State ex rel. Dean v. Brandjord

• Decision Date: 08 June 1939
• Docket Number: 7967.
• Parties: STATE ex rel. DEAN v. BRANDJORD et al.
• Court: Montana Supreme Court

92 P.2d 273

108 Mont. 447

STATE ex rel. DEAN v. BRANDJORD et al.

No. 7967.

Supreme Court of Montana

June 8, 1939

Rehearing Denied July 12, 1939.

Mandamus proceeding by the State of Montana, on the relation of Mary J. Dean, against I. M. Brandjord, as administrator and executive officer of the State Department of Public Welfare of the State of Montana, and others, to compel payment of the full amount of monthly old age assistance originally granted to relatrix.

Writ denied.

ERICKSON and ANGSTMAN, JJ., dissenting.

Philip O'Donnell and Roy P. Leahy, both of Butte, for relatrix.

Clarance Hanley, Asst. Atty. Gen., and S.C. Ford and Sam Goza, Jr. both of Helena, for respondents.

STEWART Justice.

In March, 1937, relatrix qualified for old age assistance under the state plan set forth in Chapter 82, Session Laws of 1937 and was granted a monthly award of $28 by the county board of Silver Bow county for the month of March, and the same was paid for that and subsequent months until the award was reduced to $25.50 for the month of April, 1939, pursuant to a general plan of reduction inaugurated by the State Board of Public Welfare addressed to all counties. This proceeding in mandamus seeks to compel the Silver Bow County Board of Public Welfare to restore to her the total amount of monthly assistance originally granted her in the sum of $28, and to compel the state board to pay to her the difference between the March and April awards in the sum of $2.50. Numerous other demands for relief are contained in the petition disposal of which will be dependent upon the outcome of those just set forth.

Relatrix takes the position that an award once having been given her on the basis of need compatible with decency and health, as required by the Act, cannot subsequently be reduced, modified or vacated except as her needs, after proper investigation, show that it should be changed. She contends that any change or modification made upon any other basis, or for any other reason, is contrary to the legislative standard and criterion of need set up by the Act, and constitutes legislation on the part of the administrative boards.

Respondent county board admits in its answer that the reduction of the award was made in order to comply with the general bulletin sent out by the state board ordering the reductions, and that it complied because it feared that no payments would be made to the county for old age assistance unless it made the reductions directed. It admits that the amount to be paid relatrix for April as certified by it to the state board was arbitrarily fixed in conformity with the directions contained in the bulletins from the state board without regard to her needs or ability to maintain herself in decency and health.

Respondent state board answered substantially as follows in justification of its action in directing the reductions: That on the 10th of March, 1939, it determined that the moneys available and to be made available for the payment of old age assistance for the quarter beginning April 1, 1939 were insufficient and would be insufficient to make grants to all persons in the state eligible to receive such assistance on the basis of the grants made for the month of March, 1939; that it passed a resolution setting forth the fact that the legislature had only appropriated the sum of $218,000 for old age assistance for the interim period terminating June 30th, whereas the state department had recognized need for and requested $338,000 for that period; that due to the condition of county poor funds and other county funds, many of the counties were unable to reimburse the state department in full for their current shares of old age assistance; that no substantial amount of funds would be received from counties for past reimbursements due the state department during the months of April, May and June from the funding bonds and special tax levies authorized by Chapter 188, Session Laws of 1939; and that careful calculations based on these facts and circumstances showed the absolute necessity to make a reduction in the amount of old age assistance payments for the months of April, May and June of not less than 33 1/3% of these payments as made for March.

Reductions were directed accordingly by all counties, but subsequently they were ordered changed to 20%, and this percentage to obtain only for the months of April and May. The possibility of obtaining other funds for June made it impossible for the board to determine the percentage of reduction necessary for that month. This resolution was incorporated in the general bulletins ordering the reductions, and containing alternative methods for the guidance of the county boards in arriving at the necessary reductions.

The issues thus tendered present for determination the ultimate question as to whether the State Board of Public Welfare is authorized and directed to administer old age assistance within the limits of the funds appropriated by the legislature over a given period of time, or whether it is bound by legislative declaration to pay to all qualified recipients fixed amounts so long as the funds may last, based solely on needs previously found regardless of the amount of money expressly appropriated by the legislature to accomplish that end.

Solution of the question involves the consideration of several ancillary propositions, namely: (1) What funds are available to the state board for old age assistance other than those expressly appropriated? (2) Does the Public Welfare Act give a recipient a vested and liquidated claim against the general fund of the state? (3) Does the Act clothe the state board with discretionary power to administer old age assistance in accordance with need, giving due regard to the period for which the specific appropriation is intended to cover? We shall dispose of the questions in the order given.

It is first urged by relatrix that the state board knew, or should have known, on or about March 1st that there was not sufficient money available to pay old age assistance for April, May and June on the same basis as that paid for March; that it was, and now is, the legal duty of the board to make written application to the State Board of Examiners setting forth that an unanticipated emergency has arisen; that the funds and appropriations available to the Public Welfare Board for the operation and administration of the Act are insufficient for that purpose, and that therefore the Board of Examiners should make an order authorizing an expenditure to meet the emergency, to the end that old age assistance might continue to be furnished as stipulated in the Act.

Authorization for such action by the Board of Examiners, on proper showing made, must obviously come from Chapter 40, Session Laws of 1937. Respondents challenge the constitutionality of that Act, but we shall not pass on that question, as we do not deem it necessary to a decision in this case. Yale Oil Corporation v. Plentywood Farmers' Oil Co., 98 Mont. 582, 41 P.2d 10, and cases therein cited.

The answer to the contention of relatrix is that no unforeseen or unanticipated emergency has arisen to justify any such action by the State Board of Examiners. As a matter of fact, the unanticipated emergency alleged by relatrix to exist consists of a factual situation clearly foreseen and anticipated by the state board at the time it prepared and submitted its budget to the 1939 legislature and was set forth in its request for appropriations for old age assistance, and for other funds necessary to administer the Act. As evidence that full information of the financial requirements of the state board was given the legislature, we quote the following statement from its answer with regard to the budget: "That said budget estimates were based upon expenditures made for each of said items for the two-year period ending March 1, 1939, and upon the experience of the department, and a careful study of all factors, such as unemployment conditions, crop and industrial conditions, etc., and taking into consideration the increasing demands upon the department in each of said items month by month during said period, and the increasing inability of the several counties of the state to make reimbursements to the State Department, as provided by law; that said estimates were and are in the honest opinion of the department fair and conservative estimates, and are and were honestly believed to be required and necessary for the operation of the department for said periods."

In the light of these factual allegations we must construe the question of unforeseen and unanticipated emergency. It does not seem reasonable to believe that the legislature in enacting Chapter 40, intended that the same facts and estimates presented to a legislature in session and upon which it refused to act to the full extent requested, could possibly form the basis of the unforeseen and unanticipated emergency mentioned in the chapter as necessary to invoke action on the part of the Board of Examiners. Clearly, under the showing made, no additional funds could be made available by means of Chapter 40 on the ground of unforeseen and unanticipated emergency. We deem further discussion of this phase of the proceeding unnecessary.

Chapter 40 having demonstratively failed as a possible medium for raising additional funds, we now turn to the Public Welfare Act itself to determine whether the legislature authorized or directed that funds other than those specifically appropriated could be withdrawn from the state treasury.

Article V, section 34, of the state Constitution provides: "No money shall be paid out of the treasury except upon appropriations made by law, and on warrant drawn by the proper officer in pursuance thereof, except...