MR. JUSTICE ADAIR:
In 1937, the Twenty-fifth Legislative Assembly of Montana enacted this state’s Public Welfare Act, effective from and after July 1, 1937, being Chapter 82 of the Session Laws of 1937, now sections 71-201 to 71-904, inclusive, Revised Codes of Montana of 1947.
Section III, of Part II of Chapter 82, Laws of 1937, now section 71-305, R.C.M. 1947, reads:
“Section III. Equal consideration.
“Persons eligible for and in need of relief shall be, whether employable or unemployable, given equal consideration for public assistance as those persons eligible for assistance under other parts of this act.”
Section 71-303, R.C.M. 1947, reads:
“71-303. Eligibility for relief — investigation of resources. An applicant for assistance including medical care and hospitalization shall be eligible to receive assistance only after investigation by the county department reveals that the income and resources are insufficient to provide the necessities of life, and assistance shall be provided to meet a minimum subsistence compatible with decency and health. ’ ’
Section 71-312, R.C.M. 1947, reads:
“71-312. Application for relief. Each applicant for general relief shall malee application to the county department of public [286]*286welfare and the application shall be made in the manner and on the form prescribed by the state department, provided, however, that no application form shall contain what is commonly known as ‘the pauper’s oath.’ All persons wishing to apply for general relief shall have the opportunity to do so.”‘
On August 19, 1959, a strike was called in the mines in Butte, Montana, and at the smelters in Anaconda and ’Great Falls, Montana, by the International Union of Mine, Mill and Smelter-workers, an unincorporated association.
This strike closed down the copper industry in the State of Montana. Employment ceased. There were and, at the time this is being written, are no more pay checks with the result that certain employable members of the union, finding themselves without sufficient funds to provide or procure the necessities of life, made application to the county department of public welfare of their respective counties and to the state department of public welfare for such assistance as should be provided to meet a minimum subsistence compatible with decency and health.
Notice and Letter of August 27, 1959. Thereafter, on August 27, 1959, and while the strike was in effect, the Montana State Department of Public Welfare, and W. J. Fouse, then and now the State Administrator of Public Welfare, issued and caused to be delivered to each and all of the county departments and boards of public welfare and to all the county and field supervisors throughout the State of Montana, the following letter and notice, viz.:
“State of Montana
“Department of Public Welfare
“Helena, Montana
“August 27, 1959
“From: State Administrator
“To: All County Boards
All County Supervisors
All Field Supervisors
“Re: General Assistance
[287]*287“At its meeting* on Tuesday, August 25, the State Welfare Board adopted the following motion:
“ ‘For counties anticipating grants-in-aid from the state department, the maximum amounts that may be allowed as general assistance to meet the needs of people who apply for general assistance as a result of the strike that now exists in the copper industry, shall be as follows:
“ ‘ 1. No assistance will be allowed to single men at this time.
“ ‘2. There will be no allowances for shelter, or utilities for any applicants at this time.
“ ‘3. Allowances for man and wife together, or other adult couples, shall not exceed $53 a month for food.
“ ‘4. Allowances for families with children will not exceed the following scale:
Family of 2 3-4-5 6 or more
Adult ..........................26.50 23.25 20.00
High School age ........31.75 28.00 24.00
Grade School age........21.25 18.50 16.00
Preschool age..............13.25 11.50 10.00
“ ‘5. Clothing allowances will be made in emergency situations for children only, on the following scale:
(a) Pre-School child ................................................$ 4.50
(b) Grade School child............................................ 8.00
(c) High School child.............................................. 12.00’
“The above motion indicates the assistance available to people who apply because of the strike. The above amounts are not intended to apply to your continuing general assistance recipients. It is expected that need for these people will be met on the basis of the standards of assistance outlined in the Manual of Policies and Procedures.
“However, because of the limited amount of money available for grants-in-aid to counties and because those idle by the strike will be in need on a temporary basis, it is felt that amounts allowed these individuals must be reduced from meeting total need.
[288]*288“It is expected that the State Board will reconsider allowances as the situation demands.
“W. J. Fouse.”
