Hannah v. Board of Commissioners ( 1918 )

Clark, C. J.

This action was begun before a justice of the peace,, and on appeal to the Superior Court was heard upon an agreed state-of facts.

The plaintiff seeks to recover the sum of $20 of the Board of Commissioners of Stokes County for the burial of George S. Kogers, who-was a Confederate veteran and on the pension rolls of that county. The-plaintiff buried the soldier and presented his account for $20 to the chairman of the Pension Board of Stokes, who approved the claim, and the clerk certified that the soldier was at the time of his death on the-pension roll of Stokes. He added to the certificate that there were two men on the pension roll by that name, and that this man was left on the pension roll of Stokes after he had moved to Surry. The soldier-died in Surry, where he had lived some years, and was buried there. The commissioners of Stokes refused to pay the account.

Eevisal, 5005a, provides: Whenever in any county of this State “a. Confederate pensioner on tbe pension roll of said county shall die,” it .«ball be tbe duty of tbe board of commissioners of such county, upon tbe certificate of said fact by tbe clerk of tbe Superior Court and recommendation of tbe chairman of tbe pension board of said county, to order tbe payment out of tbe general fund of tbe county of a sum not exceeding $20 to be applied towards defraying tbe burial expenses ■of such deceased pensioner.

Tbe soldier having died while still on tbe pension roll of Stokes, it would seem clear, upon tbe language of tbe statute, that upon tbe recommendation of tbe chairman of tbe Pension Board of that county and tbe required certificate of tbe clerk of tbe Superior Court that payment should have been ordered by tbe commissioners of Stokes.

In contemplation of tbe statute, tbe fact is not material in what ■county tbe pensioner died, but “on tbe pension roll of what county” be was a pensioner. Instances like this, where tbe pensioner on tbe roll of one county has died in another have been not infrequent. Years ago tbe State Auditor submitted to tbe Attorney-General tbe same question as to what county should pay $20 for tbe burial expenses of a soldier ■on tbe pension roll of Butherford who bad been a resident of that county, but for a few years prior to his death bad lived with a son in Union and a daughter in Anson, and bad died in Anson. Tbe Attorney-General advised that such expenses, not exceeding $20, should be paid by tbe commissioners of Eutherford, “as this is required by tbe express language of section 5005a of tbe Bevisal.”

This, we are informed, has been tbe uniform practice since. 'While this is not compelling authority, tbe advice of tbe Attorney-General and tbe uniform custom observed by tbe pension authorities and tbe State Auditor are entitled to respectful consideration. Besides, as it has been tbe uniform custom, tbe fact that tbe legislative department of tbe government has made no change in tbe language of tbe statute is entitled to weight as a legislative construction that such was tbe intent and proper construction of tbe act.

Doubtless tbe defendant board thought it was doing its duty in refusing payment, but the county of Stokes, which has earned so much fame by tbe heroic conduct of tbe brave men who risked their lives cheerfully ■at tbe call of tbe State and county, should have been slow to show reluctance to pay tbe petty sum of $20 for tbe decent burial of one of her gallant sons. His name having been retained on tbe pension roll of Stokes, whether this was done by mistake or not, it is certain that ■payment for bis burial expenses could not have been collected out of •the county of Surry, for be was not “on tbe pension roll” in Surry, and if tbe action of tbe defendant board was legal, tbe burial expenses of the deceased veteran would have fallen upon tbe plaintiff, who gave him the honor that was due him of a decent burial. The defendant board doubtless did not wish this, but was inadvertent to the fact that, under the statute, payment for the burial charges could fall only upon the county on the pension roll of which the soldier was a pensioner.

The burial took place 28 February, 1915, almost four years ago, and after defendant refused to pay, this proceeding was begun 16 June, 1916, and has only reached this Court for decision after the lapse of two years and four months. If an action of this kind should have been forced at all by the refusal of the defendant board to pay, there is no reason why it should not have been presented in this Court two years ago. The case required no evidence, for the facts were agreed, and no investigation of the law beyond the statute itself was necessary. Such delays are inexcusable. The court costs and the interest on the delayed payment will probably more than double the principal amount which the county was called upon to pay. In the meantime, the worthy citizen who made the payment has been without reimbursement of the modest sum which he paid out years ago.

Eeversed.