I dissent. A more complete statement of the facts than is given in the majority opinion I deem essential to a comprehensive grasp of the questions involved. *Page 536
Petition for a writ of mandate to compel the board of county commissioners of Cascade county to pay relief awarded relator by warrant or check. The affidavit for the writ recites section V, Part II of Chapter 82, Laws of 1937, which provides as follows: "All relief disbursements by the county or state departments to relief recipients shall be by warrant or checks 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."
It is then alleged that the relator is a citizen of the United States, a resident of Cascade county, and in need of food, shelter, and clothing; that he is not in need of institutional care because of any physical or mental affliction; that there is no evidence of his dissipation of relief allowance; that he applied to the County Welfare Board, his case was investigated, and his application for relief approved as provided by law; that he requested relief be granted by warrant or cash, which the county board refused, and instead placed affiant in County Poor House No. 2, and the board has repeatedly denied his requests for relief by cash or warrant, and that such refusal will be persisted in unless an order of this court compels the board to grant relator the relief in the manner prayed for; that application has been made to this court for the reason that the action of the county board has resulted in relator's "great damage and injury" and "he is destitute and in acute distress and in need of prompt and immediate relief"; that if the action were started in the district court, relator would have no means of support "pending the hearing of a long drawn out case, nor funds to prosecute such an action," and that he has no speedy and adequate remedy at law.
An alternative writ of mandate was issued as prayed for, returnable April 2, 1938, at which time relator and the county board appeared by counsel. The department of the Attorney General was also represented, and other parties were granted *Page 537 the right to intervene. Extended arguments were heard, the board filed its answer, briefs were submitted, and the matter was taken under advisement by the court.
The answer of the board admits all of relator's allegations of fact, but denies his conclusions as to his rights being invaded, and on the contrary alleges that the board, acting within its discretion, denied relator's request for relief in cash or its equivalent for the reasons: That the county funds out of which relief is paid are depleted, and relator was adequately cared for by the means provided by the county for indigent persons resident in the county; that the regular budget of $76,980 produced from taxation by the county, and an emergency fund of $35,000, and $53,000 obtained from the State Department of Public Welfare, had been exhausted and the county had no funds from which relief in cash or by warrant could be supplied; that the county board had provided a residence where single persons were furnished with the necessaries of life, and that relator was by such means being supplied with more adequate relief than if he were paid $23.50 in cash, the amount fixed by the state board in such cases; that inspection by the county and state officials had shown the place where relator was being cared for to be clean and appropriate for such purposes. The board prays that the writ be denied and the proceeding dismissed.
No question arises here about the right of the relator to relief from Cascade county. He applied for relief, it was awarded to and accepted by him, and he admits such to be the facts, but contends that the relief supplied is not such as he is entitled to by law. To determine the merits of this contention a number of other questions must be considered.
Counsel for the department of the Attorney General and counsel for the intervener in the main support the contention of the relator that Chapter 82 of the Laws of 1937 repeals Chapter 347, comprising sections 4521 to 4541, inclusive, of the Revised Codes, relating to the poor, by implication. Statutes are removed from the statute books in this state in three ways: (1) By express repeal by the legislature; (2) by this court holding *Page 538 a statute to be in conflict with the Constitution, and therefore void; (3) by a decision of this court holding a later enactment to be in irreconcilable conflict with on older Act and the latter being repealed by implication.
The power to enact laws and the power to expressly repeal them is vested exclusively in the legislative department; the power to declare an Act of the legislature unconstitutional, or to declare an Act repealed by implication, is vested solely in the courts. We are here concerned with repeal by implication only. The exercise of this power by the courts, along with the exercise of the court's power of statutory construction, has given rise to the expression "judicial legislation," which implies, of course, that the courts have encroached upon the powers of the legislative department.
The power of implied repeal is a dangerous power that must be exercised with the utmost caution. The necessity for its exercise arises by reason of the fact that courts must determine what the law is. (Sec. 10699, Rev. Codes.) If, after diligent research, an Act of the legislature is found to be in conflict with the Constitution, the courts must hold the Act void. Likewise, if an older Act of the legislature is found to be in irreconcilable conflict with a later Act, the old, if the new be constitutional, must be held to have been repealed by reason of the implied intention of the legislature.
