dissenting:
I dissent.
The majority opinion is a remarkable one in that it either ignores or evades the real issues. The result of affirming the district court order will be:
(1) It makes welfare funds strike funds and this requires all Montana taxpayers to contribute to strike funds.
(2) It does not require the Union to divulge its resources.
(3) It either ignores the statutes and Constitution or interprets them in an unconstitutional manner.
(4) It will result in requiring striking families to become paupers to secure aid.
In order that the many issues unanswered by the majority opinion be known, I shall set forth many details not mentioned in the majority opinion.
This is an appeal from a judgment of the district court of the second judicial district, which judgment was entered granting a peremptory writ of mandate, directing the State Welfare Board and the members thereof to set aside a certain relief order hereinafter set forth in more detail. The background of the judgment appealed from is as follows: Following a strike in the copper industry, the Montana State Board of Public Welfare, appellants herein and hereinafter referred to as the Board, issued an order on August 27, 1959, relating to general welfare *310assistance, in which counties anticipating grants-in-aid from the state department could allow applicants connected with the strike, in other words striking members of the mine, mill and smelter union, certain welfare payments.
On the 23rd day of September 1959, the Board reviewed the above order after meeting with various county commissioners, and respondent union representatives, and others, and then issued a new order, in effect, rescinding the August 27th order. This order provides in part as follows: ‘ ‘ Having considered the statements presented by representatives of the union now on strike in Montana and of commissioners of affected counties, and considering the present situation as a temporary, localized welfare problem, and because of the severe limitation of funds available to the State Welfare Department, and in order to protect welfare recipients throughout the State who would otherwise be in jeopardy of becoming completely without funds, and to protect the women and children of affected families by providing some funds as long as possible, the standards set by the August Welfare Board meeting will be modified as follows * * *. ”
The order then provides that the families of the strikers will, in effect, be put in separate category from other general relief recipients and will be entitled to 50 percent of the standard budget sum for a family; that they will be able to retain assets of $300 for emergency needs, count certain family income and exclude other family income; and that single men will be excluded as food is being furnished them by the union. The order concludes: “The State Board will reconsider this policy as the situation demands and as funds are available.”
After the issuance of the above order, on October 2, 1959, the executive committee of the joint negotiating committee of the International Union of Mine, Mill and Smelterworkers, an unincorporated association, Ernest Salvas, Chairman, Maurice Powers, secretary, Barney Rask, Ray Graham, Mike Tursich and Tom Dickson, as member thereof, as relators, and one indi*311vidual, filed their affidavit and application for an alternative writ of mandate in the district court.
The district court thereupon on the same day issued an order granting an alternative writ of mandate. Following several extensions and amendments, which are not important to this opinion, the State Welfare Board and its members filed motions to quash the alternative writ. The motions to quash were filed on October 22, 1959, and were argued by the attorney general and counsel for the relators. The court thereupon denied the motion to quash, and the attorney general refused to plead further and elected to stand on the motion to quash. Exceptions were noted to the court ruling.
After the Board stood on the motion to quash, the relators then proceeded with their testimony. At the conclusion thereof, the matter was taken under advisement by the court, and a judgment granting a peremptory writ of mandate was entered by the lower court on October 29, 1959. An appeal was immediately taken to this court, and this court granted a stay of proceedings until further order and set the matter for oral argument on November 16, 1959.
The attorney general’s position in this appeal is that the lower court’s ruling denying the motion to quash is contrary to law and that the peremptory writ of mandate issued by the lower court is contrary to law and to the facts presented.
The motion to quash and the exceptions thereto raised these points:
“1. Relator Union is not a proper party in interest or real party in interest, and therefore is not entitled to a Writ of Mandate against the State Welfare Department.
“2. Administrative remedies provided by law have not been exhausted — therefore, Court action is premature.
“3. Writ of mandate is not the proper remedy in this action.
“4. The writ and other pleadings fail to state a legal cause of action.
“5. The pleadings are defective in that it is not shown that *312the welfare department has the funds available to comply with the requested order.
“6. Relators have not alleged an abuse of discretion by the board.
“7. The relator union has not stated what resources it has available to help the affected union members.
“8. The pleadings do not show that the relators have the authority from the union to bring the action.
“9. Relators are asking for an illegal order in that that order commands the State Welfare Board to grant ‘equal treatment and adopt equal rules and regulations for all recipients of general relief assistance.’
“10. Mandamus cannot be used to control discretion.”
