eighteen hundred and sixty-eight, unless the person who was wounded, or injured, or contracted the disease was in the line of duty; and, if in the military service, was at the time actually in the field, or on the march, or at some post, fort, or garrison, or en route, by direction of competent authority, to some post, fort, or garrison; or, if in the naval service, was at the time borne on the books of some ship or other vessel of the United States, at sea or in harbor, actually in commission, or was at some naval station, or on his way, by direction of competent authority, to the United States, or to some other vessel or naval station, or hospital. R. S. 4694. * Provided, That all applicants for pensions shall be presumed to have had no disability at the time of enlistment; but such presumption may be reAct of Mar. 3, 1885 (23 Stat, 362). butted. Notes of Decisions. Line of duty.-A statement that the applicant contracted a certain disease in the line of his duty is not false if, though he had it before enlisting, he was then cured, and contracted it again while in the service. Rhodes v. U. S. (1897), 79 Fed. 740, 25 C. C. A. 186. A seaman disabled by punishment inflicted by an enemy for endeavoring to escape from him after having been taken prisoner, is within the spirit and letter of act of Apr. 23, 1800, granting pensions to seamen disabled whilst in the line of their duty. (1821), 1 Op. Atty. Gen. 461. When the statute provides pension for disability or death, occasioned by wounds or injuries received, casualty occurring, or disease contracted, in the line of duty, it intends that the performance of duty must have relation of causation or consociation, mediate or immediate, to the wound, the casualty, the injury, or the disease which produces the disability or death. (1855) 7 Op. Atty. Gen. 150. To determine the right of pension, the question is not whether, when the cause of disability or death occurred, the party was on duty or not, in active service, or on furlough or leave, in arrest or not, but whether, in any of the possible conditions It is according to public policy to presume in favor of the service, where the line of duty enters potentially into the causes of disability or death, although it be not certainly provable that it Was the exclusive or predominant cause. Id. The phrase "in the line of duty," has been uniformly used in the statutes in defining the right to pensions. (1881) 17 Op. Atty. Gen. 172. Injury due to misconduct. If an assault on a claimant was brought on by his own misconduct, he can not be said to have been disabled while in the line of duty, and is not entitled to a pension. If there did not intervene between the contact and the injury an adequate and sufficient cause, for which claimant was responsible, he is entitled to pension. A wound is such an improbable effect of duty in the service as to throw upon the applicant the burden of showing that his misconduct was not the cause of the injury, but if this is done with reasonable certainty the claim should be allowed. (1881) 17 Op. Atty. Gen. 172. 1841. Persons in military service eligible for pensions.-The persons entitled as beneficiaries under the preceding section are as follows: First. 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. Second. Any master serving on a gunboat, or any pilot, engineer, sailor, or other person not regularly mustered, serving upon any gunboat or war vessel of the United States, disabled by any wound or injury received, or otherwise incapacitated while in the line of duty, for procuring his subsistence by manual labor. Third. Any person not an enlisted soldier in the Army, serving for the time being as a member of the militia of any State, under orders of an officer of the United States, or who volunteered for the time being to serve with any regularly organized military or naval force of the United States, or who otherwise volunteered and rendered service in any engagement with rebels or Indians, disabled in consequence of wounds or injury received in the line of duty in such temporary service. But no claim of a State militiaman, or non-enlisted person, on account of disability from wounds, or injury received in battle with rebels or Indians, while temporarily rendering service, shall be valid unless prosecuted to a successful issue prior to the fourth day of July, eighteen hundred and seventy-four. Fourth. Any acting assistant or contract surgeon disabled by any wound or injury received or disease contracted in the line of duty while actually performing the duties of assistant surgeon or acting assistant surgeon with any military force in the field, or in transitu, or in hospital. Fifth. Any provost-marshal, deputy provost-marshal, or enrolling-officer disabled, by reason of any wound or injury, received in the discharge of his duty, to procure a subsistence by manual labor. R. S. 4693. See "Historical Note" at head of this chapter. Notes of Decisions. Officers. The fact that a pension is granted by the express terms of a statute will not authorize a court to Lold by construction that it was because he was an officer in the Army. Byrnes v. U. S. (1891), 26 Ct. Cl. 302. Professors of Military Academy.-The professors of the Military Academy at West Point are commissioned officers of the Army, whose pay and allowances are assimilated to those of a lieutenant colonel and a colonel; and in case of such disability as is described in this section they are entitled to pensions at the same rate with officers of the rank of lieutenant colonel. (1882) 17 Op. Atty. Gen. 359. Volunteer not mustered.-A person who enlisted in the Forty-seventh Regiment of the Pennsylvania Militla pursuant to the President's proclamation for volunteers to serve for six months, which regiment was not actually mustered into service of the United States, but was engaged in the service of the United States under the command of an officer of the United States Army, has a pensionable status within this subdivision. (1892) 20 Op. Atty. Gen. 322. Contract surgeon.