55 N.E.2d 337 | Ind. Ct. App. | 1944
One Mary Jane Scott received an old age pension in the sum of Five Dollars per month under the provisions of chapter 36 of the Acts of the Indiana General Assembly of 1933, being § 52-301, et seq., Burns' 1933, from the first day of February, 1934, until the first day of February, 1936. She died April 2, 1942, and the appellants filed this claim against her estate to recover the amounts so paid with interest. The claim was disallowed, transferred to the issue docket and there *30 twice amended. The appellee demurred to the second amended claim for the reasons (1) that the claim did not state facts sufficient to constitute a cause of action, and (2) that the plaintiffs have no legal capacity to sue. The demurrer was sustained, and upon appellants' refusal to plead over, judgment was rendered against them, and they here assign only the alleged error of the court in sustaining the demurrer. To support its demurrer the appellee asserts that any claim appellants may have acquired against the estate by virtue of the Act above referred to, was destroyed by subsequent legislation.
The Act took effect January 1, 1934, provided for the payment of old age pensions, and further provided in § 7 thereof (§ 52-307, Burns' 1933) for the allowance and deduction of the amounts so paid from the estate of the pensioner after her death.
That legislation continued in force until it was specifically repealed by chapter 3 of the Acts of 1936 (see note to § 52-1416 Burns', 1933 [Supp.]), which took effect March 18, 1936, 1. authorized assistance payments for aged and blind persons and needy children, and provided methods for the recovery of payments so made, and in § 119 thereof, being § 52-1407, Burns' 1933 (Supp.), provided that "no right, . . . conferred, . . . by or under any law or laws hereby repealed shall be impaired or abrogated by reason of such repeal. . . ." The liability of the estate of the pensioner as fixed by the 1933 Act therefore continued without the aid of § 1-307, Burns' 1933, which is a general saving clause.
Pursuant to an opinion of the Attorney General of the State of Indiana rendered on the 28th day of *31
October, 1936 (Opinions of Attorney General of Indiana, 2. 1936, p. 395), to the effect that the County Departments of Public Welfare should collect the amounts paid as old age pensions after the passage of the 1936 Act, they have since continued to do so, and the amounts so collected have been equally divided between them and the State Department of Public Welfare. The opinion of the Attorney General is not controlling, yet the practical construction given to legislation by the public officers of the state and acted upon by those interested and by the people is influential, Zoercher v. Indiana AssociatedTelephone Corp. (1937),
The liability imposed upon the estates of deceased pensioners has therefore continued since January 1, 1934, unless it was destroyed by ch. 201 of the Acts of 1941, which amends § 38 3. and repeals §§ 44 to 48, both inclusive, of chapter 3 of the Acts of 1936. None of the sections amended or repealed include that by which the liability of the estate of deceased pensioners was kept alive, and we can find nothing in the 1941 Act which concerns or affects the old age pension law either expressly or by necessary implication. On the contrary only the provisions affecting the recovery of assistance payments authorized *32 by the 1936 Act were stricken out, and so the liability of the appellee under the 1933 Act continues.
We have considered the case of County Dept. of Pub. Welfare
v. Potthoff (1942),
Judgment reversed and cause remanded with instructions to overrule demurrer and for further proceedings.
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