State ex rel. Eckroth v. Borge

• Decision Date: 16 January 1939
• Docket Number: No. 6589.,6589.
• Citation: 283 N.W. 521,69 N.D. 1
• Parties: STATE ex rel. ECKROTH et al. v. BORGE et al.
• Court: North Dakota Supreme Court

69 N.D. 1

283 N.W. 521

STATE ex rel.ECKROTH et al.

v.BORGE et al.

No. 6589.

Supreme Court of North Dakota.

Jan. 16, 1939.

Syllabus by the Court.

1. When the people enact initiated measures they perform legislative functions and the constitutionality of their acts is determined under the same general principles as those applicable to the acts of the legislative assembly.

2. Where there are two possible interpretations of a statute, by one of which a statute would be unconstitutional and by the other it would be valid, the court will adopt the construction which will uphold it.

3. Every legislative enactment is presumed to be constitutional; and this presumption is conclusive unless it is clearly shown that the enactment is prohibited by the Constitution of the State or of the United States. State ex rel. Sathre v. Board of University and School Lands, 65 N.D. 687, 262 N.W. 60.

4. The courts will endeavor to so construe a statute as to effectuate the legislative purpose which prompted its enactment.

5. Chapter 211, Session Laws N.D.1937, as amended by the initiated measure adopted November 8, 1938, known as the Old Age Assistance Act, is not a pension act.

6. The Old Age Assistance Act, as amended, is examined and is held to establish a minimum standard by which is measured a reasonable subsistence compatible with decency and health.

7. The term income as used in the Old Age Assistance Act includes all sources of livelihood.

8. The legislative department of the state has power to fix a standard minimum income which is necessary in order to furnish the needy aged with a reasonable subsistence compatible with decency and health.

9. The minimum standards provided by the Old Age Assistance Act are not so unreasonable as to transcend the legislative power to fix a minimum standard of subsistence for the needy aged compatible with decency and health.

10. The Old Age Assistance Act does not contravene Section 185 of the State Constitution which prohibits donations except for the reasonable support of the poor.

11. Parties seeking mandatory relief must show a clear legal right to the performance of the act or acts which they seek to coerce.

Appeal from District Court, Morton County; H. L. Berry, Judge.

Mandamus proceeding by the State of North Dakota, on the relation of George Eckroth and Margaretha Eckroth, against Carl Borge and others, members of the County Welfare Board of Morton County, North Dakota, and Frank Milhollan and others, members of the Public Welfare Board of North Dakota, to compel payment to petitioners from the North Dakota Old Age Assistance Fund. From an adverse judgment, the plaintiffs appeal.

Affirmed.

Robert Birdzell, of Bismarck, for appellants.

James M. Hanley, Jr., of Mandan, and John E. Williams, of Bismarck, for respondents.

Alvin C. Strutz, Atty.Gen., and William Langer, Governor, of Bismarck, amici curiæ.

MORRIS, Judge.

The plaintiffs, George Eckroth and Margaretha Eckroth, husband and wife, petitioned the District Court of Morton County for a writ of mandamus directing the members of the Public Welfare Board of North Dakota to grant and pay to each of the petitioners from the North Dakota Old Age Assistance Fund an amount not less than $30 per month, under the provisions of Chapter 211, Session Laws, N.D.1937, as amended by the initiated measure approved at the general election held on November 8, 1938. The trial court dismissed the petition and the plaintiffs appeal. The determination of the controversy involves the consideration of Chapter 211, as amended, which is known as the Old Age Assistance Act.

The petition alleges that the plaintiffs are qualified recipients of assistance under the Old Age Assistance Act, and that prior to December 8, 1938, the effective date of the amendment, George Eckroth was receiving from the North Dakota Old Age Assistance Fund the sum of $20 per month, and Margaretha Eckroth was receiving the sum of $17 per month; that they have no other money income or available sources of such income; that they own no marketable, personal or real property other than necessary clothing and household goods, and a dwelling worth $2000 which they occupy as a home; that they are entitled to and have applied for increases in the amount of assistance to at least $30 per month each.

Chapter 211, Session Laws, N.D.1937, is in part entitled, “An Act to promote the public welfare by providing for public assistance to aged persons in need”.