This court has repeatedly held that repeal by implication is not favored. (State ex rel. Normile v. Cooney, 100 Mont. 391,47 P.2d 637; Box v. Duncan, 98 Mont. 216,36 P.2d 986; State ex rel. Nagle v. Leader Co., 97 Mont. 586, 37 P.2d 561; State ex rel. Malott v. Board of County Commrs.,89 Mont. 37, 296 P. 1; Nichols v. School District, 87 Mont. 181,287 P. 624; London Guaranty Co. v. Industrial Acc.Board, 82 Mont. 304, 266 P. 1103; Ex parte Naegele, 70 Mont. 129,224 P. 269.) But if two legislative enactments relating to the same subject matter are in conflict and cannot be harmonized, the Act last enacted controls. (State v. Miller, 69 Mont. 1,220 P. 97.) And under such circumstances the courts should not hesitate to declare a repeal by implication. (Ex parte Naegele, *Page 539 supra.) However, before a statute will be held repealed by implication, there must be a plain and irreconcilable conflict between the old and the new. (Box v. Duncan, supra.)
On careful analysis I think that the alleged conflict between Chapter 82 of the 1937 Laws, and Chapter 347, Revised Codes, is apparent only, and that the two can be reconciled, and it is the plain duty of the court to reconcile them, if possible. At the outset it may be conceded that some of the needy and afflicted whose care has heretofore been assumed by the counties have been taken over by the state under the obligations imposed upon the state by section 1 of Article X of the Constitution, and to that extent the provisions of Chapter 347, Revised Codes, have been rendered inoperative.
In construing a statute for the purpose of reconciling it with another, the constitutionality of neither being in question, legislative intention controls, and such intention is determined by the purpose of the particular Act. (Sec. 10520, Rev. Codes;McNair v. School Dist. No. 1, Cascade County, 87 Mont. 423,288 P. 188, 69 A.L.R. 866.) The court must construe a statute so as to effectuate the purpose of the legislature. (Barney v.Board of Railroad Commrs., 93 Mont. 115, 17 P.2d 82, and many others.) What was the purpose of the legislature in enacting Chapter 82?
First, it must be kept in mind that many of the features of Chapter 82 were adopted to conform to the social security legislation of the federal government. (42 U.S.C.A., secs. 301 et seq.) The provisions of the Acts of both the federal and state governments were, in a large measure and in so far as they relate to the care of the poor, enacted to meet the grave emergency of unemployment. These features of the legislation were never intended to be permanent, but to maintain only so long as the necessity of caring for the idle remained; the unemployed had become such a horde that the local agencies of the several states — the counties — that branch of state governments to which care of the poor and needy had theretofore universally been delegated, were financially unable successfully to cope with the situation. Many of the states were either unable or unwilling *Page 540 to assist the counties, and agitation in Congress led to grants of federal funds; this method, along with the agitation for old age pensions, led to the formation of the Social Security Acts. In order for states to share in any distribution of the federal funds for such purposes, the states were required to enact certain legislation outlined by the federal officials.
Chapter 82 is the answer to the federal requirements. This Chapter repealed the Montana Relief Commission Act, Laws 1935, Chapter 109, and other early attempts theretofore made by our legislature to meet such requirements. I think no reasonable mind will disagree with the conclusion that some of the features of Chapter 82 were incorporated in that Act for the purpose of meeting an emergency, while others are clearly meant to be permanent; assistance awarded counties to aid in the care of the local poor is clearly an emergency feature. And again, no reasonable mind will contend that either the state or federal government intends to continue distributing funds to the counties when the time arrives when the counties are able to reassume the obligation of caring for their needy.
On the other hand, the title to Chapter 82 clearly expresses the intention that the state shall assume, in full, certain powers and duties relating to certain existing institutions in compliance with that obligation imposed upon the state by section 1 of Article X of the Constitution, to establish institutions "for the benefit of the insane, blind, deaf and mute, soldiers' home, and such other institutions as the public good may require, * * * supported by the state in such a manner as may be prescribed by law." It is clear that these institutions are made affairs of the state, to be established and maintained at state expense, and with which the counties have nothing to do. It therefore appears clear that Chapter 82 deals with some matters strictly within the province of the state, and others that come within the combined duties of the state and the counties.
It should next be remembered that the Act of 1935, creating the Montana Relief Commission, set up in each county where aid was required an independent state agency to distribute relief funds appropriated by the state from state funds, and such *Page 541 funds as were awarded to the state by the federal government for such purposes, and at the same time the several counties carried on such care of the poor as they were able to provide for without any interference by the Montana Relief Commission's agencies in any county. The two sources of relief were never in conflict; such relief as the counties could supply was provided in the usual way, and the state and federal funds distributed in any county were regarded as a distinct and independent source of relief with which the county authorities had nothing to do.
Such being the case, is it not the most reasonable and wisest course to presume that when the legislature enacted Chapter 82, as a substitute for the old Act, and made the county board ex-officio the County Welfare Board, the legislative intent was to utilize the board of county commissioners in place of the separate county relief agency provided under the old Act as a matter of economy in the distribution of state and federal funds in the several counties? The conclusion would appear inescapable. All the powers of the state board, provided by Chapter 82, over the county board exercised in the distribution of state and federal funds may be operated freely and are fully satisfied by leaving the distribution of relief funds produced from county taxation to the county.