-The fact that a con. tract surgeon is entitled to a pension does not affect his rights to longevity pay under another statute. Byrnes v. U. S. (1891), 26 Ct. Cl. 302. Disease contracted in transitu.-Where a contract surgeon went aboard a steamer to proceed to the place to which he had been ordered, but before the departure of the boat, he became sick, and was removed to a hospital, where he died in a few days of typhoid fever, leaving dependent mother, but no widow or child, held, that the dependent mother is entitled to be enrolled as a pensioner, on the ground that the deceased, when taken down with sickness, was "in transitu " under orders. (1882) 17 Op. Atty. Gen. 457. a When an officer is ordered to go to a given point for duty and has set about his preparations to go, his transitu has begun. (1882) 17 Op. Atty. Gen. 457. 1842. National Guardsmen entitled to pensions.-That when any officer, noncommissioned officer, or private of the militia is disabled by reason of wounds or disabilities received or incurred in the service of the United States he shall be entitled to all the benefits of the pension laws existing at the time of his service, and in case such officer, noncommissioned officer, or private dies in the service of the United States or in returning to his place of residence after being mustered out of such service, or at any time, in consequence of wounds or disabilities received in such service, his widow and children, if any, shall be entitled to all the benefits of such pension laws. Sec. 22, act of Jan. 21, 1903 (32 Stat. 779). When any officer or enlisted man of the National Guard drafted into the service of the United States in time of war is disabled by reason of wounds or disability received or incurred while in the active service of the United States in time of war, he shall be entitled to all the benefits of the pension laws existing at the time of his service, and in case such officer or enlisted man dies in the active service of the United States in time of war or in returning to his place of residence after being mustered out of such service, or at any other time in consequence of wounds or disabilities received in such active service, his widow and children, if any, shall be entitled to all the benefits of such pension laws. Sec. 112, act of June 3, 1916 (39 Stat. 211). That the provisions of section one hundred and twelve of the national defense Act of June third, nineteen hundred and sixteen, shall be applicable to any officer or enlisted man drafted into the service of the United States pursuant to the provisions of this joint resolution. Sec. 2, Joint Res. 23, July 1, 1916 (39 Stat. 340). 1843. Pensions not granted to soldiers while in military service. The period of service of all persons entitled to the benefits of the pension-laws, or on account of whose death any person may become entitled to a pension, shall be construed to extend to the time of disbanding the organization to which such persons belonged, or until their actual discharge for other cause than the expiration of the service of such organization. R. S. 4701. Officers absent on sick-leave, and enlisted men absent on sick-furlough, or on veteran-furlough with the organization to which they belong, shall be regarded in the administration of the pension laws in the same manner as if they were in the field or hospital. R. S. 4700. * * * 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. * Act of Mar. 3, 1891 (26 Stat. 1082). * The act of Mar. 3, 1891, set out here, superseded a provision excluding retired officers of the Army, Navy, or Marine Corps from the pension list contained in sec. 2, act of Aug., 29, 1890 (26 Stat. 371). This provision also superseded R. S. 4724, which provided that no person in the Army, Navy, or Marine Corps should draw both a pension as an invalid and the pay of his rank or station in the service, unless the disability for which the pension was granted be such as to occasion his employment in a lower grade, or in the civil branch of the service. Notes of Decisions. Construction and operation.-Under the pension appropriation act of Aug. 20, 1890 (26 Stat. 370), and this act, 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 retrospec tive effect so as to cut off arrears already due. (1896) 21 Op. Atty. Gen. 408. 1844. Pension according to rank when injured.-Every commissioned officer of of the Army, Navy, or Marine Corps shall receive such and only such pension as is provided in the preceding section, for the rank he held at the time he received the injury or contracted the disease which resulted in the disability, on account of which he may be entitled to a pension; and any commission or presidential appointment, regularly issued to such person, shall be taken to determine his rank from and after the date, as given in the body of the commission or appointment conferring said rank: Provided, That a vacancy existed in the rank thereby conferred; that the person commissioned was not disabled for military duty; and that he did not willfully neglect or refuse to be mustered. R. S. 4696. Notes of Decisions. Rank-Invalid pension.-The date of the on the lineal, not the brevet, rank of such invalid pension of an Army officer depends officer. (1853), 6 Op. Atty. Gen. 88. 1845. Age of 62 years and over a permanent specific disability.- * And provided further, That hereafter the age of sixty-two years and over shall be considered a permanent specific disability within the meaning of the pension laws. * Act of March 4, 1907 (34 Stat. 1406). 1846. Pension agents to take no fees.-Every pension agent, or other person employed or appointed by him, who takes, receives, or demands any fee or reward from any pensioner for any service in connection with the payment of his pension, shall be fined not more than five hundred dollars. Sec. 108, Criminal Code, act of March 4, 1909 (35 Stat. 1107). 1847. Payment of pensions of veterans in the Soldiers' Home.