Section 1 contains definitions of terms used in the Act including, “‘assistance’ means money payments to aged persons in need as provided in this Act”.

Section 2 provides for eligibility, and says:

“Eligibility for Assistance to the Needy Aged.] Assistance shall be granted under this Act to any person who:

(a) Is a citizen of the United States;

(b) Has attained the age of sixty-five years, provided, however, that if at any time the laws of the United States shall authorize funds for old age assistance granted by the United States to the State to be paid to a person less than sixty-five years of age, then the State Agency shall have authority to reduce the age of an applicant for old age assistance to such lesser age;

(c) Has resided in North Dakota for at least five years during the nine years immediately preceding the application for old age assistance, and has resided therein continuously for one year immediately preceding application;

(d) Has not sufficient income or other resources to provide a reasonable subsistence compatible with decency and health;

(e) Is not an inmate of, or being maintained by, any municipal, State or National institution at the time of receiving assistance;

(f) Has no child or other relative of sufficient financial ability to support the applicant and responsible under the law for the support of the applicant;

(g) Has not at any time before or after making application for old age assistance made an assignment or transfer of property for the purpose of rendering himself or herself eligible for old age assistance under this plan.”

Section 3 deals with the amount of assistance. The original section reads as follows: “Amount of Assistance.] The amount of assistance which any person shall receive shall be determined with due regard to the resources and necessary expenditures of the individual and the conditions existing in each case and in accordance with such rules, regulations and directions as the State Agency may find it necessary to prescribe. The amount of assistance shall be sufficient, when added to all other income and support of the recipient, to provide such person with a reasonable subsistence compatible with decency and health, but shall not exceed a maximum of Thirty Dollars ($30.00) per month. Provided, however, that if at any time the amounts received or to be received by this State from the United States for old age assistance shall be more than $15.00 per month for each person entitled to the full monthly compensation of $30 per month under this Act, then the State Agency shall have authority to increase such maximum amount of old age assistance in an amount corresponding to the increase that such increase in the amount received from the Federal Government will permit.”

Section 3 was amended and re-enacted by the adoption of an initiated measure, the full text and title of which is as follows:

“An Act amending and re-enacting Section 3 of Chapter 211 of the Session Laws of North Dakota for 1937, and providing that the amount of assistance which any person shall receive shall be sufficient when added to all other income of recipient to provide such person with a reasonable subsistence compatible with decency and health but shall not be less than a minimum of forty dollars per month except that it shall not be less than a minimum of thirty dollars per month for each recipient where there is more than one recipient in a family and each county shall reimburse the state agency for fifteen per cent of the amount expended for such assistance in such county in excess of the amount provided by the Federal government and repealing all Acts and parts of Acts in conflict herewith.

Be it enacted by the People of the State of North Dakota:

Section 3 of Chapter 211 of the Session Laws of North Dakota for 1937, is hereby amended and re-enacted to read as follows:

Section 3. The amount of Assistance. The amount of assistance which any person shall receive shall be determined with due regard to the resources and necessary expenditures of the individual and the conditions existing in each case and in accordance with such rules, regulations and directions as the State Agency may find it necessary to prescribe. The amount of assistance shall be sufficient when added to all other income of the recipient to provide such person with a reasonable subsistence compatible with decency and health but shall not be less than a minimum of forty dollars per month except that it shall not be less than a minimum of thirty dollars per month for each recipient where there is more than one recipient in a family, and each County shall reimburse the State Agency for fifteen per cent of the amount expended for such assistance in such County in excess of the amount provided by the Federal Government. Provided, that if at any time the amount received or to be received by this state from the United States for Old Age Assistance shall be more than fifteen dollars per month for each person entitled to the full monthly compensation of forty dollars per month under this Act, then the State Agency shall have authority to increase such minimum amount of Old Age Assistance in an amount corresponding to the increase, that such increase in the amount received from the Federal Government will permit and repealing all acts or parts of acts in conflict herewith.”

Section 3 is the only section of the Old Age Assistance Act mentioned in the initiated measure.

Section 5 of the original Act deals with applications for assistance and provides,...