-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. 17 Op. 339.

2. Same. There is no allusion in any of the pension laws to the accounting officers of the Treasury as having any authority to construe those laws, or to direct the pension agents as to the amount that shall be paid to any class of pensioners or to whom pensions shall be paid. This is matter for the supervision and instruction of the Commissioner. The certificate and his orders as to its payment are binding upon the Comptroller and

3. The Commissioner of Pensions is not invested with power to audit and adjust accounts for the last sickness and burial of deceased pensioners arising under section 4718, Revised Statutes. This power belongs solely to the proper accounting officers of the Treasury by virtue of section 236, Revised Statutes. 17 Op. 440.

Opinion of April 28, 1882 (17 Op. 339), distinguished. Ib.

4. The Attorney-General is not authorized to give to the Secretary of the Treasury his opinion as to the proper construction of a pension appropriation act, because the Treasury Department is bound to follow the rulings of the Department of the Interior in considering that act. 20 Op. 178.

5. Accounting officers of the Treasury no authority to disallow-Double pensions.-A person who for a time drew two pensions, one as the widow of a soldier in the war of the rebellion and the other as the widow of a soldier in the war of 1812, was required to make an election, and having elected to hold the first-mentioned certificate, the Commissioner of Pensions ordered the amount which had been paid to her upon the other certificate to be withheld in installments of $6 per month from payments thereafter, and issued an order to the pension agent accordingly: Advised that the order made in this case, being within the general jurisdiction of the Commissioner, is obligatory on the pension agent, and that the accounting officers of the Treasury have no power to disallow payments made by the agent pursuant thereto. 19 Op. 214.

6. Same. It is not within the province of the accounting officers of the Treasury, upon learning of any order made by the Commissioner of Pensions to a pension agent for the payment of pensions, to notify such agent of what their decision will be upon his account when rendered. Ib.

7. Overpayment-Withholding amount due. In the case stated, the whole of the monthly pension under the certificate which the pensioner elected to hold should be withheld until the amounts so withheld shall equal the sum paid the pensioner under the other certificate. Ib.

b. Application-Filing-Declaration.

8. Application-filing.-The provision in section 4718, Revised Statutes, declaring that where an application for pension shall not have been filed "within three years of the termination of a pension previously granted on account of the service and death of the same person, the pension shall commence from the date of filing by the party prosecuting the claim, the last paper requisite to establish the same," is applicable to half-pay

pensions allowable under section 4725, Revised Statutes. 17 Op. 221.

9. Declaration-Limitation as to date of filing.-The proviso in section 4714, Revised Statutes, which authorizes the acceptance of a declaration to exempt a pension claim from the limitation as to date of filing provided by section 4709, a section which has been repealed, is to be construed as applicable to the new limitation relating thereto prescribed by section 2 of the act of March 3, 1879 (20 Stat. 469); and a declaration made in accordance therewith may be accepted to exempt a claim from such limitation. 17 Op. 355.

10. Same.-Section 2 of the act of 1879 is a reenactment of the provisions of section 4709, Revised Statutes, with some modification thereof. Ib.

11. Declaration-How made.--Declarations

of pension claimants must be made before a court of record, or before some officer thereof having custody of its seal. 17 Op. 510.

12.

Same-Court of record-How distinguished. The power to fine and imprison is not in this country a distinguishing mark of a court of record, but the enrolling or recording of their acts and proceedings is; and such court must have a seal by which its acts and proceedings are authenticated and proved. Ib.

13. Application by letter-Arrears.-Where an application for a pension was made by letter, sufficient to identify the claimant and the claim, and was placed on file as a part of the record of the case before July 1, 1880, and the claim was not abandoned, but delay in its prosecution satisfactorily accounted for by sickness: Advised that (the claim being subsequently established and allowed) such application by letter is sufficient to warrant the granting of arrears of pension provided for by section 2 of the act of March 3, 1879 (20 Stat. 470). 19 Op. 190.

14. Same-Form of application.—“An application is the first regular substantial step taken by a claimant to obtain a pension. In the administration of the pension laws literal adherence to form or the strict pleading of the courts of law is not required. If the claimant is identified, and the time and place of his service and the injury or disease which constitute the ground of his claim are substantially set forth, the form is immaterial. Substance and merit in the application are controlling. The

original application may be only sufficient to identify the claim and claimant, and will yet be a valid application, for it is subject to amendment for defective statements." 19 Op. 191.

c. Oaths-Fees.

15. Oaths administered free of charge. The act of June 7, 1888 (25 Stat. 174), which provided for the administering of oaths to pensioners free of charge, applies only to the officers authorized to administer oaths at the time of the passage of that act. 22 Op. 86.

16. Same.-United States commissioners are

not required to administer oaths to pensioners and their witnesses in the execution of pension vouchers free of charge, the fee for which service is ten cents. Ib.

17. The fees of witnesses subpoenaed under section 184, Revised Statutes, on application of the Pension Bureau, to testify before a United

States commissioner, and also the fees of the commissioner by whom their testimony is taken,

may properly be allowed out of the judiciary fund (21 Stat. 454). The former should be paid by the United States marshal of the district on the certificate or order of the commissioner; the latter, as in ordinary course, on settlement of the commissioner's accounts at the Treasury. 17 Op. 247.

18. Pension agents-Fees for forwarding claim.—The provision of section 4769, Revised Statutes, authorizing pension agents to deduct from the fees of attorneys in each pension case 30 cents, in payment of the services of the former for forwarding the same, is repealed by the act of June 14, 1878 (20 Stat. 112). 18 Op. 251.

d. Suspension.