-That any inmate of the Home who is receiving a pension from the Government, and who has a child, wife, or parent living, shall be entitled, by filing with the pension agent from whom he receives his money a written direction to that effect, to have his pension, or any part of it, paid to such child, wife, or parent. The pensions of all who now are or shall hereafter become inmates of the Home, except such as shall be assigned as aforesaid, shall be paid to the treasurer of the Home. The money thus derived shall not become a part of the funds of the Home, but shall be held by the treasurer in trust for the pensioner to whom it would otherwise have been paid, and such part of it as shall not sooner have been paid to him shall be paid to him on his discharge from the institution. The board of commissioners may from time to time pay over to any inmate such part of his pension money as they think best for his interest and consistent with the discipline and good order of the Home, but such pensioner shall not be entitled to demand or have the same so long as he remains an inmate of the Home. In case of the death of any pensioner, any pension money due him remaining in the hands of the treasurer shall be paid to his legal heirs, if demand is made within three years; otherwise the same shall escheat to the Home. Sec. 4, act of Mar. 3, 1883 (22 Stat. 564). 1848. Payment of pensions of veterans in the National Home for Disabled Volunteer Soldiers.-* such of these as have neither wife, child, nor parent dependent upon them, on becoming inmates of this home, or receiving relief therefrom, shall assign thereto their pensions when required by the board of managers, during the time they shall remain therein or receive its benefits. R. S. 4832. All pensions payable, or to be paid under this act, to pensioners who are inmates of the National Home for Disabled Volunteer Soldiers shall be paid to the treasurer or treasurers of said home, upon security given to the satisfaction of the managers to be disbursed for the benefit of the pensioners without deduction for fines or penalties under regulations to be established by the managers of the home; said payment to be made by the pension agent upon a certificate of the proper officer of the home that the pensioner is an inmate thereof and is still living. Any balance of the pension which may remain at the date of the pensioner's discharge shall be paid over to him; and in case of his death at the home, the same shall be paid to the widow, or children or in default of either to his legal representatives. Sec. 2, act of Feb. 26, 1881 (21 Stat. 350), making appropriations for pensions. That all pensions and arrears of pensions payable or to be paid to pensioners who are or may become inmates of the National Home for Disabled Volunteer Soldiers shall be paid to the treasurers of said home, to be applied by such treasurers as provided by law, under the rules and regulations of said home. Said payments shall be made by the pension agent upon a certificate of the proper officer of the home that the pensioner is an inmate thereof on the day to which said pension is drawn. The treasurers of said home, respectively, shall give security, to the satisfaction of the managers of said home, for the payment and application by them of all arrears of pension and pension-moneys they may receive under the aforesaid provision. And section two of the act entitled "An act making appropriations for the payment of invalid and other pensions of the United States for the fiscal year ending June thirtieth, eighteen hundred and eighty-two, and for deficiencies, and for other purposes,” approved February twenty-sixth, eighteen hundred and eighty-one, is hereby revived and continued in force. Scc. 1, act of Aug. 7, 1882 (22 Stat. 322), making appropriations for sundry civil expenses. Sec. 1 of the act of Feb. 26, 1881, made appropriations for payment of pensions for said fiscal year, which were the pensions referred to in this section as payable, or to to be paid under this act." Notes of Decisions. Assignment of pensions.-The assignment of his pension certificate by an inmate of the National Home for Volunteer Soldiers, under this section, does not give to the managers of that institution a right to collect or receive the pension therein mentioned for any period of time other than that during which he remains an inmate of the home or receives its benefits. (1879) 16 Op. Atty. Gen. 374. Payment of arrears.-Where the Pension Bureau paid arrears due to an old soldier to the treasurer of the home of which he was an inmate, the obligations of the United States have been fully carried out. The home is not authorized to collect or receive arrearages of pensions under act Jan. 25, 1879, either on assignment or otherwise. (1879) 16 Op. Atty. Gen. 374. Payment of arrears of pension to the home for prudential or other reasons, except when made in accordance with law, will not relieve the Government of its obligation to the pensioner. Assignments not warranted by special enactment are forbidden by R. S. 4745, post, 1857. Id. And 1849. Payment of pensions to veterans in State soldiers' homes.provided further, That from and after the passage of this Act all pensioners who may be inmates of any soldiers' and sailors' home, or other institution maintained by any State for the benefit of dependent or other disabled volunteer soldiers, shall have their respective pensions paid to them directly instead of to the treasurer or other officer of the home or institution at which they may be respectively located. Act of May 28, 1908 (35 Stat. 419). 1850. Pension apportioned to the wife or child of a veteran.-That section forty-seven hundred and seventy-six, Title fifty-seven, of the Revised Statutes of the United States, be, and the same is hereby, amended by adding thereto the following additional provisions and provisos, to wit: * * Provided further, That when a soldier or sailor enters into a State home for soldiers or sailors as an inmate thereof, one-half of his pension accruing during his resi dence therein shall be paid to his wife, she being a woman of good moral charac ter and in necessitous circumstances, or if there be no wife, then to his child or |