A copy of the foregoing letter and notice is made a part of and attached to the hereinafter mentioned affidavit of Ernest Salvas as Exhibit A thereof.
The applicants for assistance, under the provisions of the Public Welfare Act questioned and challenged the right and authority of the Montana State Department of Public Welfare, its members and its Administrator W. J. Fouse to make, issue and promulgate the rulings, orders, limitations and exceptions set forth in the foregoing letter and notice, which were intended to be and which were made applicable only to those persons who have applied or who will apply for “assistance as a result of the strike that now exists in the copper industry” in the State of Montana.
Applicants and potential applicants for assistance under the Public Welfare Act and eligible to receive such assistance were informed that the orders, regulations, notices, rulings, limitations and actions of the Montana State Department of Public Welfare, its members and W. J. Fouse as State Administrator of Public Welfare, so made and ordered on August 27, 1959, placed all those persons then on strike and their dependents and families in a separate and different category than that of other persons applying for and receiving public welfare assistance, but who were not involved in the copper strike, and this information, the applicants so adversely affected by the order of August 27, 1959, conveyed to the Executive Committee of the Joint Negotiating Committee of the International Union of Mine, Mill and Smelterworkers, and to Ernest Salvas, as Chairman of such executive committee.
This executive committee requested a hearing before the State Department of Public Welfare and the members of its Board, relative to the order, letter and notice of August 27,' 1959, for the purpose of discussing and considering the legality thereof [289]*289as well as the effect thereof upon the rights of the applicants for assistance who were so adversely affected by such order, letter and notice.
On September 22, 1959, the State Public Welfare Board held the hearing so requested by the Executive Committee of the Joint Negotiating Committee for the International Union of Mine, Mill and Smelterworkers, at which hearing such executive committee acted in a representative capacity for all those applicants for assistance wlm were affected by the ruling, order, letter and notice of August 27, 1959.
Section 71-306, R.C.M. 1947, reads:
“71-306. Bight of appeal and hearing. If an application for assistance under this chapter is not acted upon by the county welfare board promptly or if a decision is made with which the applicant or recipient is not satisfied, he may appeal to the state department for a fair hearing. The state department shall, upon receipt of such an appeal, give the applicant or recipient prompt notice and opportunity for a fair hearing. Individuals or committees with complaints or grievances shall have the opportunity to present their complaints or grievances to either the county board or the state department and it shall be required that due consideration shall be given all proven facts presented by such individuals or committees and the county board or the state department shall be required to relieve such situations, if not otherwise prohibited by law and to the extent of funds available. ’ ’ Emphasis supplied.
Notice and Letter of September 23, 1959. On September 23, 1959, being the day following the aforesaid hearing so held pursuant to the provisions of section 71-306, supra, the Montana State Department of Public Welfare, its members and W. J. Fouse, as State Administrator of Public Welfare, issued and caused to be delivered to all county public welfare boards and county and field supervisors a second ruling, order, letter and notice, which read as follows:
[290]*290“State of Montana
“Department of Public Welfare
“Helena, Montana
‘ ‘ September 23, 1959
“From: State Administrator
“To: All County Boards
All County Supervisors
All Field supervisors
“Re: General Assistance
“At a meeting* on Tuesday, September 22, 1959, the State Welfare Board adopted the following motion:
“ ‘Having considered the statements presented by representatives of the union now on strike in Montana and of commissioners of affected counties, and considering the present situation as a temporary, localized welfare problem, and because of the severe limitation of funds available to the State Welfare Department, and in order to protect welfare recipients throughout the state who would otherwise be in jeopardy of becoming completely without funds, and to protect the women and children of affected families by providing* some funds as long as possible, the standards set by the August Welfare Board meeting will be modified as follows :
“ ‘In counties anticipating grants-in-aid from the State Department of Public Welfare, the following allowances shall be made:
“ ‘A. All families qualifying for general relief as a result of the strike, in the copper industry shall receive public assistance at a rate not to exceed fifty percent (50 %) of the standard budget as established by the State Department of Public Welfare.
“ ‘B. All income shall be considered as resource as follows:
“ ‘ 1. Income of head of family or wife — 100 %
“ ‘ 2. Adult child in household — 50 %
“‘3. Minor child in household — 50% of all income over $30.00.