As to the first and second grounds for the motion to quash, we will assume that the relator union, the members of its executive committee, and William Gatley, as an individual, are proper parties. In this connection the complaint and petition for writ of mandamus alleges that the union and its executive committee represent all members of the union and that all of its members are affected in the same manner. In other words, it is shown by the complaint, and not controverted, that the strike is a voluntary strike by the members of the union to improve their own economic status by collective bargaining. This matter is mentioned in view of subsequent discussion about the right of an indigent poor person to welfare payments in the first instance. It is also noted because of the surprising statement found in the union’s brief filed before this court that “* * * this matter is one of very arbitrary and capricious discrimination against people who become indigent by reason of the fact that a strike occurred and over which they had no control.” Obviously under the pleadings and testimony introduced and on the affidavits, the members of the union must have had control over their own actions. If this be not true, we would be called upon to “pierce the union veil” to discover whether or not each member voluntarily participated in the strike. Since no individual members, *313other than G-atley, are parties to this suit, and no such contention is made, we are not free to indulge in such interesting speculation.
Point number three of the motion to- quash, that the writ of mandate is not the proper remedy in this action is well taken. The writ of mandate ordered the Board to resign (rescind) its orders of August 25, 1959 and September 22, 1959. In other words the Board had already acted and now the relators demand that these orders be rescinded. Mandamus is ordinarily a remedy for official inaction by compelling the performance of a legal duty which the Board had failed or refused to perform. Mandamus is not the proper remedy to compel the undoing of acts already done with a correction of errors or wrongs already perpetrated even though the action was taken under color of performance of a public duty or was clearly illegal. See 55 O. J.S. Mandamus, sec. 51, p. 87. This court in State ex rel. Hauswirth v. Beadle, 90 Mont. 24, 300 Pac. 197, 198, stated:
“ ‘The writ of prohibition is the counterpart of the writ of mandate. It arrests the proceedings of any tribunal, corporation, board, or person, whether exercising functions judicial or ministerial, when such proceedings are without or in excess of the jurisdiction of such tribunal, corporation, board or person. ’ Section 9861, Rev. Codes 1921 [now R.C.M. 1947, sec. 93-9201].”
In Sawyer Stores, Inc. v. Mitchell, 103 Mont. 148, 179, 62 Pac. (2d) 342, 356, this court held:
“A writ of mandate commands an action to be done, while an injunction restrains the doing of an act. ’ ’
This precise situation is before the court where the Board has acted and relators are attempting to prohibit the Board from enforcing their order of September 22nd.
Contrary to this contention, the relators cite the case of State ex rel. Dean v. Brandjord, 108 Mont. 447, 92 Pac. (2d) 273, wherein a writ of mandamus was apparently approved by this court. However, the propriety of the writ was not questioned in that action.
*314The motion to quash pointed out that the relators had not pled what resources it had available to help affected union members, or that the relators had authority from the union to bring the action, and the pleadings do not show that the State Welfare Board has funds available to comply with the requested order. The motion is well-taken on these several grounds.
First, the affidavit of the relator, William Gatley, as an individual, fails to show that he has exhausted his resources or that he cannot receive assistance from his union. Nowhere in any of the pleadings is it alleged that the resources of the union are such that union members cannot receive help from the union. It must be kept in mind, in this case, that the union is representing all of its members, as it claims as their agent, and as their sole bargaining power. If this be true, and we assume that it is, then section 71-303, requires an investigation into resources. The relator union is certainly a resource, since it is alleged to be an association of all of its members, and it must be shown whether or not this agency has resources to help. It is a well-known fact that the accumulation of a reasonably necessary strike fund is one of the proper objects of a labor organization. 47 A.L.R 282.
This court held in State ex rel. Blenkner v. Stillwater County, 102 Mont. 130, 56 Pac. (2d) 1085, 1086, that:
“The question to be determined here is whether the relator upon his application (which was in the form of an affidavit) is entitled to the relief sought. The motion to quash admitted the truth of the allegations of the application, just as a demurrer to any pleading admits the truth of all facts properly alleged therein. [Citing cases.] Defendants recognize this proposition, but they take the position that the application does not state facts sufficient to warrant the issuance of the writ of mandate, and that it is deficient in several particulars. In support of this assertion they set out in their motion to quash several grounds upon which they claim the application is insufficient to justify granting the relief demanded. As we view the *315ease, it will not be necessary for ns to consider all of the propositions therein set forth. If any one of the grounds enumerated in the motion to quash is well taken and valid, then, of course, the order of the court sustaining the motion must be sustained.
“One of the points urged by defendants in support of the motion to quash was that the application failed to allege or show that there were sufficient funds in the general fund of the county to make the transfer possible. In this connection relator alleged in his application that there were ample funds in the hands of the county treasurer in the ‘general and other funds thereof’ from which such a transfer could be made. This we think was insufficient.