It is of little importance, speaking generally, as to how relief is distributed to the relator, nor is it particularly important as to whether Chapter 347 of the Revised Codes be repealed or not, so long as explicit provisions of our Constitution are not ruthlessly swept aside in order to accomplish such purposes, and the home-rule powers of counties destroyed by a state board with dominant powers in local affairs.
It borders on the absurd to contend that section 4, Article XII, which prohibits the legislature from levying taxes upon the property or inhabitants of counties for county purposes, is not overridden by Chapter 82, if that Chapter be construed as directing that counties shall levy six mills and a poll tax to be expended under the supervision of a state board. The discretionary power of the county board in local affairs which section *Page 542 4 of Article XII was intended to protect, and which this court has never presumed to question unless abused, would be nullified if the construction of Chapter 82 contended for be accepted. It is by just such subtle distinctions that the wholesome restraining provisions of the Constitution are evaded and broken down.
Chapter 82 explicitly and with more than usual particularity repealed the following provisions of the 1935 Revised Codes: Sections 325 to 335, inclusive, relating to the creation of the Board of Charities and Reform; sections 335.1 to 335.45, inclusive, relating to the creation of the Montana Relief Commission; sections 10480 to 10487, inclusive, providing for Dependent Children and Mothers' Pensions; sections 2511 to 2514, inclusive, relating to Indigent Crippled Children and the Orthopedic Commission; sections 336 to 347, inclusive, relative to the Bureau of Child and Animal Protection, but made no reference to Chapter 347, relating to the poor.
The legislature is presumed to know the law — to know what Acts are on the statute books and in full force and effect, and I think this presumption has particular force here, for the reason that Chapter 82 deals with subjects closely related to relief and care of the poor, and is particularly explicit in enumerating kindred Acts which it repeals. I am confirmed in this conclusion by a review of pertinent constitutional provisions and statutes relating to the subjects here under consideration. Section 5 of Article X 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." This provision was, it would appear, adopted as a reaffirmation of old territorial laws.
Section 1 of Chapter 50 of the old Bannack Statutes has the same wording as section 4521 of the present Codes, and is as follows: "The board of county commissioners are vested with entire and exclusive superintendence of the poor." This section first found in the old statutes was, along with others on the subject of the poor, later re-enacted as a part of the "Codified" *Page 543 Statutes of 1871; again re-enacted as part of the Revised Statutes of 1879; again incorporated in the Compiled Statutes of 1887, and affirmed in substance by section 5 of Article X, quoted above. Upon the adoption of the Constitution, the legislature, in response to the solemn mandate of that instrument, again re-enacted old section 1 of Chapter 50 of the Bannack Statutes, and its wisdom has received the approval of all our lawmaking bodies throughout all our legislative history, and is now brought in question by the contention that it has been repealed by implication. If the legislative assembly of 1937 intended to effect its repeal by Chapter 82, it would, I think, have expressed that intention by plain language and relieved the court of the responsibility of exercising a power which we have repeatedly said is not favored.
Another provision of the Constitution strongly supports the conclusion that the legislature did not intend to repeal Chapter 347, Revised Codes. Section 1 of Article X provides: "Educational, reformatory and penal institutions, and those for the benefit of the insane, blind, deaf and mute, soldiers' home, and such other institutions as the public good may require, shall be established and supported by the state in such a manner as may be prescribed by law." Section 29 of Article III provides: "The provisions of this Constitution are mandatory and prohibitory, unless by express words they are declared to be otherwise." No express words appear anywhere in the Constitution relieving the state of the mandate expressed in section 1, Article X, nor relieving the counties of the mandate expressed in section 5 of the same Article, unless it be found in the two sections themselves.
It will be noted that specific mention is made in section 1 of many things the state shall do in the premises, and then adds, "and such other institutions as the public good may require." The establishment and maintenance of institutions only are mentioned. Nothing is said about caring for the poor. In section 5 the counties are not specifically commanded to establish institutions for the purpose therein specified, but are commanded to "provide" by law for those "who, by reason of age, *Page 544 infirmity or misfortune," may have claims upon society. Here are two clear, unmistakable, and separate constitutional obligations imposed upon the state and the several counties, and the respective obligations of each may be carried out harmoniously by the reasonable construction of the provisions of Chapter 82.
In interpreting section 5, Article X, this court said inMills v. State Board of Equalization, 97 Mont. 13, 23,33 P.2d 563, 567: "When the framers of our Constitution by section 5 of Article X, made it the duty of counties to provide for the support and care of unfortunates, they did not thereby prohibit the legislature from likewise making provision whereby the state could assist in the care of these deserving persons." This decision holds, in substance, that the duty of caring for the poor is placed primarily upon the counties, but the state mayassist the counties. This decision was followed in State exrel. Normile v. Cooney, 100 Mont. 391, 47 P.2d 637.
