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the class entitled to admission shall contribute from their pensions or other scant resources which they may have towards their maintenance. The legislature might have so provided; but it did not. In some of our sister States such conditions were imposed, and the Federal law creating national soldiers' homes first expressly provided that applicants must surrender their pensions as a condition of admission; but subsequent legislation to the contrary has removed those conditions for admission to the national soldiers' homes, and the same course has been followed by most of the States. A report of inspection of State soldiers' and sailors' homes for the year 1910, made by the inspector general of the national home for discharged soldiers, shows that of 54 such institutions scattered throughout the United States only 5 exact any part of the inmate's pension for his maintenance or the support of the home.
It is contended in behalf of defendants that under the provisions of sections 8 and 11, above quoted, power was delegated to the board by the legislature to include in the rules and regulations which it was authorized to adopt for a system of government of the home the condition of admission requiring contributions from pensions now in controversy, and that such authorized rules and regulations when adopted and promulgated have all the force and effect of a statute.
The question of what power was delegated by statute to the board came before this court in Loser v. Board of Managers, 92 Mich. 633 (52 N. W. 956). In that case a mandamus was asked to compel respondents to vacate a rule, numbered 14, and a general order based upon it, requiring every pensioner admitted to the home who received a pension in excess of $5 per month to turn the excess over to the commandant, subject to the disposal of the board of managers, and providing that if an improper use was made of the $5 allowed to be retained leading to infractions of rules of the institution, such allowance should be suspended; also directing that the commandant ascertain as soon as possible the wife, dependent children, or parents of the inmates receiving pensions, and cause the money so received from the pensioners to be sent to them, or, in case no one was dependent upon any pensioner, the money so received from him should be held by the board and ultimately paid back to him upon his final discharge from the home. The position then taken by the board of managers is not in harmony with the present attitude of the board. It then, in effect, disclaimed any purpose or right to permanently retain or appropriate the money taken from pensioners, and urged in justification of the rule that it was adopted for the sole purpose of enforcing discipline and maintaining order, and that without such rule it would be impossible to do so. Approving this contention as well founded so far as it applied to temporarily taking control of the pensioner's money, the court said:
"We think it is within the power of the board to require the pension money of the inmates to be deposited, if, in the words of the statute, they deem it necessary to preserve order, enforce discipline, or preserve the health of the inmates."
The permanent retention of a former inmate's pension after he is dead or discharged could scarcely be urged as necessary to enforce discipline, preserve order or health.
The significance of that opinion as applied to this case is found in that portion dealing with the provision of rule 14 requiring the commandant to ascertain the dependent relatives of inmates who drew pensions, and to pay the deposited portions of the pensions to such relatives. While recognizing that the act lodged a broad discretion with the board, in the management and government of the institution, which courts would not interfere with, unless a very clear case of abuse was shown, the court in that connection very plainly indicated the limit of such discretion in handling the pensions of inmates, as follows:
"We do not, however, think that the statute confers upon the board the right to determine what relatives are dependent upon the pensioner for support, and to direct how much of such money shall be sent to such relatives. To this extent, therefore, rule 14 is void, and must be vacated."
It is true, as claimed by defendants, that the question, directly in issue here, of the right of the board to for all time deprive the inmate of any part of his pension money and permanently appropriate it to support of the home was not raised, for the manifest reason that no such right was claimed or suggested; but when this court squarely held that the right of the board did not even extend to permanently depriving the inmate of his money for the apparently laudable and equitable purpose of applying it to the support of his dependent relatives, whom it was his natural and legal duty to support, if able, we see little room for argument as to the indicated limit of the board's authority in making final disposition of this money. To impose the condition requiring inmates to pay the institution in whole or in part for their maintenance, whether out of the pensions received or from other sources, is not to be treated as an abuse of discretion, but rather as an attempted exercise of a discretion which the law did not authorize.
It is urged in behalf of defendants that in other States, under similar statutes, the right of managing boards of soldiers' homes to take and appropriate the pensions of inmates has been universally upheld, citing, in support of this contention, the following cases: Ball v. Evans, 98 Iowa, 708 (68 N. W. 435); Howell v. Sheldon, 82 Neb. 72 (117 N. W. 109); Treadway v. Board of Directors, 14 Cal. App. 75 (111 Pac. 111); Brooks v. Hastings, 192 Pa. 378 (43 Atl. 1075); O'Donohue v. Soldiers' Home, 65 N. J. Law, 484 (47 Atl. 452). These cases involve the question raised here as applied to the statutes of the respective States. To the extent they are in conflict with Loser v. Board of Managers, supra, they cannot be regarded as controlling. Some of them are distinguishable in marked particulars. In Ball v. Evans, supra, the distinction is pointed out in the opinion. The Iowa statute creating the home did not define who was entitled to admission. Section 2 of the act provided that:
“The board of commissioners shall determine the eligibility of applicants for admission to the home.”
The Loser Case is cited in the opinion, and, amongst other things, it is said:
“In that case the court sustained rules similar to those here in controversy. So much of one rule was declared invalid as determined what relatives were dependent upon the pensioners for support, and directed how much of his pension money should be sent to such relatives. This holding was based upon the ground that the statute of Michigan did not authorize the board to determine that matter. Even that holding would not obtain here, for our statute authorizes the board to determine the question of the eligibility of applicants for admission to the home.”
Treadway v. Board of Directors, supra, is devoted chiefly to construing the California statute; the rules of the board being of minor significance. The following excerpt from the opinion indicates the principal question at issue, and the view of the court upon a condition relative to retaining any remaining pension money, of deceased inmates, expressly authorized by statute:
“The law does not purport to affect the estates of deceased persons' or 'change the law of descent or succession, and was intended for no such purpose; it merely extends to the class of persons indicated the benefits and privileges of the home on certain conditions. In the particular complained of applicants agree that their pension money shall be paid to the treasurer of the home from time to time as received to be held for their personal benefit and use while members, and without having made other disposition of it, any balance unexpended shall go to the home for the benefit of all the members, subject to the right of certain named persons to this balance if called for within a stated period—five years. It cannot be said that this regulation is harsh or burdensome or ungenerous, for the applicant is supposed to be in indigent circumstances when admitted, having no one under any legal obligation to support him, and it is only when the member dies intestate that the law operates to dispose of any balance to his credit, and to this he agreed when admitted as a member."
Howell v. Sheldon, supra, was based on the Nebraska statute, differing from that of Michigan in the particular that the board was not only required to prescribe rules for admission, but authorized to admit as inmates old soldiers, otherwise qualified, upon payment by them of their board if they so desired, thus giving the board a discretion not conferred by our statute. Though impelled to hold that the rule complained of was within the discretion of the board, the court suggested that:
"If the legislature believes the rule to be harsh, unnecessary, or inexpedient, it can limit the power of the board as to its right to require the payment of any part of the pensions of the inmates for the support of the institution, and thus conform the rule in this State to that in the majority of those States maintaining like institutions."
In the Pennsylvania and New Jersey cases special circumstances are shown under which the inequity of granting a recovery was emphasized, and the courts held that the payments were voluntarily made and could not be subsequently recovered, as the testimony