State Ex Rel. McDonald v. Stevenson

Main, J. — James McDonald filed a petition in the superior court of King county in which he sought a writ of mandamus directed to the members of the board of county commissioners of that county requiring them to carry into effect the provisions of the old age pension act (chapter 29, Laws of 1933, p. 173, Rem. 1933 Sup., §§ 9998-1 — 9998-20). After the petition was filed, an alternative writ of mandate was issued, and the commissioners were required to show cause why a permanent writ should not issue. The commissioners appeared by demurrer and answer, and a hearing was *356 had which resulted in a judgment in the form of a writ of mandamus directing the commissioners to go forward under the act, but the judgment did not grant all the relief which the petitioner sought. From the judgment entered, the petitioner appeals. The commissioners, apparently being satisfied with the judgment in the extent to which it went, did not appeal. Section 1 of the old age pension act provides that the board of county commissioners of each county “. . . shall have the power and it shall be their duty, in making provision for the support of the poor of the county, to provide funds in the county treasury for the purpose of carrying out the provisions of this act.” Rem. 1933 Sup., § 9998-1. Section 2, Rem. 1933 Sup., § 9998-2, provides that the board shall have power to grant a monthly pension, in such amount as the board shall determine, not to exceed thirty dollars per month, “to be paid out of the county treasury to any person who has attained the age of sixty-five years. . . .” Section 3, Rem. 1933 Sup., § 9998-3, covers the matter of applications, their form and contents. Section 5, Rem. 1933 Sup., § 9998-5, provides that the application, when filed with the clerk of the board, shall come on for hearing “before the board at the next ensuing regular session. . . .” Section 6 provides that, upon the conclusion of the hearing, the board shall enter an order in its minutes “. . . denying the application and the grounds therefor, or granting a monthly pension to the applicant in such amount not exceeding thirty dollars per month, and for such length of time not exceeding one year, as to the board shall seem just and reasonable, . . .” Rem. 1933 Sup., §9998-6. Section 7 provides that the order granting a pension *357 “. . . shall authorize the county auditor to draw his warrant upon the county treasurer for such payments to the applicant, . . . out of the current expense fund of the county.” Rem. 1933 Sup., § 9998-7. In the judgment entered, it was provided that the board of county commissioners (a) direct the county auditor to furnish blanks to the appellant and all applicants who apply therefor, in conformity with chapter 29, Laws of 1933, p. 173; (b) direct the clerk of the board of county commissioners to accept and file such applications; (c) conduct hearings on such applications in accordance with the provisions of the law; (d) complete the hearings within sixty days from the date of the filing of the applications; and (e) at the conclusion of the hearings enter an order in the minutes of the board “either granting a monthly pension to the relator or other applicants or denying the application and stating the grounds therefor.” It will be observed that nowhere in the judgment were the commissioners directed to draw warrants upon the county treasurer, or to provide funds for the payment of such pensions as the board should allow. The judgment, in so far as it granted affirmative relief, was in accordance with the provisions of the old age pension act; but it did not go quite far enough. Section 1 of the act, as above appears, provides that “. . . it shall be their [the board of county commissioners] duty, in making provision for the support of the poor of the county, to provide funds in the county treasury for the purpose of carrying out the provisions of this act. ’ ’ Rem. 1933 Sup., § 9998-1. Section 7, Rem. 1933 Sup., § 9998-7, provides that the commissioners, when they allow a pension, shall authorize the county auditor to draw his warrant upon *358 the county treasurer for such payment “out of the current expense fund of the county.” Under these provisions, it was the mandatory duty of the commissioners to provide the funds, as stated in § 1, and to draw the warrants, as stated in § 7. It is said, however, that the word “shall,” as it appears in each of those sections, should be construed as “may.” With this contention, we are not in accord. If such a construction were adopted, it would mean that the time when the act would become operative rested in the discretion of the board of county commissioners. We see nothing in the act which would justify such a construction. The legislature made its meaning plain, and it should be carried out. It is the duty of the commissioners, under the act, to pay the pensions allowed to the applicants out of any funds available, and if no funds are available, then it is their duty to provide the funds, in so far as they have the lawful authority so to do. The judgment should have directed the county commissioners to pay the pensions out of any funds available, and, if no funds are available, to provide such funds. We affirm the judgment of the trial court in so far as it granted affirmative relief. The cause will be remanded to the superior court, with direction to amend the judgment and give the additional relief to which, it is herein pointed out, the appellant was entitled. Beals, C. J., Mitchell, Tolman, Holcomb, Millard, Blake, and G-eraghty, JJ., concur.