[291]*291“ ‘C. Each, family shall be allowed to retain cash or negotiable instruments to a maximum of $300.00 for their emergency needs.
“ ‘D. There will be no assistance allowed to single men at this time, as food is being furnished to single men by the union.’
“The State Board will reconsider this policy as the situation demands and as funds are available.
“/s/W. J. Eouse.”
A copy of the above-quoted letter and notice is marked Exhibit B and attached to and made a part of the hereinafter-mentioned affidavit of Ernest Salvas.
Thereafter on October 2, 1959, the State of Montana, on the relation of the relators, the Executive Committee of the Joint Negotiating Committee of the International Union of Mine, Mill and Smelterworkers, an unincorporated association, Ernest Salvas, Chairman, Maurice Powers as Secretary thereof and Barney Rask, Ray Graham, Mike Tursich and Tom Dickson, as members thereof instituted this proceeding by filing the affidavit and application of the relator, Ernest Salvas, in the district court for Silver Bow County, seeking to obtain the issuance of an alternative writ of mandate against the respondents, the Montana State Department of Public Welfare, Dr. M. F. Keller, M. W. Edwards, Mrs. Ray Nelson, Mrs. Dan Williams and H. A. Tibbals, as members thereof and W. J. Fouse, as State Administrator of Public Welfare, to compel and require the respondent department and board, the members thereof and the respondent State Administrator to order, authorize and allow applicants and/or recipients for or of general relief assistance who reside in counties anticipating grants-in-aid and those individuals or families who are affected by the present conditions in the copper industry to receive general relief assistance according to the rules, regulations and schedule of benefits granted other general relief applicants within the State of Montana and affording them equal rights under said rules and regulations [292]*292and general relief assistance which is compatible with standards of decency and health and in the manner and form prescribed by the laws of the State of Montana, or to show cause why they should not do so, and upon final determination of this cause, for the relators to have judgment for costs of this action, and a reasonable attorney fee, together with such other and further relief as to the court may seem meet and equitable in the premises.
On October 2, 1959, upon the filing and presentation to him of the aforesaid affidavit, application and petition of Ernest Salvas for the granting of a writ of mandate, the Honorable T. E. Downey, district judge presiding, made his certain order granting relators’ application, pursuant to which order an alternative writ of mandate directed to and against respondents then and there issued.
On October 13, 1959, Judge Downey granted leave to the relators to amend their original affidavit and application for the issuance of the alternative writ of mandate and also granted leave to relators to file supplemental affidavits herein in support of their application for the writ.
Motion to Quash. Also on October 13, 1959, the respondent, W. J. Fouse, as State Administrator of Public Welfare, by his counsel, Thomas H. Mahan, Esq., appeared in the proceeding by serving and filing a motion to quash the alternative writ of mandate so issued herein, resting his motion on the one and only contention “that neither the affidavit nor the alternative writ state facts showing that the relators are entitled to a writ of mandate as prayed, or any relief whatever.”
Affidavit and Application of William Gatley. On October 14, 1959, one William Gatley, an individual and as a party beneficially interested in the action and proceedings so instituted in the district court for Silver Bow County, filed therein his certain affidavit and application for the issuance of an alternative writ of mandate to be directed to and against the same [293]*293respondents named in the alternative writ theretofore issued on October 2, 1959.
