PARKER CONSTITUTION CLUB OF NEW YORK CITY.
REPORT No. 1— Addendum.
Replies to Arguments Against our Conclusions in
Report No. i on the Pension Matter.

Various arguments have been brought to our attention oppos
ing the conclusion which we reached in Report No. i, that
President Roosevelt's conduct was unconstitutional in relation to
Pension Order No. 78. We desire briefly to review these one by
one. (1) President Roosevelt in his letter of acceptance states
that the ' ' order was made in the performance of a duty imposed
upon the President by an act of Congress,' which requires the
Executive to make regulations to govern the subordinates of the
Pension office in determining who are entitled to pensions."
What the President intends to refer to is the provision in the
Civil War Pension Act that persons suffering from the disability
there prescribed shall be placed upon the pension list "upon
making due proof of the fact according to such rules and regula
tions as the Secretary of the Interior may provide." The one
' ' fact " to be proved under the statute is that the man is so per
manently disabled as to be incapacitated from performing manual
labor sufficient to earn a support. Any rule of the office must be
adapted to that end, and no rule is legitimate which in effect
annuls the requirement of the act and substitutes a pension for
age. In the Mexican War Act where pensions were expressly
given for age, it was prescribed that ' ' proof shall be made under
such rules and regulations as the Secretary of the Interior may
prescribe of the right of the applicant to a pension. ' ' The age
there required was 62. Obviously, no rule should attempt to
change that enactment so as to give a pension to a man not 62.
So likewise in the Civil War Act : no rule should be made so as
to give a pension to one not disabled. In other words, the duty
of making a rule to carry out the provisions of an act does not

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give the right to nullify those provisions, or to substitute the
terms of another statute for the terms of the one which the Exec
utive is supposedly putting into effect.
(2) The other reason for the order given by President
Roosevelt is that ' ' President Cleveland had already exercised this
power by a regulation which declared that seventy-five should be
set as the age at which total disability should be conclusively pre
sumed. Similarly, President McKinley established sixty-five as
the age at which half disability should be conclusively presumed. ' '
We have not approved of the theory on which the order was
issued in Mr. Cleveland's administration. We pointed out in our
main report vital differences between the scope and effect of that
order and the one issued by President Roosevelt. We should
also call attention to the fact that no evidence has been adduced
that this matter was ever brought to Mr. Cleveland's personal
attention. The order of President Roosevelt's Commissioner, on
the contrary, was the intentional creation by the administration
of a new class of pensioners, for which action it ostentatiously
now asks credit. So far as President McKinley is concerned, we
have searched in vain for any order of his on the subject. There
was a ruling by the Pension Department during the presidency
of McKinley in the case of one Francis Frank, that he should
receive a pension because he had attained the age of 65.
Whether this was ever brought to the attention of President
McKinley we do not know, but assuredly we have not been
referred to any order of his or to any general order of the Pension
Bureau during his incumbency to the effect that President
Roosevelt states.
(3) Pension Commissioner Ware has written an open letter
asserting that Congress has ratified the order and substantially
made it a law through statutes passed since the order was promul
gated. The jaunty, not to say flippant, tone of the Commissioner's
letter is similar to the tone of the answer of the Postmaster
General of the present administration when his attention was
called to the report on the Post-Office frauds, which he character
ized as "hot air," but which were subsequently discovered to

be the solemn truth. The Pension Commissioner contemptuously
likens those Democrats who assume the right to criticise the
impeccable Republican party as ' ' mosquitoes. ' ' He also proposes
to submit the proposition of the propriety of his conduct ' ' to any
"blacksmith in the United States." A proper regard for our
self-respect would warrant our declining to enter into any con
troversy with a government officer who is so manifestly lacking
in the elementary principles of courtesy and propriety which
should govern the public utterances of a high official charged
with serious wrong-doing by a body of American citizens, how
ever insignificant or misguided that body of American citizens
may be.
But aside from that, his defense is against the facts. In his
annual report for the fiscal year ending June 30, 1904, the Com
missioner, under Exhibit 25, gives "new legislation." The only
statutes given after the law went into effect are the appropriation
bills. The main appropriation bill reads as follows :
' ' For army and navy pensions as follows : For invalids,
widows, minor children and dependent relatives, army nurses
and all other pensioners who are now borne on the rolls, or
who may hereafter be placed thereon, wider the provisions of
any and all Acts of Congress, one hundred and thirty-seven
million ten thousand six hundred dollars."
The deficiency appropriation bill reads as follows :
' ' For army and navy pensions as follows : For invalids,
widows, minor children and dependent relatives, army nurses
and all other pensioners who are now borne on the rolls, or
who may hereafter be placed thereon, under the provisions of
any and all Acts of Congress, four million dollars. ' '
We go back to the statement made in our original report,
that not only under the United States Constitution, which pro
vides by Article 1, § 9, that "No money shall be drawn from the
Treasury but in consequence of appropriations made by law, ' ' but
also under the very terms of these appropriation acts, carefully
including as they do the phrase ' ' under the provisions of any and
all Acts of Congress, ' ' not a dollar of money should be paid out
except to a pensioner made such by the statutes of Congress.

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When we demonstrate that Executive Order No. 78 has created
a class of pensioners who were not created pensioners by Congress,
that demonstration necessarily leads to the conclusion that every
pensioner of this class who receives any money from the Secretary
of the Treasury is being paid on a warrant illegally issued. Com
missioner Ware asks ' ' How did the Commissioner get the money
to pay those pensions ?" " Did the Commissioner open the
treasury with a crowbar and abstract the money ? ' ' Our answer
is that it was not a crowbar, but it was the hand of the
Secretary of the Treasury, who is to-day improperly paying pen
sioners not borne on the rolls under the provisions of any act of
Congress, when he should pay only those for whom Congress has
provided. Congress has in the express terms of the appropriation
bill devoted the Nation's money only to pensioners made such by
"Acts of Congress.',' No one should seriously contend that an
illegal executive order becomes an Act of Congress because it is
laid before the House of Representatives. That certainly is no
way to amend the pension law.
(4) It is also contended that the order is justified by the
provision of the act that the pension shall not exceed twelve
dollars per month, or be less than six dollars per month ' ' propor
tioned to the degree of inability to earn a support." There is
no merit or substance in that argument. That provision of the
act would only justify an order furnishing the rule for grading
the amount of the pension according to the extent of actual dis
ability. It does not sanction an order dispensing with actual
proof of inability to earn a support in some degree.
(5) The final argument against our report is an invitation
to attempt impeachment of the officials concerned in this matter.
Impeachment is easy to advise when Congress is not in session.
But apart from that, we dispute the proposition that an illegal
executive order is made legal by the omission of the House of
Representatives to move the impeachment of the officer issuing it
after it has been reported to the House, and we renew our asser
tion that the remedy at the polls is more summary than and as
efficient as any impeachment proceedings.