“The rule is well established that before a person is entitled to a writ of mandamus, he must establish a clear legal right in himself and a violation of a duty by the person or officer sought to be coerced. [Citing cases.] * * * The party applying for the writ must disclose the facts which establish his clear legal right to the relief sought. [Citing case.] An application for a writ of mandamus must allege facts which show not only a duty on the part of the defendant, but also an ability on his part to perform that duty. [Citing cases.] It is quite generally held that where it is sought to compel the payment of money, it must be made to appear that there are funds from which the payment can be made.” Emphasis supplied.
The State Welfare Board’s order, of September 22, which is the one challenged here, is predicated on a severe lack of funds available, and states that the situation will be reviewed as funds are available. In the face of this, and being the order challenged, it became necessary to allege the availability of funds to carry out the order.
The majority opinion ignores the precedent set by the State ex rel. Blenkner v. Stillwater County case, supra.
While we have felt it necessary to discuss certain technicalities and grounds with relation to the motion to quash, we do not feel that technicalities are the ruling factor in this decision. *316Hereafter we shall assume that the motion to quash was not well-taken and go directly to the merits of the case, since this is a matter of great public concern and interest, and the future direction of welfare activities may depend upon the outcome of this case.
The basis for tax collections and payments of tax monies for welfare payments is found in Article X, sec. 5 of the Constitution, which 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.”
Repeating, “those inhabitants, who, by reason of age, infirmity or misfortune, may have claims upon the sympathy and aid of society.” Emphasis supplied.
The present Welfare Act has its basis in Chapter 82, Laws of 1937. That Act provided in Part II, in section 11(b), that:
‘1 The fact of need shall be the determining factor in the right of residents to obtain relief. Any individual or family who is a resident and whose income is insufficient to provide the primary necessities of life, such as food, shelter and clothing, shall be eligible for relief.”
Section III of Part II, now R.C.M. 1947, sec. 71-305, provides for equal consideration:
“Persons eligible for and in need of relief shall be, whether employable or unemployable, given equal consideration for public assistance as those persons eligible for assistance under other parts of this act. ’ ’ Emphasis supplied.
It will be seen that the words “employable or unemployable” are not as to employment or unemployment but rather as to whether one is out of work because of economic circumstances, or in other words, as the Constitution provides a misfortune upon which a claim for sympathy and aid of society could be made; or whether, one is physically or mentally incapacitated to work and therefore unemployable. It should be remembered that *317this Welfare Act was passed in 1937, at the height of a depression, and economic circumstances were such that it was a misfortune to be out of work through no fault of one’s own making and resulting in helplessness.
Section II, subdivision (b) of Part II, previously referred, to has been amended since, and has dropped the requirement of need as the determining factor, and substituted therefor an “investigation by the county department reveals that the income and resources are insufficient to provide the necessities of life, and assistánee shall be provided to meet a minimum subsistence compatible with decency and health.” The determining factor of “need” is carried throughout the Act. See section 71-303. This amendment, if it be interpreted to include anyone who voluntarily leaves his means of livelihood, such as a striker, would be unconstitutional, but, if the section be interpreted as it has been by the Department of Public Welfare, prior to the orders concerning the strikers, and as recited in the Board’s order, “to protect the women and children of affected families,” so that the element of need as a result of “age, infirmity, or misfortune” is such as to arouse the “sympathy and aid of society,” then the Act is constitutional.
The constitutionality of the Act, and the interpretation of the Department of Public Welfare as to payments of aid to families of striking workmen, have not been raised in this case. However, this factor is mentioned to show that indeed the Department of Public Welfare is being fair in giving anything to- strikers and their families so long as they voluntarily leave their means of livelihood. This is not to be interpreted to mean that a strike cannot create a misfortune which would arouse the sympathy and aid of society. Quite the contrary, a strike could cause such a misfortune to workers who are not participants in the strike and who do not have a voluntary participation required.
The parties to this action, that is, the Union and its executive committee, must, in order to be proper parties, as alleged, represent the membership as a whole. If they do thus represent the *318membership as a whole, which we will assume for the purpose of this opinion, then they are voluntarily leaving their means of livelihood to benefit themselves; and, this cannot be interpreted under the Constitutional provision to be such “misfortune as to arouse the sympathy and aid of society.” Quite the contrary, collective bargaining and strikes in connection therewith, are not a misfortune, but may be good fortune, if properly conducted. The object of such strikes is to benefit oneself through collective activity. It cannot be said that voluntary activity to benefit oneself is “misfortune.” 1
Of course, in a given set of circumstances, an individual may not be a “volunteer striker.” He may not even be sympathetic with the objects and aims of a strike as an individual. This is not made to appear under the pleadings in this case, the Union itself being the party. Under the circumstances suggested heretofore, it might be necessary to “pierce the ‘Union Veil’ ” to determine whether an individual ease is a “misfortune.”