In his affidavit and application for an alternative writ of mandate, the relator, William Gatley, inter alia, swore:
That he made his affidavit on behalf of himself and as an individual entitled to receive general relief assistance from the Montana State Department of Public Welfare; that he also made such affidavit on behalf of all those beneficially interested herein and for the purpose of requesting the district court to order an alternative writ of mandate against the above-named respondents herein; that the affiant Gatley is a member of the International Union of Mine, Mill and Smelterworkers, and a member of Butte Miners Union No. 1 of the City of Butte, County of Silver Bow, State of Montana, and that as a member of such union he is adversely affected by the conditions now prevailing in the copper industry, and due to such conditions he is presently unemployed, and is in need;
That the affiant Gatley is a resident of the City of Butte, County of Silver Bow, State of Montana; that he is a married man and has four children born as the issue of his said marriage, which children are dependent upon him for their support and maintenance;
That the affiant Gatley has applied for general relief assistance at the office of the Public Welfare Department located in the courthouse in the City of Butte, County of Silver Bow, State of Montana, and requested the respondent Board, its agents, officers and servants that he, the affiant Gatley, be granted general relief assistance in accordance with the general relief schedule adopted by the Montana State Board of Public Welfare, but that his request was refused and he was granted general relief assistance in accordance with those rules and regulations contained in Exhibit B of the affidavit of Ernest Salvas, on file and of record herein as per the Montana State Department of Public Welfare’s above-quoted letter and notice of September 23, 1959;
[294]*294That the respondents have and that they will continue to enforce the order set forth in the aforesaid letter and notice of September 23, 1959, unless compelled to do' otherwise and that respondents will continue to discriminate against the affiant Gatley and against those similarly situated and of the same class as the affiant Gatley; that respondents will continue to arbitrarily refuse, without cause, to give the affiant Gatley, and other such citizens, residents, applicants and members of the International Union of Mine, Mill and Smelterworkers and of Butte Miners Union No. 1, equal general relief assistance according to the standard schedule of the respondent State Board; that such reduced assistance is not sufficient to meet a minimum subsistence compatible with decency and health, and respondents will continue to arbitrarily consider family income contrary to the law in such case provided and continue to arbitrarily deny assistance in accordance with the law in such case made and provided both in form and amount;
That the question presented in these proceedings is one of particular interest to the affiant Gatley and also of general interest to all the membership of the International Union of Mine, Mill and Smelterworkers, and particularly to the members of the Butte Miners Union No. 1, who are applicants or recipients of general relief assistance; that the number of members of the unions so interested is numerous and affects all in the same manner; that it is impractical to bring all of the members of said union so affected before the court as individual plaintiffs and therefore, in addition to the affidavit by Ernest Salvas on file herein, the affiant Gatley makes his separate affidavit for the purpose of bringing this matter to the court, and for the specific benefit of the individual affiant Gatley and others so adversely affected;
That the arbitrary and capricious refusal of the respondent Board, has, and will continue to cause great and irreparable loss and damage to the affiant Gatley, who is an applicant and/or recipient of general relief assistance and who, were it not [295]*295for being affected by tbe economic conditions now prevailing in the copper industry would be entitled to full general relief assistance as adopted by the respondent Board;
That relators have been compelled to secure the assistance of an attorney in the bringing and prosecution of this action and proceeding and compelled to incur expenses therefor, and that the relators therefore request that the court fix and allow relators a reasonable amount for such attorney fees in bringing this action; and
That there is no plain, speedy and adequate remedy in the ordinary course of the law whereby the respondent Board, its officers, agents and representatives, can be compelled to grant the affiant Gatley, general relief assistance in accordance with the law in such cases made and provided, and similarly those of the same class and so situate as the affiant Gatley.
Order granting Alternative Writ of Mandate. On October 14, 1959, Judge Downey made and filed an order wherein it is recited that “upon reading and filing the affidavit of William Gatley, a party beneficially interested herein that the defendants refused to authorize and allow the said William Gatley general relief assistance or equal general relief assistance with others who receive such in the State of Montana, and it appearing that an Alternative Writ of Mandate should issue herein and that Relators have no plain, speedy or adequate remedy in the ordinary course of law.
“Now, Therefore, It Is Hereby Ordered, and this does Order, that an Alternative Writ of Mandate in due form of law issue, requiring the Defendants to authorize and allow residents of those counties anticipating grants-in-aid from the Montana State Department of Public Welfare, and particularly to William Gatley, equal general relief assistance, within the State of Montana, or that they show cause before this Court in division No. 2, in the Courthouse of the City of Butte, County of Silver Bow, State of Montana, on the 22nd day of October, A. D. 1959, at the [296]*296hour of 10:00 o ’clock A. M. of said day, why they have not done so.
“The Clerk of this Court is hereby directed to issue said Alternative Writ of Mandate.
“Done and Dated this 14th day of October, A. D. 1959.
