
    VICTOR PEASE et al., Plaintiffs and Respondents, v. LAULETTE I. HANSEN et al., Defendants and Respondents v. THEODORE CARKULIS et al., Defendants and Appellants.
    No. 11901.
    Submitted Feb. 17, 1972.
    Decided March 10, 1972.
    Rehearing Denied April 5, 1972.
    494 P.2d 925.
    Mr. Justice Daly, took no part.
    Thomas H. Mahan (argued), Helena, for appellants.
    J. Fred Bourdeau, County Atty., James R. Walsh, Deputy mnty Atty. (argued), Robert B. Gillan, Great Falls, for spondents,.
   MR. JUSTICE JOHN C. HARRISON

delivered the Opinion of the Court.

On March 16, 1970, plaintiff Victor Pease filed a complaint in the district court of the eighth judicial district, Cascade County, seeking a judgment declaring section 71-302, R.C.M. 1947 (Eligibility requirements for general relief), and Section 4561-2, Montana Department of Public Welfare Manual Volume IV (Policies and Procedures), unconstitutional, in that the residency requirements for welfare eligibility therein violate the provisions of the Fourteenth Amendment of the United States Constitution. Pease further sought a permanent injunction restraining the defendants from enforcing the durational residency requirements of the statute and regulation.

On June 17, 1970, the district court entered findings of fact, conclusions of law, order, judgment and decree, wherein it found that, indeed, the residence requirements of the statute and regulation were violative of the Fourteenth Amendment of the United States Constitution and cited Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600. However, the district court made a distinction between the effect of the statute and regulation on the two defendant welfare agencies. It held the statute and regulation were unconstitutional insofar as I they conditioned general relief assistance on a durational residency requirement but that the statute and regulation were! constitutional as “a proper method of establishing the propor-l tionate share of social relief to be provided by the individual counties.” I

The district court “perpetually enjoined” defendants fronl “enforcing the one year residency requirement” contained ill the statute and regulation but determined that the statute anfl regulation were permissible prohibitions on the payment ofl general relief from county poor funds and that all applicant received by the county, where the applicant had not satisfieH the one year residency requirement, were to be forwarded _ the state department of public welfare for payment.

Tbe district court’s ruling was appealed to this Court and in reversing this Court stated in Pease v. Hansen, 157 Mont. 99, 483 P.2d 720, 722, 28 St.Rep. 309, 312:

“We cannot agree with the district court that Shapiro is controlling in the situation prevailing here because this case does not involve any federally assisted program.”

Since this Court reversed the district court ruling on the basis of the constitutional question, we felt no necessity to discuss the second issue presented — which agency, state or county, should pay general relief for the initial one year period.

On November 16, 1971, the United States Supreme Court reversed this Court and stated in Pease v. Hansen, 404 U.S. 70, 92 S.Ct. 318, 30 L.Ed.2d 224:

“Whether a welfare program is or is not federally funded is irrelevant to the constitutional principles enunciated in Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600.”

In view of the decision of the United States Supreme Court on the first issue, this Court ordered a return of remittitur so that a rehearing could be set as to the second issue — who shall pay. Oral argument was heard on February 17, 1972, with .neither party submitting supplementary briefs.

The issue before us now is clear: since neither the state nor Jthe county can deny general relief assistance to an applicant lilor failure to satisfy a durational residency requirement, is She county obligated to satisfy such payment out of the county Spoor fund or is the state obligated therefor?

| First, we determine which agency has the duty or responsibility for providing general relief assistance. Article X, Sec. I of the Montana Constitution provides:

H “The several counties of the state shall provide as may be ■reseribed by law for those inhabitants, who, by reason of age, Bfirmity or misfortune, may have claims upon the sympathy [Hxl aid of society.”

lilt would appear that the Montana Constitution places the Urden of providing for the aged, infirm and unfortunate upon the counties. Nevertheless, the extent of that burden is conditioned by the phrase “as may be prescribed by law”. In State ex rel. Wilson v. Weir, 106 Mont. 526, 533, 79 P.2d 305, 308, this Court said:

“The words 'as may be prescribed by law/ as used in this section, mean as may be prescribed by act of the legislative assembly.”

In Jones v. Cooney, 81 Mont. 340, 344, 263 P. 429, 430, the Court said:

“As this constitutional declaration is not self-executing the measure of relief which may be furnished necessarily depends upon statutes enacted to carry out the benevolent purpose expressed.”

