I dissent. The majority, in considering the matter before the court, has discussed the question under three headings: (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 the recipient a vested and liquidated claim against the general funds of the state; and (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?
In discussing the points involved, I shall consider first the third point of the majority opinion. As to it (considering this third point), the majority assume that payment of the full amount of the award to old age recipients until the funds available are exhausted would be contrary to the provisions of the Federal Welfare Act, (42 U.S.C.A., sec. 301 et seq.). In the oral argument much was made of that point, but without any specific showing that such would be the case. *Page 466
I can find nothing to show that such payment would be in conflict with any provision of the federal Act, nor that such payment would endanger the federal appropriation. That this is true is demonstrated by the answer of the respondents, and by their brief in which they admit that they are now receiving federal assistance on a monthly basis rather than on a quarterly basis, and that assistance has been awarded for only two of the months in the quarter, and that federal assistance for the month of June will depend on a showing by the State Board as to the amount of state funds available for that month. This demonstrates that payment in full of the award made is not contrary to the federal Act, nor will it have any effect upon the amount of money that the federal government will allocate for assistance within the state.
I agree with the majority opinion when it states: "It is equally clear that the respective county boards are the ones which in the first instance determine the actual cash need of each recipient. All decisions made by county boards are made reviewable by the State Board, and any modification, increase, or withdrawal of an award is based primarily on need." A casual reading of Part III of the Act, Chapter 82, Session Laws of 1937, will demonstrate conclusively that the award is based entirely on the need of the applicant and in the review and appeal provided for to the State Board where no award is made, where the award is insufficient or where the award is excessive, the question and the only question to be decided is the question of the need of the applicant. The Act makes the award binding on the County Board.
It is admitted by the respondent that the award made by the County Board is binding upon the State Board. That this is true is demonstrated by the fact that in the present instance the State Board did not of itself directly issue an order cutting all old age assistance awards, nor did it merely make a twenty per cent. reduction from the original award by sending a check for $25.50 instead of $28. Instead, by the issuance of the two bulletins attached to the pleadings, they ordered the county boards to make the reduction. *Page 467
To circumvent this fact that the award of the County Board is binding on the State Board, as I have stated above, the board says to this court that it did not make the cut, but that the respondent board of county commissioners changed the award. The answer of the County Board and the exhibits demonstrate conclusively that the change in the award to the relatrix was made by the State Board when it issued its bulletins that if the cut were not made no old age assistance funds would be available for the counties at all. The respondent State Board acted entirely without its authority as given it by the Act when the two bulletins were issued, and so long as there was money sufficient to pay the award made to the relatrix, the only power of the State Board was to pay the award in full as provided by the Act.
It is true that the State Board is given some power to make policy. However, nowhere in the Act does it appear that this power to determine policies includes the power to order the various boards of county commissioners to reduce the awards because of the failure of the legislature to appropriate sufficient funds to pay the full amount of the awards throughout the entire quarter.
The provisions of the Act as to method of determining the amount of awards, appeal and review of the determination are specific in the extreme. It was for the purpose of protecting the interests of persons qualified under the Act and to assure them the maximum of security that the legislature was so specific in this. The policy-making and supervisory power given the board and the administrator are the usual ones given to any administrative board or officer to carry out the purpose of an Act. This power is limited to the determination of the means for carrying out efficiently the will of the legislature. To broaden this power as has been done by the majority will be to substitute the will of an administrative board and administrator for the expressed will of the legislature. To insure against such unwarranted assumption of power by the board as is countenanced *Page 468 here, the legislature included section 19 of Part I of the Act. That section is ignored entirely by the majority.
"The checks in payment of public assistance shall be issued in the full approved amount for each eligible approved grantee, and the original monthly payment shall be from the state public welfare accounts." The legislature could not have made its intention more clear than by this section and by section 3 of Part III of the Act. It specifically excludes from the discretion of the State Board and from its power to determine policies the right to pay a sum less than the award of the County Board.
Within recent months the question of the power of an administrative board under welfare Acts similar to ours has been construed by three courts. The most recent case is Welch v.State Board, (Ariz.) 87 P.2d 109, 112. In that case the plaintiff was employed as a social service worker by the County Board under an Act similar to ours. Without notice or hearing as in the Act provided the State Board ordered the County Board to dismiss the plaintiff, basing their order upon the discretionary and supervisory powers given them by the Arizona Act. The grant of supervision over the county boards contained in the Arizona Act is similar to that contained in our Act. In upholding the contention of the plaintiff, the court said: "While it is true that the county boards are under the direct supervision and control of the State Board, nevertheless that control must be exercised by the State Board in accordance with the manner set forth in the Act. It does not appear from the statement of facts that plaintiff's removal was made in this manner, and we think, if this be the case, it was done without authority of law."