“/s/ T. E. Downey, District Judge.”
Pursuant to, and in conformity with, the foregoing order an alternative writ of mandate was issued and served upon the respondents.
On October 22, 1959, being the return day fixed in the alternative writ of mandate, so issued, none of the respondents were present in person in the district court, but each respondent was there represented by respondents’ counsel, Thomas H. Mahan, Special Assistant Attorney General for the State of Montana, who then and there served and filed two separate motions to quash the alternative writ of mandate so issued, each motion being based solely upon said counsel’s one and only contention “that neither the affidavits herein nor the alternative writ state facts showing that the relators are entitled to a writ of mandate as prayed or any relief whatsoever.” One motion to quash was made on behalf of the respondent, W. J. Fouse, as State Administrator of Public Welfare, separately and alone. The other motion to quash was made jointly on behalf of the remaining respondents, viz.: The Montana State Department of Public Welfare and Dr. M. F. Keller, M. W. Edwards, Mrs. Ray Nelson, Mrs. Dan Williams and H. A. Tibbals, as members thereof, comprising the State Board of Public Welfare of the State of Montana.
On application therefor, and leave granted by the district court, the application for the writ and for other relief was amended to include William Gatley, an individual and as a relator herein.
On October 22, 1959, at the time set for hearing the respondents ’ return to the alternative writ of mandate, the cause came regularly on for trial before the Honorable T. E. Downey, dis[297]*297trict judge presiding, without a jury, William C. Brolin, Esq., and Thomas C. Malee, Esq., appearing as counsel for relators and Thomas H. Mahan, Esq., appearing as counsel for the respondents, whereupon the court proceeded as follows:
“The Court: Are the parties ready for trial?
“Mr. Malee: Relators are ready, your Honor.
“Mr. Mahan: Defendants are ready, your Honor. I have served and filed two additional Motions to' Quash, since the Court issued another Writ of Mandate, to protect our interest, we filed new Motions to Quash and at this time, I would like to submit ten points on my Motions and then argue each point separately.
“The Court: All right, proceed.”
Whereupon counsel Mahan argued for the allowance of the motions to quash and counsel Malee argued for the denial of such motions. At the conclusion of the oral arguments, the following proceedings were had:
‘ ‘ The Court: At this time, the Motion to Quash is denied.
“Mr. Mahan: The defendants will stand on their Motion to Quash and refuse to plead further.
“The Court: Do you wish an exception?
“Mr. Mahan: Exception, your Honor.
“The Court: How much time do you want to prepare your bill of exceptions?
“Mr. Mahan: Eight days, your Honor.
“The Court: Very well, 8 days will be all right.
“Mr. Malee: We will proceed, then.”
Thereupon, the relator, William Gatley, the relator, Ernest Salvas, and the witnesses, Jack McAndrews and Raymond E. Graham, were called, sworn, examined and each testified as a witness on behalf of the relators. In addition, three documents were offered by relators and marked, admitted and received in evidence as original exhibits in support of relators’ application for relief.
At the conclusion of the testimony of the relators’ last wit[298]*298ness, Ernest Salvas, he was excused, whereupon the trial ended as follows:
“Mr. Malee: The Relators rest, your Honor.
“The Court: Let the record show counsel for respondents’ refusal to present any evidence. The matter will be taken under advisement.
“Mr. Malee: Mr. Mahan, in this matter, we have asked for attorneys’ fees and we will leave that up to1 the Court, or if you wish, we will put on our proof.
“Mr. Mahan: No, I will leave that up to the Court.
‘ ‘ The Court: Let the record show it is stipulated the matter of granting attorneys’ fees is left to the discretion of the Court as to the value. The matter will be taken under advisement. ’ ’
The respondents filed no answer to relators’ applications for a writ of mandate nor to the affidavits filed by the relators in support of such applications. The respondents called no witnesses and they introduced no evidence whatever in the trial court.
