Flesher v. BOARD OF REVIEW, ETC.

77 S.E.2d 890
CourtWest Virginia Supreme Court
DecidedOctober 13, 1953
Docket10612
StatusPublished

This text of 77 S.E.2d 890 (Flesher v. BOARD OF REVIEW, ETC.) is published on Counsel Stack Legal Research, covering West Virginia Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Flesher v. BOARD OF REVIEW, ETC., 77 S.E.2d 890 (W. Va. 1953).

Opinion

77 S.E.2d 890 (1953)

FLESHER
v.
BOARD OF REVIEW, WEST VIRGINIA DEPARTMENT OF VETERANS' AFFAIRS.

No. 10612.

Supreme Court of Appeals of West Virginia.

Submitted September 15, 1953.
Decided October 13, 1953.

*891 Dorr C. Casto, Parkersburg, for appellant.

John G. Fox, Atty. Gen., Cletus B. Hanley, Asst. Atty. Gen., for appellee.

HAYMOND, President.

The applicant and appellant, Isaac S. Flesher, of Parkersburg, Wood County, *892 the dependent father of Harry Edward Flesher a deceased veteran of World War I, applied to the West Virginia Department of Veterans' Affairs on January 7, 1952, within the period provided by law, for the payment of a cash bonus under an amendment to the Constitution of this State, ratified at the general election on November 7, 1950, known as the Veterans' Bonus Amendment, and Chapter 197, Acts of the Legislature, 1951, Regular Session. The amount applied for is $190.00 based upon active service in the armed forces of the United States by Harry Edward Flesher within the territorial limits of the forty eight states and the District of Columbia, from April 6, 1917, to November 11, 1918, a period of nineteen months, at the prescribed rate of $10.00 for each month. The application disclosed that the veteran, Harry Edward Flesher, died on July 7, 1938, at Houston, Texas, and that at that time he was survived by his widow, Winonah L. Flesher, who then resided in that city and state and it contained the statement "no information in regards to wife".

Section 5, Chapter 197, Acts of the Legislature, 1951, Regular Session, fixed December 31, 1952, as the limit upon the time within which an application for the payment of the bonus could be filed. This limit was extended until June 30, 1953, by Section 5, Chapter 176, Acts of the Legislature, 1953, Regular Session; and at this time, except in certain designated exceptional cases, the period within which an application could have been filed has expired.

The Director of the West Virginia Department of Veterans' Affairs denied the application on September 30, 1952, on the ground that the deceased veteran was survived by an unremarried widow who, though not a resident of this State, was, under the applicable constitutional and statutory provisions, a member of a preferred class of surviving relatives and that her status as such excluded any claim to the payment of the bonus by a dependent parent as a member of a less favored class. The decision of the director was affirmed by the appellee, the Board of Review of the West Virginia Department of Veterans' Affairs, on May 7, 1953, and upon the petition of the appellant, filed June 6, 1953, a review of the final order of the board of review was granted by this Court on July 13, 1953, under Section 8, Chapter 197, Acts of the Legislature, 1951, Regular Session.

Upon a hearing by the board of review it appeared that the applicant had not heard from or received any information concerning the whereabouts of the widow of the deceased veteran since 1943, a period of more than seven years immediately preceding the date on which the application was filed; that he endeavored to locate her by communicating with the Missing Persons Division of the Houston, Texas, Police Department in February, 1952; that he was informed by letter from that division of the department that it had been unable to locate the widow from the information furnished by the applicant; that she had moved from her residence at 1235 Tulane Street in Houston in 1943; that she did not leave a forwarding address at that time; and that she was "supposed to have a sister" living in Houston but that the division was unable to learn the name of her sister. The letter from the division to the applicant stated that the division would "be glad to check further for her if you can send us any additional information about her". The record does not disclose that any further information was furnished the division by the applicant for the apparent reason that he possessed no information that would be helpful in locating the widow of his deceased son. It does not appear that the applicant knew anything about her or had ever visited or associated with her or that he knew anything about the members of her family. Though he was her father-in-law there is no indication that the relations between them after the death of the veteran in 1938 were other than or different from those of mere strangers.

On October 3, 1952, the Attorney General of West Virginia, at the request of the Director of the West Virginia Department of Veterans' Affairs, rendered a written opinion in which he expressed his conclusion with respect to the provision of the Veterans' Bonus Amendment to the Constitution *893 relating to the payment of the bonus to which a deceased veteran would be entitled if living to designated relatives of such veteran. The opinion on that question contains this language: "We believe when the amendment is read the interpretation which most strongly suggests itself is that there are three degrees of relatives who may be paid the bonus, but if there is one in existence in a higher degree, regardless of whether this person has made application for the bonus or is a resident of the State, no one in a lower degree may be paid. We have endeavored in every case to interpret the provisions of the amendment liberally in favor of the applicant; however, we do not believe that the amendment may be read to entitle a child or dependent parent to the bonus if there is an unremarried widow living outside the State, even though she fails to apply for the bonus before the date of expiration for application." The decision of the board of review, denying the application, accords with and was evidently based upon the foregoing opinion of the Attorney General.

The applicant seeks reversal by this Court of the final order of the board of review on substantially these grounds: (1) The widow of the deceased veteran, a nonresident of this State, not having been heard of by the applicant for a continuous period of more than seven successive years, and his efforts to discover her whereabouts with the aid of the Houston, Texas, Police Department having been unsuccessful, should be presumed in law to be dead when the application was filed, by virtue of the provisions of Section 1, Article 9, Chapter 44, Code, 1931; and (2) the widow, even if living, not being a resident of this State when the application was filed, and there being no children of the veteran under the age of sixteen, the applicant, as a dependent parent of the deceased veteran, is, under the provisions of the Veterans' Bonus Amendment to the Constitution and the provisions of Section 3, Chapter 197, Acts of the Legislature, 1951, Regular Session, entitled to the bonus to which the veteran, if living, would have been entitled.

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