State ex rel. Wilson v. Weir

• Decision Date: 07 May 1938
• Docket Number: 7810.
• Parties: STATE ex rel. WILSON v. WEIR et al.
• Court: Montana Supreme Court

79 P.2d 305

106 Mont. 526

STATE ex rel. WILSON v. WEIR et al.

No. 7810.

Supreme Court of Montana

May 7, 1938

Original application for a writ of mandate by the State of Montana, on the relation of James E. Wilson, against Robert Weir and others, as the Board of County Commissioners of Cascade County and ex officio County Welfare Board of Cascade County to compel respondents to pay to relator, by warrant or check relief awarded to him.

Writ issued.

MORRIS J., dissenting.

William H. Clarke, of Helena, for relator.

Phil G. Greenan, of Great Falls and John G. Brown, of Helena, for respondents.

Clarence Hanley and Mark Derr, Asst. Attys. Gen., both of Helena, and E. J. Stromnes, of Great Falls, amicus curiae.

ANGSTMAN Justice.

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 1937. The facts from which the controversy arose are these:

Relator, a citizen of the United States and a resident of Cascade county for more than four years, applied for general relief under chapter 82. He was granted assistance under part 2 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 5 of part 2 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 12, part 2, 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 5, part 2. 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 10 of part 1 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 11 of part 1 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 10 and 11, part 1, that policies 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. Subdivision (c), § 3, part 1. 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 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 Wash. 292, 64 P.2d 1023; State ex rel. Robbins v. Scofield, 184 Wash. 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 Burns Case, for under chapter 82, when the available revenue of the county is exhausted, assistance shall be paid from the state welfare fund. Subdivision (b) § 11, part 1.

It is further contended that Mandamus is not the proper remedy, because relator has not exhausted his remedy by appeal to the State Welfare Board. Section 12, part 1 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 4 of part 2 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. Section 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 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. Nelson, 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 10 of the Constitution provides: "The 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...