Montana Attorney General Opinion 15-405

Opinion No. 405 Mothers Pensions-Amount of Pension, Property or Income Taken Into Account HELD: 'Where a mother and her children are wholly dependent upon the labor of the mother for care and support, the children are entitled to the allowances fixed by section 10481. The Board of County Commission- ers have authority to reduce the al- lowance named in Section 10481, to what the v think is actually necessary when a inother or her children have propert~· or income which may be used for the ea re and sUQPort of the chil- dren. December 6, 1933 You have requested my opinion on the questions (1) to what extent the conunissioners are bound by the allow- ances fixed by Section 10481, R. C. M. 1921, (Mother's Pension Act, Sections 10480-10487, as amended by Chapter 133, Laws of 1933) which provides for $20.00 per month if there is one child and if there is more than one child, $15.00 per month for the first child, $10.00 per month for the second child and $5.00 per month for each addition- al child, the total not to exceed $50.00 pel' month; and (2) whether the board of county commissioners must allow to mothers with children dependent upon them for care and support the full amounts provided in the said Sec- tion 10481. It will be observed in reading the Act that the Legislature has provided (Section 10489) that the "child shall be entitled to such assistance which will help make it possible for such child to he cared for in his own home with- out being !;lent to some public institu- tion, said financial aid to be given to the mother of said child or children as in this section provided." In Section 10482 it is stated that the allowance must be made when in the absence of such allowance the mother is unable to properly provide for and care for said child or children without being required to work regularly away from her own home and children. The purpose of the Legislature was ful'ther expressed in the title to the original Act, heing Chapter 80, Laws OPINIO:\"S Ol!~ THE AT.rOR:\"EY GE:\"ERAL 283 of 1915. "An Act to Provide for Fi- nancial . Aid in the Care of Dependent Children in their own homes under the !lirect Control of the ~lothers of such Children. whose Fathers are dead ,. ,. • and" • ,. whose Mothers are who 1- I~' dependent upon their labor for sup- port." Section 10482 as amended in 1933 requires (3) that the allowance shall he made upon the condHion that the mother be physically, mentally and morally fit for the bringing up of her Children, and (4) when in the judg- ment of the board of county commis- ;;ioners such allowance shall be actu- ally necessary for the support and maintenance of the child or children in the home. It is evident from the foregoing that it was the intention of the legislature to provide suitable homes and support therein for children whose fathers are dead, or for the other reasons men- tioned in Section 10480, are unable to support them, and whose mothers are wholly dependent upon their labor for support; and that to accomplish this purpose the Legislature found that the a mounts men tioned in Section 10481 were necessary. In other words. the allowances named constitute both the minimum and the maximum where the mother as well as the children are wholly dependent upon thl' lallor of the mother for their support. In such cir- cumstances the board of county com- missioners would have no right to dis- regard the plain intention, purpose and will of the Legislature. It does not follow, however, that in all instances and regardless of the fi-. nancial condition of the mother or the children, that the board of county com- missioners must allow the full amounts named in Section 10481. Assume that a mother with se,'en children receives a monthly endowment of $40.00 from life inRul'ance left by a f1l'cl'asell hus- band. If the board of county commis- sioners made the full allowance by statute she would receive $50.00 from the county, thus making a total in- come of $90.00 per month. It is the legal as well as the moral duty of the mother to support and care for her children to the extent of her financial ahility and to that extent the county should be relieved. Othenvise, on ac- count of lack of poor funds, some chi!- dren might not be able to receh'e any- thing while the children of the mother with partial financial ability in some instances would receive nearly twice the amount of the maximum allowed lIy law. It is my opinion that it was the intention of the Legislature that the financial ability of the mother, as well as the children, in .the e,-ent they ha "e property or independent income. ~hould be taken into consideration and that the board of county commission- ers has authority to rerluce the al- lowance accordingly. As we ha "e pointed out. Section10-l82 provides as a condition to the allowance that "such allowance shall in the judg- ment of the board of county commis- sioners he actually necessa ry for th!' support and maintenance of the child or children in the home." If the mother has some income which she is by law required ·to contribute, or if one or more of the children haye income or property which under our statutes ma~­ he used for his or their support, then the board of county commissioners may find as a fact that the full allowance is not actuall~' necessary, and if they so find, they have no legal authority to use puhlic funds to the extent of the full allowance for pension purposes. This intention of the Legislature is further supported by the language of the section, which provides that the application of the mother must set forth the "financial conditions of such mother and child or Children," that the commissioners shall "make a thorough inYestigation of all the facts of the case," and that the mother after allowance of her application must each month file a "report ,. .. ,. showing a detailed statement of all income of the family from wha,tever source for the preceding month." Unless the boaI'll of county commis- :,;ioners has the authority to cut the vension down to what they think is "actually necessary" when added to the other income of the fa'mily, they would be obliged to refuse any allow- ance at all if they did not believe the full amount ;'actually necessary." ~'bis would lead to absurd and unjust situ- ations and I believe, would be a frus- tration of the legislath-e intention and will. On the other hand, the conclu- sion I hll ,'e reached is in my opinion within the spirit as well as the letter of the law.