I concur. It seems to me cruel and misleading to hold otherwise. It is apparent that nothing this court can say will add one dollar to the fund available for old age pensions, and that if relatrix receives more than her pro rata share of the available fund, it must necessarily be at the expense of the others entitled.
To hold, as relatrix contends, that each old age pension must be paid in full so long as funds are immediately sufficient, means that where the funds are not sufficient for all, those first entitled, without regard to relative needs and hardships of others, *Page 463 must receive theirs in full, leaving nothing whatever for the others. This might serve to deprive whole counties, whose administration of the Act may have been slower; it may, perhaps, deprive Mrs. Dean, the relatrix herein, of any payment whatever for June, for we are not informed as to her relative priority.
One of the minority opinions suggests that the matter is not presented in this case, since the sole question here is the full payment of the April pensions, for which funds are sufficient if the remainder of the fiscal period is ignored. However, it would hold that, so far as possible the full payments fixed by the county boards must be paid; that the state board's sole power to change those amounts is by appeal in each of the thousands of individual cases, and that the only element it can consider is the need of the individual, with no reference whatever to the moneys available. It would necessarily follow from that view that if by reason of full payment of April and May pensions, too little remained to pay all June pensions, the first comers must be paid in full and the rest go without.
It is unthinkable that the legislature had any such intention. The obvious purpose was to provide for all the persons affected and not for a favored few. It is much more consistent with the humane and enlightened purpose of the Act, to hold that where the funds for the fiscal period are insufficient the legislative intent in entrusting the supervisory powers to the State Board, was to minimize any hardship by an equitable apportionment of the fund. Since that is so, and since by the Constitution the courts are forbidden to interfere with another branch of government unless the latter is obviously acting in defiance of law, it seems clear that we cannot disregard the legislative intent nor overrule the executive discretion.
As I said at the outset, it would be cruel and misleading to hold otherwise, for nothing the court can say would add one dollar to the fund for these pensions. In the Constitution the people of Montana, wisely or not, entrusted the appropriation power to the legislature, since it is the branch closest to the people. The legislature is forbidden by the Constitution to abdicate *Page 464 its power to any other agency of the government. No such legislative intent is apparent in the Act in question, and if such intent appeared, it would be clearly beyond the powers of the legislature; it cannot, therefore, be read into the Act.
If the legislature, by this Act, meant to engage itself and its successors to supply without limit and regardless of realities and circumstances, all funds necessary to pay in full all pensions fixed by the county commissioners, it must to that extent have meant, in last analysis, to abdicate to the fifty-six boards of county commissioners its powers over appropriations. Clearly, it could have no authority to do this.
State ex rel. Board of County Commrs. v. District Court,62 Mont. 275, 204 P. 600, dealing with mothers' pensions, is not in point, since the legislature, itself fixed the amounts to be paid for the benefit of each child, and expressly limited the total amount to be expended for the purpose by any county. It attempted to abdicate no power to any other agency of government, and that case raised no such question as is here presented.
The legislature did not attempt, and had not the authority, to bind the state in advance to supply all funds which might become necessary by the actions of the fifty-six boards of county commissioners, — in other words, it had neither the power nor the intent to issue blank checks to the various county boards, which ultimately other legislatures must arrange to pay. One of the dissenting opinions disagrees with this statement on the ground that an appeal to the State Board is available. However, (1) according to the minority all the State Board can do is to review the sole question of need without regard to the public's ability to pay; and (2) the legislature can no more abdicate its power over appropriations to the State Board than it can to the county boards. In either respect it shackles itself and all succeeding legislatures and abdicates its power over appropriations, if the law is as the minority contend; and it has no constitutional power to do so.
Since these things are true, it is clearly not for the benefit of those persons entitled to old age pensions, and perhaps not *Page 465 for the benefit of relatrix herself, to require the payment of each award for which funds immediately suffice, without regard for the needs of others in the same month or in other months of the fiscal period. It would, therefore, be neither proper nor equitable for the court to interfere with the executive branch of government as relatrix asks.
There has been an intimation that by reason of refunds from certain counties, additional funds may become available during the fiscal period in question. If so, additional checks should be issued to restore, so far as possible, the amounts deducted, since the only limit to the individual awards as determined by county boards unless appealed from, is the ability of the state to pay under the appropriation as necessarily fixed by the legislature under the Constitution.
I concur in the denial of the writ.