State Ex Rel. Wilson v. Weir , 106 Mont. 526 ( 1938 )

This is an original application for a writ of mandate. Its purpose is to compel the respondent board of county commissioners to pay to relator by warrant or check relief awarded to him under Chapter 82, Laws of 1937. The facts from which the controversy arose are these:

Relator, a citizen of the United States and a resident of[1] Cascade county for more than four years, applied for general relief under Chapter 82. He was granted assistance under Part II of the Act. Instead of issuing to him a warrant or check, he was placed in an institution in Cascade county known as County Poor Farm No. 2. He appealed to the County Welfare Board, but it declined to change his form of relief. That board in its order stated: "Mr. Wilson was receiving relief in accordance with the plans outlined by the County Public Welfare Board, That the board did not consider the set-up illegal but in conformity with established rules of procedure, (2) and that cash could not be furnished as money was not available against which to issue the warrants, (3) that Mr. Wilson was receiving the same relief as other recipients in similar circumstances." Thereupon this proceeding was instituted here.

The only question presented is whether, under existing laws, the board of county commissioners, or the County Welfare Board, has any discretion with reference to the form or manner in which it may administer relief to the needy.

Section V of Part II of Chapter 82 provides: "All relief disbursements by the county or state departments to relief recipients shall be by warrant or check representing cash on demand, provided however that if there is evidence to prove that the recipient is in the habit of dissipating the relief allowance instead of using it for the purpose intended, cash relief will be discontinued to such person and the relief allowance will be given in the form of disbursing orders." And section XII, Part II, in part provides: "* * * As heretofore provided in this part, relief disbursements made by the county department to relief recipients shall be by warrant or check, payable from either the county or state funds, as available or as provided."

There is here no contention that relator has ever dissipated relief allowances made in cash so as to come within the latter part of section V. Respondents contend that by other provisions of Chapter 82 they have discretion in choosing the kind or form of relief which they may award.

Section X of Part I of the Act empowers the County Board of Public Welfare to establish "local policies and such rules and regulations as are necessary to govern the county department and local administration of public welfare activities except that all such policies and rules and regulations must be in conformity with general policies and rules and regulations established by the state board."

Section XI of Part I provides: "The county department of public assistance shall be charged with the local administration of all forms of public assistance and welfare operations in the county including general relief, old age assistance, aid to dependent children, aid to needy blind and child protection and welfare, except that all such local administration must conform to federal and state law and the rules and regulations as established by the state board."

It is plain from sections X and XI, Part I, that policies[2] which may be established, and rules and regulations which may be adopted, must conform to, and not be inconsistent with, positive provisions of the statute. A similar restriction is placed upon the state board. (Subdiv. (c), sec. III, Part I.) The power to establish policies and to promulgate rules and regulations does not empower the board to change the form of relief which the legislature has prescribed.

Respondent board also asserts that it was acting properly in[3] declining to issue warrants or checks, since the poor fund against which they would be drawn was exhausted. This does not furnish a reason for declining to issue warrants or checks (State ex rel. Hart v. Gleeson, 189 Wn. 292,64 P.2d 1023; State ex rel. Robbins v. Scofield, 184 Wn. 270,50 P.2d 1022; Ladd Bush v. Siegmund, 153 Or. 471,57 P.2d 395), unless they would entail tax levies prohibited by the Constitution (State ex rel. Boxberger v. Burns, 132 Neb. 31,270 N.W. 656). Here no such question arises as that in the BurnsCase, for under Chapter 82, when the available revenue of the county is exhausted, assistance shall be paid from the state welfare fund. (Subd. (b), sec. XI, Part I.)

It is further contended that mandamus is not the proper[4] remedy, because relator has not exhausted his remedy by appeal to the State Welfare Board. Section XII, Part I of the Act, provides:

"If an application for assistance under this Act is not acted upon by the county department within a reasonable time after the filing of the application, or is denied in whole or in part, or if any award of assistance is modified or cancelled under any provision of this Act, the applicant or recipient may appeal to the state department in the manner and form prescribed by the state department. The state department shall, upon receipt of such an appeal, give the applicant or recipient reasonable notice and opportunity for a fair hearing.

"The state department may also, upon its own motion, review any decision of a county department, and may consider any application upon which a decision has not been made by the county department within a reasonable time. The state department may make such additional investigation as it may deem necessary, and shall make such decision as to the granting of assistance and the amount of assistance to be granted the applicant as in its opinion is justified and in conformity with the provisions of this Act.

"In the case of the state department reviewing a county decision on its own motion, applicants or recipients affected by such decisions of the state department shall, upon request, be given reasonable notice and opportunity for a fair hearing by the state department.

"All decisions of the state department shall be final and shall be binding upon the county involved and shall be complied with by the county department."

Section IV of Part II provides: "All persons seeking public assistance from relief funds are hereby guaranteed the right of appeal to either the county public welfare board or the state public welfare department, or both. Individuals or committees with complaints or grievances shall be given a fair and impartial hearing by either the county board or the state department and it shall be required that due consideration shall be given all proven facts presented by such individuals or committees and the county board or the state department shall be required to relief [relieve?] such situations, if not otherwise prohibited by law and to the extent of funds available."

Here all the fact questions upon which relator's right to relief depended were decided by the county board in his favor. There was then no object or purpose in him taking an appeal to the state board. When the facts were found in his favor entitling him to relief, the law made it the mandatory duty of respondents to pay it by warrant or check. (State ex rel. Hart v.Gleeson, supra.) And failure to discharge the clear, legal duty gave rise to the right to proceed by mandamus. (Sec. 9848, Rev. Codes.) This court is committed to the rule that where an appeal is provided for by law to an administrative board or body from the ruling of an inferior administrative body, an appeal to such administrative body or board is not always a condition precedent to the right to resort to the courts for relief. (McBride v.School District, 88 Mont. 110, 290 P. 252.)

