145 S.E. 641 | W. Va. | 1928
The petitioner is the widowed mother of two children under the age of fourteen years. She applied to the county court of Mercer county for a mother's pension under the provision of Chapter 46 B, Code, as amended by Acts 1923, Chapter
The respondent answers that because of complaints subsequent to the award, it had the county probation officer investigate and report on the petitioner, and upon that report concluded that the petitioner was not a proper person morally to bring up her children; and accordingly caused the pension to be discontinued. Several affidavits are filed with the answer which charge petitioner with grossly improper conduct, to the consideration of which petitioner objects. The affidavits were taken without notice to petitioner, and without afterwards affording her the opportunity for cross-examination. They cannot, therefore, be accepted as proof of her moral obliquity. 2 C. J. 373; 1 Rawle C. L. p. 766, sec. 9; Dale v. Atwell,
It is the established rule that a pension, such as the one here, is a mere gratuity in which the pensioner has no vested legal right, and which is terminable without notice, at the will of the state. 22 A. E. Ency. Law, p. 658; 21 Rawle C. L., p. 242, sec. 7; U.S. v. Teller,
The procedure in this state for obtaining a mother's pension is definitely prescribed by the statute. Section 3 of Chapter 46 B, Code, requires that upon the filing of an application for relief, the home of the mother shall be visited by a member of the court who shall investigate the facts set forth in the application, and shall report to the court thereon together with his approval or disapproval of the application. *320 After such investigation and report, a petition may be filed by the investigator or "any reputable person of the county" setting forth the facts necessary to give the court jurisdiction, etc., and making the mother and the court respondents thereto. Summons shall then be served on the respondents and the court shall hear the cause upon the return day of the summons, etc. See sections 4-8. Section 9 directs that "upon the hearing in court" if the court finds the facts alleged in the application to be true, it shall make an order to pay the mother the amount necessary to care for the children, etc., "until further order of the court". Section 11 prescribes the conditions upon which relief shall be granted — one of which is that the mother must, in the judgment of the court, be a proper person morally to bring up her children.
The hearing contemplated under the statute is obviously a public hearing, where counsel may appear and evidence be introduced. Ellis v. Road Commission,
The statute does not prescribe the manner in which an award may be terminated. As the interests of the mother are as much at stake in the revocation as in the allowance of the pension, it would seem that the same consideration should be extended her in each instance. The procedure adopted by the respondent in vacating the allowance is the opposite in every way to that followed in granting it. The award was the result of an open hearing of which the petitioner had notice. The revocation was the result of an ex parte investigation *321
of which she had no notice. The award was the result of the judgment of the court. The revocation was the result of the representations of an investigator who is not endowed with any authority under the Act. The only investigation directed thereby is that of a member of the court. Even his recommendation thereon is not conclusive. It will be considered at the hearing, but is merely advisory. People v. Scannell,
In her application for the pension, which was sworn to, the petitioner alleged that she was a fit person morally to bring up her children. She also swore to her moral propriety at the hearing. The court accepted her statement. If she is in fact the character portrayed by the affidavits and reported by the probation officer, she deceived the court and should not be permitted to reap the advantage of her own fraud. 12 Rawle C. L., p. 395, sec. 144; Cox v. Invest. Co.,
*322Alternative writ amended; peremptory writ awarded.