Theron K. Gleason v. The Board of County Commissioners of The County of Sedgwick

• Decision Date: 06 June 1914
• Docket Number: 18,910
• Parties: THERON K. GLEASON, Plaintiff, v. THE BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF SEDGWICK, Defendant
• Court: Kansas Supreme Court

141 P. 584

92 Kan. 632

THERON K. GLEASON, Plaintiff, v. THE BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF SEDGWICK, Defendant

No. 18,910

Supreme Court of Kansas

June 6, 1914

Decided January, 1914.

Original proceeding in mandamus.

Writ denied.

SYLLABUS

SYLLABUS BY THE COURT.

PENSIONS--To Certain Disabled Residents--Granting of, Discretionary. The granting of pensions by the board of county commissioners to persons described in chapter 146 of the Laws of 1911 and chapter 149 of the Laws of 1913 is not mandatory, but discretionary.

W. P. Campbell, of Wichita, for the plaintiff.

John S. Dawson, attorney-general, and George McGill, county attorney, for the defendant.

OPINION

WEST, J.

The plaintiff, alleging that he has resided in the state more than fifteen years and in the county more than ten years and is destitute of means of support and has no near relatives who are financially able to support him, and that he has lost the sight of both eyes and is otherwise by reason of disease and infirmities and his great age unable to perform any labor, has demanded of the county board that he be granted a pension sufficient for his maintenance, compliance with which request being refused he prays may be compelled by mandamus. The board answers that in its opinion it would be unwise to grant the pension, but that the county is and has been paying the plaintiff $ 10 per month for his support; that the granting of such pension is discretionary with the board. The plaintiff contends that the duty of the board is mandatory.

The constitution requires that the respective counties of the state shall provide as may be prescribed by law for those inhabitants who by reason of age, infirmity, or other misfortune may have a claim upon the aid of society. (Const art. 7, § 4.) Chapter 146 of the Laws of 1911, "An act authorizing the board of county commissioners of any county in Kansas to pay a monthly pension to certain disabled residents thereof," provides that any county is authorized and empowered to pay such pension, not exceeding $ 50 a month, to persons afflicted like the plaintiff, whose parents and near relatives are not financially able to care for them, provided such persons have been residents of the state fifteen years and of the county ten years previous to the taking effect of the act. By chapter 149 of the Laws of 1913 this provision was amended so that the board is authorized and empowered to pay a monthly pension to a person thus afflicted who is wholly disabled from performing any manual labor, provided he has been a resident of the state for fifteen years and of the county for ten years previous to the date of application. In all other respects the act remains the same. It is quite apparent that the language of this legislation purports to grant authority, but not to prescribe a mandatory duty. By section 2 of the original act the board can not grant a pension in excess of $ 25 a month without submitting the matter to popular vote. It is suggested that unless the later act is mandatory there was no reason for the amendment, but the change added the provision that the applicant must be unable to perform any manual labor and could date the period of residence from the time of the application and not from the taking effect of the act. Phelps v. Lodge, 60 Kan. 122, 55 P. 840, and Inhabitants of Veazie v. Inhabitants of China, 50 Me. 518, are cited. It was held in the former that the municipality in question being clothed with statutory power to appropriate money and provide for the payment of its debts was in duty bound to do so, and that a creditor could compel the performance of such duty by mandamus. In the latter case it appeared that Maine had a general statute making it the duty of the overseers of the poor to relieve destitute persons found in their towns, but a later act was passed authorizing and empowering cities and towns to make proper provisions for the support of...