Defendant Cascade County Department of Public Welfare argues that in order for the county to be obligated to pay general relief assistance to the new class of applicants created as a result of Pease, there must be specific statutory law so directing. It further argues that section 71-302, R.C.M.1947, specifically prohibits payment by the county to applicants who have not resided in the county for at least one year and that Pease does not prohibit this limitation on county funds, as long as the applicant is paid by the state.

It further argues that section 71-309, R.C.M.1947, commands payment only to residents of the county and applicants who have not resided within the county for a one year period! are not residents. This section is a prohibition on the expendil ture of county funds, but it in no way restricts payment by th<| state nor does it infringe upon the constitutional rights of thi individual applicant, since such applicant can be paid by thl state. «I

Another argument advanced by the county, although new documented,' is. that Cascade County is already taxed to tlffl maximum (17 mills) and the anticipated increase in applicanH as a .result of Pease will place an additional burden on t|a county. Further, there is a disparity among the' 56 countiW of the state in the amount of tax levy needed to fund their particular welfare programs.

Shapiro and Pease have created a new class of indigents, the transient and migrant indigent heretofore not provided for by our statutes. While the legislature did anticipate and provide for transients traveling through the state who are injured and in need of medical treatment and hospitalization (section 71-308, R.C.M.1947), it understandably failed to anticipate that the United States Supreme Court would nullify all state welfare residency requirement statutes. In so doing that Court created a great disparity among the several counties in regard to tax levies to support county general welfare programs.

Defendant Montana State Department of Public Welfare argues that without statutory provision we must look to Article X, See. 5 of the Montana Constitution, thus putting the burden on the county. It argues that Shapiro annulled all residency requirements, state and county. With this argument we cannot agree. Rather, we hold the legislature can provide residency requirements for county residence, as it has, and where ino provision has been made to care for the transient, migrant indigent the state must provide until such time as the indigent bias established residency in a county, as provided by law. ¡Residency is a matter controlled by the legislature. The legislature has provided guidelines for residency requirements in Hi number of categories, such as:

K.C.M.1947, Section 11-710-714...Mayor, Alderman, require-E ments
I 11-1814.Requirements, members of I police force
I 21-134.Plaintiff in divorce action
■ 23-522.Flections, rules for deter-II mining voting and registration
H 59-304.-....Certain officers at seat of government
59-306.Judicial officers, restrictions on
59-304-308...Public officers, restrictions
61-121..Child, parent to determine
71-209..Requirements, state, county personnel
71-302.Requirements for general relief
82-1306..Executive, residence
83-302..Qualifications for citizenship
83-303.Rules for determining
83-403.Allegiance, how renounced
93-703.District Judges
93-704.Justices of Peace, where
93-2904..Venue determined by residence
93-6601..Justice courts, actions in.

Chief Justice James T. Harrison, speaking for the Court in State ex rel. Lewis and Clark County v. State Board of Public Welfare, 141 Mont. 209, 211, 376 P.2d 1002, 1003, a case involving a dispute between the state and county welfare boards involving an injured transient female, said:

“* * * the Board is empowered to promulgate rules and regulations to effectuate the policies of the Welfare Act (seel R.C.M., 1947, § 71-204), and oft-times a rule of thumb, suchl as the fourteen day regulation, may serve this end. HoweverJ such a rule of thumb, while undoubtedly effective in the mal jority of cases, is simply unworkable in certain exceptional situations, this being one of them. Here we have a wanderin* thirteen year old child incapable of establishing a residencl in Montana, R.C.M., 1947, § 83-303, subd. 6; she had no mean! of support and roamed from place to place in Helena fcB approximately one month. Would the Board say that a noiB resident tourist who spent more than fourteen days visitirM the parks in Montana ceased to be a transient when he hfH been in this state more than fourteen days? We think not, nfl do we think that the girl in this case ceased to be. a transient after the expiration of fourteen days.”

Here, we have a somewhat similar situation — an indigent who, until Shapiro, could not become a resident eligible for welfare assistance until he had been a resident of Montana for a year. He was caught between claims of the State Welfare Board and the County Welfare Board that the other was obligated for his assistance. He became a resident of Montana for general welfare purposes by action of the United States Supreme Court, but not of the county wherein he is located until after residing in that county for one year. In the meantime, his general welfare needs are the obligation of the state.

The judgment of the district court is affirmed.

MR. CHIEF JUSTICE JAMES T. HARRISON, MR. JUSTICE HASWELL, and the HONORABLE JACK SHAN-STROM, District Judge, sitting for MR. JUSTICE CASTLES, concur.

MR. JUSTICE DALY, took no part in this cause.  