I concur in the dissenting opinion of Mr. Justice Erickson.
The suggestion in the special concurring opinion that if the writ applied for were to be issued, we would be holding that the *Page 472 legislature had issued blank checks to the county commissioners of the state and had abdicated for itself and succeeding assemblies the power over appropriations, is unwarranted. These alarming results do not follow. The legislature has provided for a check upon the amount payable to any recipient by providing for an appeal to the State Board by anyone interested, or by review by the State Board of its own motion. If it desired other review it would have so provided. The suggestion that succeeding legislative assemblies would be shackled were the writ to issue rests wholly in imagination.
I think whichever way this case goes, each succeeding legislative assembly may deal with the question of old age pensions as it sees fit.
A careful reading of the statute fails to reveal any authority on the part of the State Board to reduce any of the awards except on review as provided by statute, which was not done here. Were the situation reversed, i.e., had the legislature appropriated more money than was needed to pay the awards of recipients, and had the State Board arbitrarily increased each award so as to use all of the money appropriated, the members of the court who go to make up the majority in this case would certainly have to hold that the State Board has not that authority. I find no authority on the part of the State Board to either reduce or increase the awards except upon a review provided for by statute, which concededly was not followed here. The board is a creature of statute and possesses only such authority as the statute gives it. If the State Board has the authority exercised here, then could it not, for the same reason, instead of making a flat horizontal reduction in each award, eliminate entirely any award to those between 65 and 68 years of age, or drop from the relief rolls certain recipients on some other basis selected by the State Board?
The answer to all of these suggested courses of procedure is that before the State Board can do any of these things it must point to some statute authorizing it to do so. That it has not done, for the obvious reason that no such statute exists. *Page 473
To compel the payment of the awards made, so long as there remains sufficient money to do so, as is sought here, does not in anywise change or alter the appropriation made by the legislature. If the appropriation is or must be altered that will have to be done, not by any action of the county commissioners, but under the sanction of the legislature as prescribed by Chapter 40, Laws of 1937, or by the legislative assembly in general or special session.
I think the writ applied for should issue.
Rehearing denied July 12, 1939.