On October 29, 1959, the trial court filed and caused to be entered its final judgment herein which, omitting the title of the court and cause, reads:
“Judgment Granting Peremptory Writ of Mandate
“An Alternative Writ of Mandate and Order to Show Cause having issued herein on the 14th day of October, 1959, in the above-entitled matter and the same having come regularly before me for hearing on the 22nd day of October, 1959, at the hour of 10:00 o’clock A. M. in Department No. 2 of the above-entitled court, pursuant to said Order to Show Cause, so issued in connection with said Alternative Writ of Mandate, William A. Brolin and Thomas C. Malee, Esqs., appearing as attorneys for Relators and Thomas Mahan, Esq., appearing as attorney for defendants, at which time a Motion to Quash was argued and by the Court denied, and counsel for the defendants elected to stand on said Motion, and hearing on said Order for Writ came ■on for hearing, no Answer by the defendants having been filed [299]*299and the matter submitted upon the pleadings of the Relators, together with oral evidence taken in their behalf and exhibits introduced upon their behalf and the matter was then submitted to the Court for its decision and determination, and by the Court taken under advisement. The Court being now fully advised as to the law and the facts in the premises, finds and orders that a peremptory writ of mandate should be issued in the premises and that said Relators have no plain, speedy or adequate remedy in the ordinary course of law;
“It Is Hereby Ordered, and this Does Order, that a Peremptory Writ of Mandate in due form of law be issued requiring the defendants to rescind their orders of August 25 and September 22, A. D. 1959, with reference to the relief to be granted to those residents of those counties anticipating grants-in-aid to those individuals or families affected by the strike in the copper industry; and particularly to the families and members of the International Union of Mine, Mill and Smelterworkers, an unincorporated association, and said defendants are hereby Ordered to grant to said members and their families herein mentioned, the same general relief assistance accorded to applicants and recipients for general relief in the same class as the members herein mentioned and to grant them the same equal rights under said rules and regulations and general relief assistance which is compatible with standards of decency and health and in the manner and form prescribed by the laws of the State of Montana, and any member or members of said Union are not to be discriminated against solely upon the fact that they are a member of said Union and at the present time unemployed by reason of a strike by the members of their union in various cities in the State of Montana.
“It Is Further Ordered, Adjudged and Decreed that a Writ of Mandate be issued by the Clerk of this Court and under the seal thereof, commanding the Montana State Department of Public Welfare, Dr. M. F. Keller, M. W. Edwards, Mrs. Ray Nelson, Mrs. Dan Williams and H. A. Tibbals, as members there[300]*300of, and W. J. Fouse, as State Administrator of Public Welfare, comprising- the State Board of Public Welfare of the State of Montana, to immediately rescind their previous orders, wherein the individuals and members of that class of individuals involved in this action are to receive less general relief assistance than other general relief recipients in the same class within the State of Montana and to make such arrangements and provisions therefor as required by law.
“It Is Further Ordered that defendants make known to this Court on the 6th day of November, 1959, how they have executed this Writ and have with them, then and there, this Writ.
“It Is Further Ordered and Decreed that the Relators have and recover of and from the State of Montana, their costs and disbursements necessarily incurred in this action, and It Is Further Ordered that the Relators have and recover from the State of Montana, the sum of One Thousand ($1,000.00) Dollars, it appearing- that the Relators have suffered damage in that amount to date, by reason of the necessity on their part of employing counsel to represent them herein and it appearing to the Court that the respondents appeared and made defense in this proceeding- in good faith.
“Dated this 28th day of October, 1959.
“/s/ T. E. Downey, District Judge.
“Filed: October 29, 1959.”
The Appeal. On November 4, 1959, the respondents appealed to this court from the foregoing order and judgment so given, made and entered.
The Evidence. Ample proof to sustain the above-quoted order and judgment was supplied by the following uncontroverted testimony given, without objection, by the relator, William C-atley, at the October 22, 1959, hearing before District Judge T. E. Downey, as shown by the record now before this court, viz.:
[301]*301“William Gatley, one of the Relators, being first duly sworn, testified as follows, to-wit:
“Direct Examination by Mr. Thomas Malee:
“Q. State your name, please? A. William Gatley.
‘ ‘ Q. Are you the William Gatley who appears as a relator in the ease before the Court? A. I am.
“Q. Mr. Gatley, have you needed and required relief! A. I have.
