United States Burnett v. Teller

By an act passed March 3, 1873, entitled 'An act to revise, consolidate, and amend the pension laws,' (17 St. 569, § 4; Rev. St. § 4698,) it was provided that from and after June 4, 1872, all persons entitled by law to a less pension than thereinafter specified, who, while in the military or naval service of the United States and in the line of duty, had been so permanently and totally disabled as to render them utterly helpless, or so nearly so as to require the regular personal attendance of another person, should be entitled to a pension of $31.25 per month. Afterwards, by an act passed June 18, 1874, a pension of $50 per month was granted to the persons described in the act of March 3, 1873, in lieu of the pension of $31.25 granted by that act. By an act approved June 16, 1880, it was provided as follows:

'All soldiers and sailors * * * who are now receiving the pension of $50 per month,' under the act last aforesaid, 'shall receive, in lieu of all pensions now paid them by the government of the United States, and there shall be paid to them, in the same manner as pensions are now paid to such persons, the sum of $72 per month.' The act further declared 'that all pensioners whose pensions shall be increased by the provisions of this act from $50 per month to $72 per month, shall be paid the difference between said sums monthly, from June 17, 1878, to the time of the taking effect of this act.'

Prior to the passage of the last-mentioned act congress had passed an act, which was approved March 3, 1879, 'granting an increase of pension to Ward B. Burnett,' which was as follows:

'That the secretary of the interior be, and he is hereby, authorized and directed to place on the pension roll the name of Ward B. Burnett, and pay him a pension of $50 per month in lieu of the pension he now receives; but nothing in this act contained shall entitle the said Ward B. Burnett to arrears of pension.' 20 St. 665.

On October 20, 1882, Ward B. Burnett, the person named in the special act above mentioned, filed in the supreme court of the District of Columbia, as relator, in the name of the United States, a petition against Henry M. Teller, secretary of the department of the interior, in which he recited the foregoing legislation of congress, and averred that he was a survivor of the war with Mexico, and other wars, of which he was an officer in the army of the United States; that he was wounded at the battle of Cherubusco on August 24, 1847; that for wounds received in battle he was granted, under a general pension law of congress, a pension at the rate of $30 per month, which he received from August 1, 1848, until March 3, 1879; that under the special act of the date last mentioned a pension certificate, dated June 6, 1879, signed by the secretary of the interior and countersigned by the commissioner of pensions, was ecuted and delivered to him, on which he was paid from March 3, 1879, to June 4, 1882, a pension at the rate of $50 per month.

The petition further alleged that the relator had applied to the commissioner of pensions to be paid the increased rates of pension authorized by the said acts of congress, approved respectively June 8, 1872, June 18, 1874, and June 16, 1880, and had received another pension certificate, dated July 17, 1882, which recited that the relator was entitled to a pension at the rate of $30 per month, to commence on August 1, 1848, and of $31.25 per month from June 4, 1872, and of $50 per month from June 4, 1874, and $72 per month from June 17, 1878; that on July 21, 1882, the relator returned to the secretary of the interior the pension certificate which had been issued to him under the special act of congress passed March 3, 1869, granting him a pension of $50 per month; that when he returned said certificate he was without the advice of counsel, and was fearful that he would be deprived of his greater pension under the general pension laws; and that on October 4, 1882, relator respectfully demanded in writing of the secretary of the interior that he return to him said certificate, which the secretary, by his decision made October 18, 1882, refused to do. The petition prayed for the writ of mandamus to compel the secretary to return said certificate to the relator, and to cause to be paid to him the accrued pension due thereon.

The secretary of the interior filed an answer to this petition, in which he alleged that, since June 4, 1872, the relator had received, under the general session laws, payments as follows: From June 4, 1872, to June 4, 1874, the sum of $750, being at the rate of $31.25 per month; from June 4, 1874, to June 17, 1878, the sum of $2,421.66, being at the rate of $50 per month; from June 17, 1878, to June 4, 1882, the sum of $3,424.80, being at the rate of $72 per month; from June 4, 1882, to September 4, 1882, at the same rate, $216,-making in all the sum of $6,812.46; and that, in addition to these payments under the general laws, he had received, under the special act of March 3, 1879, granting him by name a pension at the rate of $50 per month, payments as follows: From March 3, 1879, to June 4, 1882, the sum of $1,951.67, being at the rate of $50 per month.

The answer further alleged that on July 21, 1882, the relator addressed a letter of that date to the secretary of the interior, with which he returned the certificate dated June 17, 1882, issued to him under the special act of March 3, 1879, granting him a pension of $50 per month. That letter was as follows:

'WASHINGTON, July 21, 1882.

'Hon. H. M. Teller, Secretary of the Interior-SIR: To relieve your department from further embarassment in reference to what has been styled Gen. Ward B. Burnett's claim of double pension, I hereby return to you my certificate, and relinquish any claim that I may have under it from date of this letter, made under a special act of congress, (increase,) dated March 3, 1879, upon which I have been drawing $50 per month, and shall be satisfied with receiving my pension under the general pension laws, granted by yourself, under the several opinions of the attorney general, dated July 17, 1882, until congress, in its bounty, shall think it proper to increase my pension of $72 per month, under said general pension laws, again.

'I have the honor to be, very respectfully, yours,

'WARD B. BURNETT.'


 * The case having, by stipulation of parties, been heard in the first instance at the general term of the supreme court of the district, a judgment was rendered dismissing the petition. This writ of error is prosecuted to review that judgment.

''Jas. H. Mandeville'', for plaintiff in error.

''Sol. Gen. Phillips'', for defendant in error.

WOODS, J.