In 41 Am. Jur., Poor and Poor Laws, sec. 18, p. 694, it is said: “An able-bodied man who can, if he chooses obtain employment which will enable him to maintain himself and his family, but refuses to accept that employment, is not entitled to public relief, although relief may properly be extended to the wives and children of such men.”
And again, in 41 Am. Jur., Poor and Poor Laws, see. 19, p. 694, it is said:
“It is not the one who is in want merely, but he who, being in want, is unable to prevent or remove such want. There is the idea of helplessness, as well as of destitution.
‘ ‘ Cold and harsh as the statement may seem, it is nevertheless true that the obligation of the state to help is limited to those who are unable to help themselves.”
Thus, we observe that under the Constitution, Art. X, sec. 5, and the welfare statutes, “needs” of an individual are left to the discretion of the Board; after it has determined that the cause of destitution is due to “age, infirmity or misfortune” sufficient *319to have aroused the sympathy and aid of society. A voluntary cessation from available means of livelihood, a strike, is not such a misfortune.
However, this determination does not extend to the spouses and children of the workers.
Then, does the Board’s order, heretofore set out, constitute, prima facie, an abuse of discretion 1 It has these characteristics.
(1) It is a temporary, localized situation.
(2) It makes provision to protect the wives and children, so far as funds are available.
(3) It recites a severe limitation of funds available to the State Welfare Department.
(4) It recites a need to protect welfare recipients throughout the state who would otherwise be in jeopardy of becoming completely without funds.
(5) It provides a $300 allowance per family for emergency needs.
(6) It provides for a reconsideration as the situation demands and as funds are available.
It is clear from Part 2 of the Public Welfare Act, E.C.M. 1947, secs. 71-301 through 71-314, applicable to general relief assistance, that the Board has wide discretionary powers. The Board sets up the regulations and standards of assistance.
The only real question posed as to whether the Board has abused its discretion is as to the meaning of section 71-305 is to “equal consideration” heretofore set out and partially discussed.
What does the term “equal consideration” mean as used in section 71-305. It certainly does not mean that the Board must adopt equal rules and regulations for all applicants. This is admitted by the majority opinion. On the contrary, from the exhibits in this record, it is seen that the amount of payment to each applicant depends first on needs as to several distinct categories, food, clothing, shelter, medical attention and other factors relating thereto. It also is contemplated from the exhibits and the rules and regulations of the Board contained in those *320exhibits that some applicants may be only partially in need. That is, a working’ man having only part-time employment may be able to partially support his family but still be suffering such a misfortune as to require special help. It is also seen from the exhibits that there are several hundred separate categories set up relating to’ the size of families. Payments in varying amounts are established for different sized families, and consideration is even given to the age of children. There is a difference, for example, between the amount of relief payments made to pre-school, grade school, and high school children. There is also a difference as to adults in certain categories.
The public assistance to those persons eligible for assistance under other parts of this act, referred to in section 71-305, relates to aid to the blind, aid to the aged, aid to dependent and neglected children, aid to silicotics, aid to industrial disabled, and others. It is seen that the “equal consideration” is as between those employable or unemployable and the previously set out, infirm, aged, and youthful persons, or those suffering a misfortune as outlined in the Constitution.
As previously related, the reference as to' whether or not one who is employable or unemployable, as being entitled to “equal consideration” with others contained in the Welfare Act must be as to whether one is out of work and employable and thus helpless, or unemployable and thus helpless. It cannot be interpreted as to mean one who is employable, but who does not desire to work, because if it was so1 interpreted he would not be one to suffer a misfortune as required by the Constitution, and therefore such interpretation would render the Act unconstitutional.
To summarize then, the Board does have a wide discretion and authority to set up separate standards for applicants for general relief assistance. I would question whether or not this authority is so broad as to eliminate the need of an investigation of the resources of an applicant to determine whether or not he is in need and helpless such as might be suggested in the *321Board’s order which provides that a $300 allowance in securities and cash might be retained by the families under consideration for emergency needs. However, in view of the other provision of the order, that is, that fifty percent of the normal family payment shall be made, and in view of the fact that it is a temporary local situation, subject to review, and in view of the fact that there is recited a severe shortage of funds; taking all of these factors together, I am not prepared to say that the Board’s order is such an abuse of discretion as to render it invalid.
For the reasons previously related, including those technical reasons discussed in the first part of this opinion and also going on to the merits of the case, I find no abuse of discretion as to the Board’s order and would reverse the district court, set aside the writ of mandate, and judgment previously issued, and would order the case dismissed.