“Q. That was by reason of necessity? A. Yes.
“Q. Have you made your application for such relief? A. Yes, I have.
“Q. Did you receive relief? A. Yes, I received some help.
“Q. Will you explain to the Court the circumstances under which you received this relief? A. Well, being out of work, I applied for it in August and I received help in September.
“Q. In September? A. Yes.
1 ‘ Q. Have you subsequently; and after the order that we have alleged here to be illegal, made application for relief? A. Yes.
“Q. Were you advised- — what advice was given to you concerning your relief thereafter? A. Well, that I was to get 50 percent.
“Q. You were no longer entitled to the relief you had formerly gotten? A. I got 50 percent yes.
“Q. Had you received relief in that proportion since? A. Yes, I received it on October 5th.
“Q. That was on the basis of 50 percent of what others in like position would have received? A. Yes.
‘ ‘ Q. Now, Mr. Gatley, what was your business or occupation ? A. Miner.
“Q. At the present time, are you now employed ? A. No.
“Q. Will you state to the Court the reason for your unemployment? A. We are on strike.
“Q. You are on strike? A. Yes.
‘ ‘ Q. Do you belong to any organization or organizations with [302]*302relation to labor? A. The International Mine, Mill and Smelter-workers and Local No. 1.
“Q. After you were denied relief, did you, by any means, appear before the State Welfare Board to protest their action? A. No, I protested through our joint negotiating organizations.
‘ ‘ Q. Now, Mr. Gatley, did you authorize the negotiations committee of the International Union of Mine, Mill and Smelter-workers to appear for you? A. Yes, I did.
“Q. Did you request that they do so? A. Yes, I did.
“Q. Were there others that did likewise? A. There’s lots of them — over 1200 men in our union hall at one meeting that authorized them.
“Q. The authority for the committees appearance before the State Board was given personally by you and by others? A. Yes.
“Q. They were authorized then, to protest the ruling concerning your treatment before the board? A. Yes.
“ Q. Do you know whether they did that ? A. They appeared here — this is the first time I had been on, but they’ve got my authority to go ahead and appear here on the 13th, I guess, the first time.
“Q. Do you know whether or not the committee, in compliance with your request, did make a protest to the state board? A. I don’t know if they made one separate on my case or not.
“Q. No, no, on conjunction with all, did they make a protest? A. Oh, they’ve protested all the eases.
“Q. In your affidavit, you have alleged that occurred on September 22nd, 1959, is that correct? A. Yes.
“Q. You knew they were going to make this protest? A. Yes.
“Q. And at your request? A. Yes.
“Q. And with your consent ? A. Yes.
“Q. Since that time, your relief orders have been 50% of what they would otherwise have been? A. Yes.
[303]*303“Q. And you have been so ordered by the Board that this would continue, is that correct ? A. That was my orders.
‘ ‘ Q. That is all.
“Mr. Mahan: No cross-examination.
“Witness, William Gatley, Excused.”
As before noted, at the hearing of October 22, 1959, before Judge Downey, the respondents, through their counsel, Thomas H. Mahan, Esq., expressly elected to rest their case and to stand solely upon their motions to quash the alternative writ of mandate theretofore issued without pleading further or introducing any evidence whatsoever.
As was said by this court in State ex rel. Du Fresne v. Leslie, 100 Mont. 449, at page 452, 50 Pac. (2d) 959, at page 961, 101 A.L.R. 1329, a mandamus1 proceeding: “The motion to quash, being equivalent to a general demurrer, brings the controversy before us on the law.”
