necessary. Such repeals or exceptions are, however, not favored in law; and if any other construction of said proviso can fairly and consistently be made, as being its probable intent, scope, and effect, whereby no repeal of or an exception to said section 4715 need be held, such construction should be adopted, unless the meaning of the proviso is clearly unquestionable and beyond doubt.

A considerable doubt arises, however, from the apparent conflict between said proviso and the general provision of said section as to the right of "any pensioner" to elect pension; and it is not believed Congress intended, in said proviso, to repeal or to create an exception to that section. Said proviso may fairly be held to have been, rather, an affirmation, merely, of the prohibition of said section as to allowing double pension, leaving the succeeding provision, as to election, of that section wholly unaffected. Were this proviso not in said act the latter might, with considerable reason and authority, be held to allow double pension, notwithstanding the prohibition of said section, being a subsequent affirmative statute, remedial in nature and granting a new benefit, and, therefore, constructively cumulative, and as the later expression of the legislative will, a repeal of or exception to the prohibitory provisions of section 4715. (Sutherland on Stat. Const., secs. 202-294; Black on Inter. of Laws, 115.)

Congress has invariably, in creating a new right of pension, incorporated some such inhibition as to double pension, evidently to prevent the possible construction, were such inhibition of section 4715 not repeated, that said section would not apply to the new right. The act of July 25, 1882, provides that no person in receipt of a pension under a special act shall receive in addition thereto a pension under the general law, unless such act expressly so states. The acts of March 9, 1878, January 29, 1887, and July 27, 1892, contain the proviso that no one already in receipt of a pension shall be entitled under said acts, respectively, except for the difference between the two pensions. And the act of June 27, 1890, likewise provides specifically that applicants under other laws may receive the benefits of that act, but that "no person shall receive more than one pension for the same period." If section 4715 would have, without such provisos, been applicable to pensions under these several subsequent laws, there would be no necessity for thus repeating in said laws the prohibition of that section. The repetition, therefore, was evidently deemed to be necessary in order to prevent double pensions; and there appears to have been no intention that said section 4715 should not be fully applicable in all its provisions to each of these subsequent laws. On the contrary, the manifest intention throughout the pension legislation appears to have been to give full force and effect to said section under all laws, general and special, granting pension, "any pensioner who shall so elect" to receive whatever benefits the laws give so long as he or she does not draw double pension.

Sutherland on Statutory Construction, section 288, says:

It is to be inferred that a code of statutes relating to one subject was governed by one spirit and policy, and was intended to be consistent and harmonious in its several parts and provisions.

There is no reason whatever for supposing Congress had any other or different intention in the proviso of said act of March 3, 1901. The wording is slightly different, as is that of the other laws cited, but this can not control the construction of the act. The intent, gathered from the entire pension system, must control, and such intent appears to have been none other than that manifested in all other enactmentsmerely, as stated, to prevent receipt of double pension. A radical departure, such as the construction given to said act by the Bureau, from the principles and course of pension legislation is not to be presumed, especially when it would involve a constructive repeal of or exception to an existing general statute, such as said section 4715; but an intent to make such departure should clearly appear in the act itself. Construing this proviso in the light of similar legislation, it seems clear that no such departure was intended, and that said section 4715 was, in fact, intended to be fully applicable to this act as to all other acts.

This construction is not inconsistent with the language of said act. The words that one "already in receipt of a pension *** shall not be entitled to restoration under this act" refer, and can refer, only to one who is in receipt of a pension at the time of final approval for allowance of a claim under the act, for the only title contained in the act is title "to have her name again placed on the pension roll." No legal title to restoration exists under this act until certificate is actually issued, the same as title under section 4692 of the Revised Statutes, as held in John Gillespie (13 P. D., 280), and as is implied in the language of said section 4715, that a certificate may reissue for pension to which the pensioner "would have been entitled had not the surrendered certificate been issued."

The fact that at the filing of a claim under this act the claimant is then in receipt of a pension is immaterial, and does not negative title under said act, which, as stated, can not exist until the claim is approved for allowance, pension thereunder has been elected, and certificate has been issued.

Were this proviso incorporated in the body of the act where grammatical construction indicates it belongs as a limitation upon the grant contained in the act-that is, after the granting words "shall be entitled," the intention of the law to make the proviso applicable only to the placing of the claimant's name upon the pension roll, and not to the filing of her claim, clearly appears. The act would then read that a widow "shall be entitled, unless already in receipt of a pension from the United States, to have her name again placed on the pension roll." etc.

If such be the true construction of said act, it would be unreasonable and unjust to require that a claimant surrender a present pension before filing under this act and then wait several months, if not years. without any pension, although meritoriously entitled to one, and although in the dependent condition specified in the act, until the claim under this act is adjudicated and allowed before receiving any pension.

If widows who were, at date of approval of this act, in receipt of pension on account of a second soldier husband, be excluded from its benefits, an injustice and inequality in the application of the law would result. While such a widow who had thus taken advantage of the only law then allowing her any pension after her remarriage would be excluded, another widow who had then filed no claim on account of the second husband would be included within said act.

The former's exclusion was through no fault of her own, and her right to consideration, on the basis of the grant contained in this act, is the same in all respects as that of the latter. Her exclusion from the benefits to be derived as one time widow and pensioner on account of the husband whose "war wife" she was, for which class this act specifically provides restoration of pension, would be unreasonable. This express purpose and aim of this enactment, which is the keynote of its intent, would be thus in part defeated.

Endlich on Interpretation of Statutes, section 245, says:

In determining either what was the general object of the legislature, or the meaning of its language in any particular passage, it is obvious that the intention which appears to be most agreeable to convenience, reason, and justice should, in all cases open to doubt, be presumed to be the true one. An argument drawn from an inconvenience, it has been said, is forcible in law, and no less force is due to any drawn from an absurdity or injustice.

