4' No. 11901 INTHE SUPREME COURT OF THE STATE OF MONTANA

VICTOR PEASE, et 

### al,,Plaintiffs and Respondents, 

### -vs

# - LAULETTE 

### L. HANSEN, 

### et al., Defendants and R.espondent9, -VS

# - THEODORE CARKULIS, 

### et al., Defendants and Appellants.

Appeal from: District Court of the Eighth Judicial 

### District, Honorable Paul G. Hatfield, Judge presiding. Counsel 

### of Record

### : ForAppellants

### : Thomas 

### H. Mahan argued, Helena, Montana, For Respondents: J. Fred Bourdeau, County Attorney, Great Falls,

Montana

# . James R. Walsh, Deputy County Attorney, argued,

Great Falls, Montana. Robert B. Gillan 

# ,Great Falls, Montana.

Submitted: February 

### 17, 1972 Decided: 

## MAR 1 0 

### 1972

### Mr. Justice John Conway Harrison delivered the Opinion of the Court.

On March 16, 1970, plaintiff Victor Pease filed a complaint in the district court of the eighthjudicial district, Cascade County, seeking a judgment declaring section 71-302, R.C.M. 1947 (Eligibility requirements for general relief), and Section4561-2, Montana Department of Public Welfare Manual Volume IV (Policies and Procedures), unconstitutional, in that the residency requirements forwelfare eligibility therein violate the provisions of theFourteenthAmendment of the United States Constitution. Pease further sought a permanent injunction restraining the defendants from enforcing the durationa1residency requirements of the statuteand 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 theFourteenthAmendment 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 statuteand regulation on the two defendant welfare agencies. 

### It held the statuteand regulation were unconstitutional insofar as they conditioned general relief assistance on a durationab residency requirement but that the statuteand regulation were constitutiona

### 1

as "a proper method of establishing theproportionate share of social relief tobe provided by the individual counties." The district court "perpetually enjoined" defendants from''enforcing the one year residency requirement" contained in the statuteand regulation but determined that the statuteand regulation were permissible prohibitions on the payment of generalrelief from county poor funds and that allapplications received by the county, where the applicant had not satisfied the one year residency requirement, were tobe forwarded to the statedepartment of public welfare for payment. The district court's ruling was appealed tothis Court and in reversing this Court stated inPease v. Hansen, 157 Mont. 99, 483 P.2d 720, 722, 28 St. Rep. 309,312: "We cannot agreewith 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 the basis of the constitutionalquestion, we feltno necessity to discuss the second issue presented---which agency, stateor 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, U.S. 9

"Whether a welfare program 

### is or 

### is not federally funded 

### is irrelevant tothe constitutional principles enunciated in Shapiro v. .Thompson, 394 U.S. 618." In view of the decision of theUnited States Supreme Court on the first issue, this Court ordered a return 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 statenor the county can deny general relief assistance toan applicant for failure tosatisfya durational residency requirement, is the county obligated to satisfy such payment out of the county poor fund or 

### is the stateobligated therefor?First, we determine which agency has theduty or responsibility for providing general relief assistance. Article X, Sec. 5 of the Montana Constitution provides: "The several counties of the stateshallprovide asmay be prescribed by law for those inhabitants, who, by reason of age, infirmity ormisfortune, may have claims upon the sympathy and aid of society.11 It would appear that theMontana Constitution places the burden of providing for the aged, inf&rmand unfortunate upon the counties. Nevertheless, the extent of that burden 

### is conditioned by the phrase "as may be prescribed by;dawl'. In State ex rel. Wilson v. Weir, 106Mont. 

### 526, 533, 79 P.2d 305, this Court said: "The words 'as may be prescribed by laq' as used in this section, mean as may be prescribed by Act of the legislativeassembly. 11 In Jones v. Cooney, 81Mont. 340, 344, 263 P. 429, the Court said: 

### "As this constitutional declaration 

### is not selfexecuting the measure of relief which may be furnished necessarily depends upon statutesenacted tocarry out the benevolent purpose expressed." Defendant Cascade County Department of Public Welfare argues that in order for the county tobe obligated topay general relief assistance to the new class of applicants created asa result of Pease, theremust be specific statutory law sodirecting. 