The supreme court of the state of Illinois had occasion in a recent case, People ex rel. Freeman v. Department of PublicWelfare, 368 Ill. 505, 14 N.E.2d 642, 643, to pass upon the power of the department of public welfare under an Act similar to ours where an attempt was made to justify certain acts of the department under the discretionary and supervisory power granted to the department: "The General Assembly has placed *Page 469 the administration of the Old Age Assistance Act in the Department of Public Welfare and the county departments. Power to make the law or a discretion as to what the law shall be was not delegated. The authority or discretion granted to the administrative agencies as to the execution of the statute, it follows, must be exercised under and conformably to the law itself. Aid shall be given, the Old Age Assistance Act commands, to any person who meets the requirements set out in the 9 paragraphs of section 2 as amended, Ill. Rev. Stat. 1937, c. 23, sec. 411, pars. (a-i). The determination of whether an applicant meets certain of these requirements is a matter which involves the exercise of judgment and discretion. Other requirements, however, are specific in the extreme, and do not involve administrative judgment and discretion."
The supreme court of the state of Washington in Conant v.State, (Wash.) 84 P.2d 378, 381, was faced with the same type of argument as that used in this case, and that argument is apparently what influenced the majority to hold as it has here. The Washington Act provided that whenever persons over 65 years of age did not have sufficient independent means of their own for their adequate support, and it was so found by the local welfare board, they were entitled to benefits under the old age assistance Act. The facts in the Conant Case were that the applicant had relatives who were willing and able to support her. It was argued there, as here, that under their supervisory and policy declaring power the state welfare board could deny to her the benefits of the Act, and it was strenuously urged that a decision allowing her recovery would have a serious effect on the financial situation of the state. In disposing of this argument, the court said: "The naive argument that the cost to the state in view of the fact that on January 1, 1937, there were approximately 123,000 persons more than sixty-five years old in this state, would have a serious effect on the fiscal problems of the state should be addressed to the legislature and not to the court."
The majority opinion says that the court should not interfere with the discretion of the administrator and that it was not the *Page 470 province of the court to declare policies. I feel that the majority opinions do just that. If, in ordering the cut, the administrator and board were acting within their policy-making province, the court should not interfere; but here the administrator and board were acting entirely outside the scope of their authority. It may be true that a correct public policy would call for the apportionment of the funds available over the three month period. However, as I have pointed out, the Act nowhere, either in the federal or state Act, gives the board or the administrator the power to do this. The majority opinion, in overlooking some provisions of the Act and in upholding the board in its action, is determining public policy and is acting as a legislative body and not as a judicial body bound by the provisions of the Acts of the legislature.
The relatrix urges that it was the duty of the State Board to apply to the State Board of Examiners as provided in Chapter 40, Session Laws 1937, for authority to issue warrants as in that Act provided when the funds available were exhausted. In the majority opinion in discussing this point by way of dictum it is stated that this is not such an unforeseen or unanticipated emergency as contemplated by that chapter. In so holding the majority recites that a budget was presented to the legislature calling for a sum considerably in excess of the amount appropriated, and that the failure of the legislature to appropriate the amount requested conclusively demonstrates that the legislature realized that the sum appropriated would be insufficient to pay the full amount of the old age assistance awards. I am unable to agree with this view. The legislature specifically vests in the State Board of Examiners, by Chapter 40, the discretion to determine whether or not an emergency under the terms of the chapter exists. It is probably true that this situation was foreseen by the administrator and the State Board. However, the legislature contemplated that in order for Chapter 40 to apply the situation must have been unanticipated or unforeseen by the legislature and not by any administrative board.
I am not disposed to interfere in advance with the discretion of the State Board of Examiners, and until that board has exercised *Page 471 its discretion upon proper application I cannot say that this is or is not an unforeseen or unanticipated situation as contemplated by the Act. That would depend upon the showing made to the Board of Examiners. However, it would seem upon the record here and from the briefs that this is a situation contemplated by Chapter 40 and that the administrator and the State Board should have applied to the State Board of Examiners, when it became apparent that there were not sufficient funds to pay the awards, as in the Act provided, or at least that they should make such application when the funds are exhausted. Favorable action by the Examiners upon such an application would avert the dire consequences predicted in the specially concurring opinion of the Chief Justice.
The majority opinion discusses at some length the second point raised in the opinion, "Does the Public Welfare Act give a recipient a vested and liquidated claim against the general fund of the state?" To my mind that question is not before us under the petition of the relatrix, and it properly cannot be determined here. It is admitted by the State Board that there are funds available to pay the original award for the month of April. The question can only properly be raised when the funds are exhausted so that there is no money available in the fund to pay the award. It may be noted in passing that the award is not a fixed, inflexible amount, but is subject to change in accordance with the terms of the Act. The change made in the amount of the award to the relatrix by the respondent County Board upon the order of the State Board was improper and void. The relatrix was entitled to the amount originally awarded her. A writ should issue commanding the respondent State Board to pay to the relatrix the difference between the original award and the amount paid her for the month of April, the difference being $2.50.