22. "The act of 1893 clearly applies to every certificate that has been lawfully granted by the Pension Office, whether the evidence upon which the office acted was complete or incomplete, honest, fraudulent, or forged. Such certificate may still, of course, be canceled upon charges made, but until the thirty days' notice is given, the evidence received, and a decision reached, the money must continue to be paid, even though the crime has been confessed and the criminal may be already serving his term of sentence. In fact, the statute practically abolishes the right to suspend payments pendente lite in these cases." 20 Op. 736.

e. Accrued Pensions-Sickness and Burial

Expenses.

23. Accrued pensions.-The term "accrued pensions," as used in section 4718, Revised Statutes, means the amount of money unpaid by the Government to which a pensioner, or a person who had a valid claim for pension pending, was entitled at the time of his death. 19 Op. 1.

24. Check not cashed or transferred not payment. The receipt by a pensioner of a check for the amount due him on his pension, which was indorsed but not transferred by him in his life-time, is not payment. Ib.

25. Payment.-The amount thus due is accordingly "accrued pension," and is payable to those only who are entitled thereto under such section. Ib.

26. Duty imposed by section 4718, Revised Statutes. "Section 4718, Revised Statutes, imposes upon the officers of the Government the obligation to neither make nor allow to be made any payment of the 'accrued pension' to the executors or administrators of the dece

20. At the expiration of the statutory notice, however, the Commissioner of Pensions may decide the case and stop payment of the pension without precluding himself from thereafter reopening the case at the request of the pensioner when justice requires. Ib.

21. Suspension is a continuing act. Ib.

bution, with the possible single exception that if they have borne the necessary expenses of his last sickness and burial and he shall have died without sufficient funds to reimburse them, so much of the accrued pension may be paid them as they shall have paid for those purposes. In no event can they receive any part of the 'accrued pension' merely as the legal representatives of the decedent." 19 Op. 2.

27. "Unless, then, the pension was paid to the decedent in his life-time and became a part of his general assets, it can not pass to its legal

28. Accrued pensions. The proviso in the act of March 1, 1889 (25 Stat. 782), authorizing payment to a deceased pensioner's legal representatives, in certain contingencies, of the accrued pension due on his pension certificate at the time of his death, is to be construed as applicable to all outstanding pension certificates, whether issued before or since the passage of the act, but the pensioner must have died since the passage of that act to entitle his legal representatives to claim such accrued pension. 19 Op. 359.

29. Sickness and burial expenses.-The Commissioner of Pensions has no power to audit and adjust accounts for the last sickness and burial of deceased pensioners arising under section 4718, Revised Statutes. This power belongs solely to the proper accounting officer of the Treasury by virtue of section 236, Revised Statutes. 17 Op. 440.

66

30. Same. There is no ground whatever for holding that section 4718 was intended to restrict or qualify the declaration contained in section 236, that all demands and accounts whatever against the Government shall be audited and adjusted in the Treasury. Ib. 31. Accrued pension-Burial expenses of deceased pensioner.-The word person as used in the act of March 2, 1895 (28 Stat. 964), includes a municipal corporation, and authorizes the payment by the Secretary of the Treasury, from the accrued pension of a deceased pensioner, of such sum as may be necessary to reimburse a municipal corporation for the expenses it incurred during the last sickness and for the burial of a deceased pensioner who died not leaving sufficient assets to meet such expenses. 23 Op. 428.

32. Accrued money benefits due deceased beneficiary-Naval pension fund.-There is no authority of law for the payment to the personal representatives of a deceased beneficiary of money benefits which may have accrued under sections 4756 and 4757, Revised Statutes, between the date of the last quarterly payment and the date of death; nor may such money be paid to the Naval Home in cases where the beneficiary has been cared for and subsisted by that institution between the date of the last quarterly payment and the date of death. 25 Op. 85.

131, 132.

f. Miscellaneous.

33. Permanent disability.-A disability may properly be said to be permanent when it appears to be chronic or of indefinite future duration. 21 Op. 287.

34. Same-Termination.-The granting of a pension for "permanent specific disability" does not necessarily imply an adjudication that the disability is one which can not terminate. Ib.

II. Right to.

a. Officers on Retired List.

35. Can not draw both pension and pay.In view of long established departmental practice, the provision of section 4724 of the Revised Statutes "that no person in the Army, Navy, or Marine Corps shall be allowed to draw both a pension as an invalid and the pay of his rank or station in the service' should not be held applicable to an officer upon the retired list prior to August 29, 1890. 21 Op. 408.

36. Same-Arrears.-Under the pension appropriation acts of August 20, 1890 (26 Stat. 370), and March 3, 1891 (26 Stat. 1081), no pension moneys can be drawn by retired officers of the Army, Navy, or Marine Corps after the date of the former act, but these two statutes are not to be given a retrospective effect so as to cut off arrears aleady due. Ib.

37. Same-Not entitled to arrears.-A retired officer of the Army is not entitled to draw an invalid pension or arrears of pensions. (Opinion of Sept. 11, 1886, 21 Op. 408, reversed.) 21 Op. 453.

b. Navy Pensions.

38. Officers or seamen of revenue cutters.The revenue cutters employed in carrying out the order issued by President Lincoln to the Secretary of the Treasury, dated June 14, 1863, were, while so employed, cooperating with the Navy by order of the President; and if any of the officers or seamen thereof, during such employment, were wounded or disabled in the discharge of their duty, they became entitled to be placed on the Navy pension list at the same rate of pension and under