The suggestion is made that it is not within the power of the[5] state legislature to dictate to the counties how they shall spend their money, or how they shall care for their poor. The legislative control over counties is supreme, except in so far as it is restricted by the Constitution in express terms or by necessary implication. (Hersey v. Neilson, 47 Mont. 132,131 P. 30, Ann. Cas. 1914C, 963; Stange v. Esval, 67 Mont. 301,215 P. 807; Heckman v. Custer County, 70 Mont. 84,223 P. 916; Yellowstone Packing Provision Co. v. Hays,83 Mont. 1, 268 P. 555.) The difference between counties and municipal corporations in this respect was pointed out in State ex rel. City of Missoula v. Holmes, 100 Mont. 256, 47 P.2d 624, 100 A.L.R. 581.

Section 5 of Article X of the Constitution provides: "The[6] several counties of the state shall provide as may be prescribed by law for those inhabitants, who, by reason of age, infirmity or misfortune, may have claims upon the sympathy and aid of society." The words "as may be prescribed by law," as used in this section, mean as may be prescribed by Act of the legislative assembly.

While the duty to care for the poor is primarily an obligation of the counties, the state is free to offer co-operation and assistance. (Mills v. State Board of Equalization, 97 Mont. 13,33 P.2d 563; State ex rel. Normile v. Cooney,100 Mont. 391, 47 P.2d 637.) The legislature has the right to make provisions, binding upon the counties, as to how they shall care for their poor, even though this involves the right to dictate to the counties concerning expenditures of their own funds.

In 15 C.J. 581, it is stated: "The revenues of a county are not the property of the county in the sense in which the revenue of a private person or corporation is regarded. A county being a public corporation existing only for public purposes connected with the administration of a state government, its revenue is subject to the control of the legislature, and when the legislature directs the application of a revenue to a particular purpose, or its payment to any party, a duty is imposed and an obligation created on the county. So, too, where the legislature expressly designates a particular mode of raising funds for a certain purpose, all other modes are excluded." This rule is supported by so many authorities and is so well established that further citation of authorities would be superfluous. Among the more recent cases, however, in which the rule is announced and followed, may be cited the following: County of Stark v.County of Henry, 326 Ill. 525, 158 N.E. 116, 54 A.L.R. 777;Montgomery v. State, 228 Ala. 296, 153 So. 394; City ofFremont v. Dodge County, 130 Neb. 856, 266 N.W. 771; Newman v. Schlarb, 184 Wn. 147, 50 P.2d 36.

It is suggested that if counties may be compelled by the[7] legislature to pay relief claimants by warrant or check, then this amounts to a levy of taxes by the legislature for a county purpose, contrary to section 4 of Article XII of the Montana Constitution. This suggestion is without foundation. There is no direct tax attempted to be levied by the legislature. The fact that the county must expend money which, but for the enactment of Chapter 82, it would not expend, does not bring Chapter 82 in conflict with section 4 of Article XII. (State exrel. City of Missoula v. Holmes, supra.)

It is true that subdivision (b) of section XI of Part I of[8] Chapter 82 makes it the duty of the board of county commissioners to levy the six mills required by law for the poor fund. But the fair import of that entire paragraph is that it prescribes the six-mill levy as the minimum requirement in order to place the county in a situation to obtain financial aid from the state, if needed. The levy is not the result of coercion or duress on the part of the legislature, but rests upon the choice of the county that it might place itself in line to receive aid from the state in caring for its poor. The situation is on a parallel with action by the states in the form of legislative enactment induced in order to obtain federal grants, and these have been held to be without coercion. (Steward Machine Co. v.Davis, 301 U.S. 548, 57 Sup. Ct. 883, 81 L.Ed. 1279, 109 A.L.R. 1293.)

It is argued that, since Chapter 82 does not expressly repeal[9] sections 4521 et seq., Revised Codes, relating to the care of the poor, those sections are still in force and effect and place the exclusive supervision of the poor in the hands of the county commissioners. We recognize and approve of the rule that repeals by implication are not favored. However, if the last Act is in conflict with a prior law on the same subject, the last one controls and works an implied repeal, and this even though the legislature does not see fit to either expressly repeal it, or even to expressly state that the last Act repeals all Acts or parts of Acts in conflict with the latter.

A casual comparison of Chapter 82 with sections 4521 et seq. will demonstrate that at least some of the former are in conflict with the latter. We need not here point out these conflicts; it is sufficient for the disposition of this case to point out that by Chapter 82 the "entire and exclusive superintendence of the poor" is no longer vested in the board of county commissioners as it was under section 4521. The burden of caring for the poor and needy has assumed such proportion that the state and federal governments now co-operate with the counties in these matters.

Since, under the plain language of section V, Part II of Chapter 82, relief recipients shall "be [paid] by warrant or check," relator has the right to enforce the duty by mandamus. It[10] is our duty to declare the law as it is written, and not attempt to write what the court may consider a better and more workable law. Our province is to construe laws and declare their meaning. In the enactment of them we have neither duty nor responsibility.

The writ will issue as prayed for. This court finds that[11] respondents have defended this proceeding in good faith, and that relator is entitled to his costs and damages occasioned by the proceeding, including a reasonable attorney's fee. The court will retain jurisdiction of the proceeding to determine the amount of costs and damages, inclusive of attorney's fee, which may be included in a cost bill.

ASSOCIATE JUSTICES STEWART and ANDERSON concur.

MR. CHIEF JUSTICE SANDS, being prevented by illness from giving the questions presented proper consideration, takes no part in the above decision.