Oregon Advisory Opinions January 13, 1953: OAG 53-1 (January 13, 1953)

Oregon Attorney General Opinions

1953.

OAG 53-1.

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62

Dear Sir: This is to acknowledge receipt of your letter of January 5, 1953, in which you refer to § 1, chapter 394, Oregon Laws 1943, as amended by § 1, chapter 323, Oregon Laws 1949, relating to educational aid to certain war veterans.

From the application of a veteran it appears that for two years prior to his entry into the service he lived in Boston, Massachusetts, and was enrolled in school in that city. He was twenty-four years old at that time and was a registered voter in Multnomah county where his parents resided. The applicant has received an Oregon veteran's bonus.

My opinion is requested as to whether or not

"* * * educational aid would be available to Mr. Holmes, inasmuch as, under the Oregon law, it is required that an applicant for educational aid be a resident of and domiciled within Oregon for one year prior to entry into the service." (Emphasis supplied)

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Your department, having granted the applicant a veteran's bonus under Article XI-F (2) of the Constitution, apparently has satisfied itself that the applicant was a domiciliary of this state for at least a year before his entry into the service. It remains only to be decided whether or not, in view of the applicant's sojourn in Massachusetts, he comes within the category of veterans who were "residents of * * * Oregon for one year" prior to entrance into the service.

Prior to the amendment of § 1, chapter 394, Oregon Laws 1943, by chapter 499, Oregon Laws 1947, the statute provided that

"War veterans of world war II who were residents of Oregon for one year prior to entrance in service and who are also residents of Oregon at the time they apply for benefits under this act, * * * are hereinafter referred to as beneficiaries. * * *" See chapter 402, Oregon Laws 1945. (Emphasis supplied)

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In Opinions of the Attorney General, 1946-1948, page 111, the opinion was expressed that "residents" as used in said act meant "domicile".

Chapter 499, Oregon Laws 1947, amended § 1, chaper 394, Oregon Laws 1943, so as to provide, in part

"War veterans of world war II who were residents of and domiciled within Oregon for one year prior to entrance in service and who are also residents of Oregon at the time they apply for benefits under this act, * * * are hereinafter referred to as beneficiaries. * * *" (Emphasis supplied)

In view of the interpretation placed on this section before the last referred to amendment, it must be presumed that by the amendment a change in the qualifications of a beneficiary was intended. Sutherland on Statutory Construction, §§ 1933, 1935, Vol. I, 3rd Ed.

Accordingly, the word "resident" must be given its natural meaning of referring to one who has a residence, an actual place of abode or dwelling in the state for the required period of time. Webster's New International Dictionary, 2nd Ed.; Price v. United States, (1949) 87 Fed. S. 901.

This does not mean that the applicant must have been physically present in the state at all times for one year prior to his entry into service. Temporary absence from the state would not render the applicant ineligible for educational benefits if he can prove that he had his permanent dwelling or place of abode in this state and did, from time to time, or intended to, return here. Hetson v. Sommers, (1943) 44 N.Y.S. (2) 31.

It is important to remember in this regard that the particular applicant in this case was over twenty-one years of age in the year October 30, 1942, to October 30, 1943, and had legal power to establish a residence separate from that of his parents.

Whether or not the applicant did retain his actual dwelling place in that of his parents in Oregon, and was in Massachusetts only temporarily for purposes of schooling, is a question of fact, determined largely by the applicant's intention with regard thereto and must be resolved by the department and can not be decided by this office on the strength of the facts known at this time.