And in section 258:

If the words of a statute, though capable of an interpretation which would work manifest injustice, can possibly, within the bounds of grammatical construction and reasonable interpretation, be otherwise construed, the court ought not to attribute to the legislature an intention to do what is a clear, manifest, and gross injustice.

Also in section 265:

There is the strongest kind of presumption against the existence of that species of absurdity in the intention of the legislature which would consist in a design to defeat its own object. Yet it not infrequently occurs that one portion or provision of a statute, if literally or even naturally construed, would practically nullify the whole, or some material portion, of the remainder of the act, with the effect of defeating its obvious purpose. In cases of this description, it is a settled rule of construction, following from the obvious absurdity of any other, that such an interpretation shall, if possible, be placed upon the statute, ut magis valeat quam pereat.

A statute may be construed contrary to its literal meaning, when a literal construction would result in an absurdity or inconsistency, and the words are susceptible of another construction which will carry out the manifest intention. Statutes will be construed in the most beneficial way which their language will permit to prevent absurdity, hardship, or injustice. (Sutherland on Stat. Const., secs. 323, 324).

From this act itself, therefore, and from other pension legislation, it seems to have been the intent of Congress in said proviso merely to inhibit a pensioner from a second pension, and not to alter in any way the general law of section 4715 as to election. It is held accordingly that a widow pensioner may file and prosecute a claim under the act of March 3, 1901, and may be restored to pension thereunder upon surrender of her existing certificate, payments being continued under said certificate to date of issuance of certificate restoring her under said act, and deducted from payments under the latter certificate. The action appealed from is reversed.

MORAL CHARACTER-ACT OF MARCH 3, 1899–EVIDENCE.

AUGUSTA CHRISTOPHER v. George C. CHRISTOPHER.

To entitle a wife to one-half her husband's pension under the act of March 3, 1899, she is required to establish the fact that she is a woman of good moral character by satisfactory affirmative proof, and can not rest this branch of her claim upon the legal presumption that "in the absence of proof to the contrary a person's character is presumed to be good.”

The testimony as to claimant's good moral character is not outweighed by the fact that after the alleged marital desertion claimant, in answer to her advertisement for a position as housekeeper, entered into the service of a man whose wife procured a divorce from him on account of adultery with a previous housekeeper, no immoral act or undue familiarity on the part of claimant being shown during her entire residence with him of over two years. The decree of a court of competent jurisdiction dismissing pensioner's bill for divorce on its merits, in conformity with the report of the referee duly appointed to take testimony and report, the bill being based on adultery alleged to have been committed by claimant with her said employer during her said residence with him, is accepted by the Department in this case as satisfactory and conclusive evidence that her relations with her said employer were not adulterous.

Assistant Secretary M. W. Miller to the Commissioner of Pensions, April 15, 1903.

Mrs. Augusta Christopher appealed by her attorneys, February 27, 1903, from the Bureau action of February 3, 1903, rejecting her claim under the act of March 3, 1899, for one-half the pension of the husband, George C. Christopher, a pensioner tinder certificate No. 487064, on the ground that she had failed to prove that she was a woman of good moral character.

Appellant's assignments of error are as follows:

First. That the Commissioner of Pensions has erred in requiring the claimant to prove, affirmatively, a fact which the law presumes in her favor.

Second. That the decision of the Commissioner of Pensions is against the weight of the testimony and proof in the case.

Third. That the Commissioner of Pensions has erred in refusing to accept, in his decision, the decree of the supreme court of the State of New York upon the point at issue, viz, the truth or falsity of charges of adulterous conduct, made by the sol

dier, which has been adjudicated upon its merits by a court of competent jurisdiction and is res adjudicata.

Fourth. That the Commissioner of Pensions has erred in other matters appearing upon the face of the record and proceedings.

Considering these assignments in the order stated, it is the opinion of the Department that, by the terms of the act of March 3, 1899, the question of the "good moral character" of the claimant for one-half her husband's pension is to be ascertained and determined by the Commissioner of Pensions, under such rules and regulations as he shall prescribe. The action or determination of the Commissioner of Pensions is subject, of course, to the appellate and supervisory control of the Secretary of the Interior, under section 471, Revised Statutes, page 79.

The act of March 3, 1899, grants one-half of a husband's pension to the wife upon certain conditions enumerated in the act, she being a woman of good moral character and in necessitous circumstances. Both the character of the claimant and her financial or necessitous circumstances are, therefore, material allegations in her application under said act, without which the application would be defective. The question of "good moral character," being a material fact, should be supported by direct and affirmative evidence, and is not satisfactorily established by the general legal presumption that all persons are presumed to be of good moral character. The act of March 3, 1899, by limiting the beneficiaries to wives of "good moral character,” recognizes the fact that all wives are not of that class, hence the limitation to those who should establish the fact by satisfactory evidence that they belonged to the class designated. Her character is a fact to be proved. The rule, therefore, in civil actions that the plaintiff is not required to introduce evidence of good character until it has been assailed by the defendant, and that "in the absence of proof to the contrary a person's character is presumed to be good,” is not applicable to claims on behalf of the wife of a pensioner under the act of March 3, 1899.

The act of March 3, 1899, like statutes giving a remedy to "females of good repute" or a woman "of previous chaste character," requires affirmative proof of character.

In the case under consideration claimant's good moral character is not only put in issue by the statute, but pensioner asserted and offered evidence to show that she was not of good moral character, but was guilty of adultery with one Terpenny subsequent to the alleged desertion.

The first contention of appellant that the Commissioner erred in requiring her to prove, affirmatively, a fact which the law presumes, is therefore not well taken.

In reference to the second, third, and fourth assignments of error