### It further argues that section 71-302, R.C.M. 1947, specifically prohibits payment by the county toapplicantswho have not resided inthe county for atleast 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 toresidents of the county and applicantswho have not resided within the county for a one year period

arenot residents. This section 

### is a prohibition on the expenditure of county funds, but it inno way restricts payment by the statenor does it infringe upon the constitutional rights of the individual applicant, since such applicant can be paid by the state. Another argument advanced by the county, although not documented, 

### is that Cascade County 

### is already taxed to the maximum (17 mills) and the anticipated increase inapplicants as

a result of Pease 

### willplace an additional burden on the county. Further, there 

### is a disparity among the 

### 56 counties of the state in the amount of tax levy needed tofund 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 statewho are injured and in need of medical treatment and hospitalization (section 71-308, R. C.M. 1947), it understandably failed toanticipate that the United States Supreme Court would nullifyallstatewelfare residency requirement statutes, In sodoing that Court created a great disparity among the several counties inregard totax levies to support county general welfare programs. Defendant Montana StateDepartment of Public Welfare argues that without statutory provision we must look toArticle X, Sec. 

### 5 of theMontana Constitution, thus putting theburden on the county. It argues that Shapiroannulled allresidency requirements, state and county. With this argument we cannot agree. Rather, we hold the legislature can provide residency requirements for county residence,

as ithas, and where no provision^ has been made tocare for thetransient, migrant indigent the statemust provide until such time

as the indigent has established residency ina eounty,as provided by law. Residency 

### is a matter controlled by the legislature. The leg

### isl a t u r e has provided guidelines forresidency requirements ina number of catagories, such as: R.C.M. 1947, Section 11-710

# - 714---Mayor,Alderman, requiranents 11-1814-------- Requirements, members of police force 21-134 

# --------Plaintiff indivorce action 23-522 

# --------Elections, rules for determining voting and registration 59-304 

# -------- Certain officers atseat of government 59-306 

# -------- Judicial officers, restrictions on 59-304-308----- Public officers, restrictions 61-121

# -------- Child, parent todetermine 71-209 

# -------- Requirements, state, county personnel 71-302 

# -------- Requirements for genera

### 1 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

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

# "*** theBoard is empowered topromulgate rules and regulations toeffectuate the policies of the Welfare Act (see R.C.M.1947, $ 71-2041, and ofttimes a rule of thumb, such as the fourteen day regulation, may serve this end. However, sucha rule of thumb, while undoubtedly effective in the majority of cases, 

### is simply unworkable incertain exceptional situations

## , this being one of them. Here we have a wandering thirteen year old child incapable of establishing a residence inMontana, R.C.M. 1947, $ 83-303, subd.6;she had no means of support and roamed from place toplace inHelena for approximately one month. Would the Board say that a non-resident tourist who spent more than fourteen days visiting the parks in Montana ceased tobe a transient when he had been in this statemore than fourteen days? We think not, nor do we think that the girlin this case ceased tobe a transient after the expiration of fourteen days. 11 Here, we have a somewhat similar situation--an indigent who, until Shapiro, could not become a resident eligible forwelfareassistance untilhe had been a resident of Montana for a year. He was caught between claims of the StateWelfare Board and the County Welfare Board that the other was obligated for his assistance. He became a resident of Montana forgeneralwelfare purposes by action of theUnited States Supreme Court, but not of the county wherein he 

### is located until after residing inthat county for one year. In themeantime, his generalwelfare needs arethe obligation of the state. The judgment of the district court 

### is affirmed.

ssociateJustices

Hon. Jack Shanstrom, District Judge, sitting for JusticeWesley



### Mr. Justice Gene B. Daly took no part inthis cause.