4' 

No. 11901 

IN THE 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 : 

For Appellants : 

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 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 dura tiona 1 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 they conditioned general relief assistance on a dura tionab residency requirement but that the statute and regulation were constitutiona 1 

as "a proper method of establishing the proportionate share of 

social relief to be provided by the individual counties." 

The district court "perpetually enjoined" defendants 

from ''enforcing the one year residency requirement" contained in 

the statute and regulation but determined that the statute and 

regulation were permissible prohibitions on the payment of general 
relief from county poor funds and that all applications received 

by the county, where the applicant had not satisfied the one year 

residency requirement, were to be forwarded to the state departmen t of public welfare for payment. 

The 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 

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, U.S. 9 

"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." 

In view of the decision of the United 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 

state nor the county can deny general relief assistance to an 

applicant for failure to satisfy a durational residency requirement, is the county obligated to satisfy such payment out of 

the county poor 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. 5 of the Montana Constitution 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. 11 

It would appear that the Montana Constitution places the 

burden of providing for the aged, inf&rm and 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, 106 Mont. 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 legislative assembly. 11 

In Jones v. Cooney, 81 Mont. 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 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 expenditure of county funds, but it in no way restricts payment 

by the state nor 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 in applicants as 

a result of Pease will place 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 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 legis la ture 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, Sec. 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 no provision^ has been made to care for the 
transient, migrant indigent the state must provide until such time 

as the indigent has established residency in a eounty,as provided 

by law. Residency is a matter controlled by the legislature. The 

leg is l a t u r e has provided guidelines for residency requirements in a 

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 in divorce action 

23-522 -------- Elections, rules for determining voting and registration 

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 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 ------- Justice courts, actions in. 

Chief Justice James T. Harrison, speaking for the Court in 

State ex rel. Lewis and Clark County v. Board of Public Welfare, 

141 Mont. 209, 211, 376 P.2d 1002, 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 (see R.C.M.1947, $ 71-2041, and ofttimes 

a rule of thumb, such as the fourteen day regulation, 

may serve this end. However, such a rule of thumb, 

while undoubtedly effective in the majority of cases, 

is simply unworkable in certain exceptional situations , this being one of them. Here we have a wandering 

thirteen year old child incapable of establishing a 

residence in Montana, R.C.M. 1947, $ 83-303, subd.6; 
she had no means of support and roamed from place 

to place in Helena 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 to be a transient when he had been in 

this state more than fourteen days? We think not, nor 

do we think that the girl in this case ceased to be 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 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. 

ssociate Justices 

Hon. Jack Shanstrom, District 

Judge, sitting for Justice Wesley 

Mr. Justice Gene B. Daly took no part in this cause.