Relator's contention that Chapter 347 is repealed by the conflicting provisions of Chapter 82, if upheld, would leave the care of the poor under the exclusive supervision of the State Department of Public Welfare, for the reason that the duty imposed by section 5, Article X of the Constitution, upon the counties to care for the poor and infirm, would be inoperative by reason of the fact that the legislative provision, Chapter 347, Revised Codes, for carrying that mandate of the Constitution into effect would be wiped out if Chapter 347 is held to be repealed by implication. This would result in the counties being required to levy six mills and a poll tax on the property and inhabitants of the counties to provide funds to care for the poor, but the county boards would have no power or supervision over the distribution of the funds derived from such levies and collections. Such an administration of the poor laws would effectually nullify the provisions of section 4, Article XII of the Constitution, which is as follows: "The legislative assembly shall not levy taxes upon the inhabitants or property in any county, city, town, or municipal corporation for county, town, or municipal purposes, but it may by law invest in the corporate authorities thereof powers to assess and collect taxes for such purposes." *Page 545 This provision of the Constitution could have no other purpose than to vest in "corporate" authorities of the counties, towns, cities, and other municipal authorities the power to regulate their local affairs to the extent mentioned, free from the dictatorial powers of the legislative assembly, but to what purpose is this constitutional inhibition placed upon the legislature if the legislature may dictate to such "corporate authorities," which, according to relator's contention, it assumes to do by Chapter 82, as to how and in what manner the county may spend the funds derived from the levies made by the county authorities? The conclusion is inevitable: The county board retains its discretionary powers to distribute the funds derived from taxation which the Constitution provides that it only has the power to levy and collect. There is nothing, however, in the Constitution prohibiting the state from assisting the county.
If the county's ability breaks down and the state, or the federal government through the state, comes to the assistance of the county, well and good, and to the extent that state or federal funds are distributed through county agency, the state or federal government undoubtedly may dictate the mode and manner of such distribution, but neither the state nor the federal government may dictate to the executive head of the county government — the board of county commissioners — how or in what manner it shall grant relief to the poor or destitute when such relief is provided by funds produced from taxes levied upon the inhabitants or property within the county. To hold otherwise would be to assume that the legislative assembly intended by Chapter 82 to provide for a revolutionary departure from the principles of traditional American government — to take a long step towards abolishing local self-government. The county unit is too well established in our system of government to assume that there was any intention to uproot it or to impair its integrity. A recent amendment to the Constitution — section 8, Article XVI —, see Laws 1935, Chapter 102, assures the corporate entity of the county, and that alone is sufficient to indicate a clear intention that its powers shall be retained unimpaired. *Page 546
As to the remedy sought by this proceeding: The rules governing the right to a writ of mandamus are so well established that they should be known to all. Whether the writ shall issue at any time or in any case is within the sound discretion of the courts. (Sec. 3, Art. VIII, Constitution of Montana.) Mandamus is an extraordinary remedy, not to be had merely for the asking, but to be obtained only where there is no plain, speedy, and adequate remedy at law. (Stabler v. Porter, 72 Mont. 62, 232 P. 187;State ex rel. Larson v. District Court, 78 Mont. 435,254 P. 414; State ex rel. County of Musselshell v. DistrictCourt, 89 Mont. 531, 300 P. 235, 82 A.L.R. 1158.) The writ will not lie unless the relator has been denied a clear legal right (State ex rel. City of Cut Bank v. McNamer, 62 Mont. 490,205 P. 951; State ex rel. Peterson v. Peck, 91 Mont. 5,4 P.2d 1086; Clark v. Bailey, 99 Mont. 484, 44 P.2d 740); nor if there be doubt of its necessity or propriety (State ex rel. School Dist. No. 29 v. Cooney, 102 Mont. 521,59 P.2d 48).
Relator not only has a plain, speedy, and adequate remedy by appeal to the state board, but in addition it does not appear that he "has been denied a clear legal right," nor is the "necessity or propriety" of issuing the writ apparent. The conclusion must be that relator has a plain, speedy, and adequate remedy at law under section III, Part I of Chapter 82, by appeal to the state board, and mandamus will not lie.
In determining the rights of the relator on such appeal, however, the state board may review the decisions of the county board only as to the acts of the county board relative to the disbursement of such funds as are supplied to the county by the state out of state or federal funds available for such purposes. The state board has no jurisdiction over the county board in the distribution of county funds derived from taxes levied upon the inhabitants or property of the county.
The writ should be denied, and the proceeding dismissed. *Page 547