In Bailey v. Edwards, 47 Mont. 363, at pages 371, 372, 133 Pac. 1095, at page 1097, this court said:
‘ ‘ The chapter of our Code relating to mandamus has been part of our written law since the territory was organized (Bannack Statutes, p. 123, et seq.; Codified Stats. 1872, p. 206 et seq.; Rev. Stats. 1879, p. 142 et seq.; Comp. Stats. 1887, p. 206 et seq.; Code Civ. Proc. 1895, sec. 1960 et seq.); and very early in our history it was settled that mandamus is not a civil action and that the Statute of Anne is not in force with us (Chumasero v. Potts, 2 Mont. 242, 258, et seq.; Territory ex rel. Tanner v. Potts, 3 Mont. 364, 366). In Chumasero v. Potts, this court, touching the nature of mandamus said: ‘To call this an action or suit at law would certainly be a misnomer. * # * The manner in which the term civil action is used in these two sections [sections 522, 529, Civil Practice Act, 1872; Rev. Codes 1907, sees. 7218, 7225] shows conclusively that our legislative assembly did not consider that the proceedings in mandamus were a civil action. * * * The civil action * * * has reference exclusively to private * * * wrongs. * * * What is the nature of the proceeding [304]*304called mandamus? “It is not applicable as a redress for mere private wrongs. ” * * * It can be resorted to only in those cases where the matter in dispute, in theory concerns the public and in which the public has an interest. * * * The enforcement of the writ may incidentally, and as a result, affect private rights, but this is not the prime object of the issuance of the writ. * * * The attempt to classify the proceedings in mandamus is always futile. It is sui generis. Undoubtedly it may be called an extraordinary legal remedy, civil in its nature. * # *’ But, ‘being a remedy to enforce public rights and not for the enforcement of private rights or the prevention or redress of private wrongs, it is not a civil action.’ Again, in the recent ease of State ex rel. Stuewe v. Hindson, 44 Mont. 429, 442, 120 Pac. 485, we find the following*: ‘This proceeding is essentially ex relatione. While Stuewe is nominally the complaining party, the taxpayers of Lewis and Clark county constitute the real party in interest; and if it can be said that from the allegations contained in the affidavit and the alternative writ the taxpayers of the county are entitled to relief of any character, 'which can be granted in this proceeding, it is the duty of the courts to extend that relief, whether this relator individually desires it, or the Attorney General opposes it. In our determination, we are not bound by the prayer of the relator, but may search the affidavit, and order such relief as the facts stated may warrant; for the relief is granted, not to Stuewe individually, but to the public, the real party in interest.’ Inferences, therefore, founded upon the Statute of Anne or upon the hypothesis that mwidmius is a civil action, can have no validity to require such a construction •of section 7224, Revised Codes, as respondent here seeks to evoke. ’ ’
In State ex rel. Grant v. Eaton, 114 Mont. 199, at pages 203, 204, 133 Pac. (2d) 588, at page 590, a mandamus proceeding, this court said: ‘ ‘ The respondents, represented by the Attorney General, have filed motions to quash upon the ground that the facts stated in the petition and the alternative writ are insuf[305]*305fieient to constitute a cause of action or to show that relator is entitled to a writ of mandate. The facts as stated * * * stand uncontroverted. The controversy is thus brought to this court on the law.”
In State ex rel. Opheim v. State Fish and Game Commission, 133 Mont. 362, 323 Pac. (2d) 1116, 1118, a mandamus proceeding, this court said: “The motion to quash here performs the function of a general demurrer and brings the controversy before the court on the law.”
The Question. The question presented to this court by this appeal, simply stated, is: Do the relators’ applications fully supported by the testimony introduced by them state and show relators to be entitled to the writ issued and the judgment entered herein?
Our answer must be and it is in the affirmative.
This proceeding does not attempt to control the Welfare Department’s discretion, except insofar as it asks that the department obey the clear command of the statutes. There are many factors that must be taken into consideration to determine what amount of relief assistance any applicant will receive. This proceeding does not seek to command or control the discretion of the Public Welfare Board over the usual and ordinary factors lawfully influencing the amount of assistance which an applicant may be entitled to receive. Admittedly married couples may receive more than single persons and the age of children in equal sized families may determine that one family be given more assistance than another.
What this proceeding seeks is equal consideration for persons equally situated. The statutes so demand and command that the Welfare Act must be administered on an equal basis to all. This proceeding seeks enforcement of that which the statutes set out as a right of the welfare recipient. It seeks to prevent the State Welfare Board from discriminating against welfare recipients because of the source of their unemployment and cause or reasons for welfare need. Nothing in the law gives the State Wei-[306]*306fare Board the right to discriminate against the applicants for relief upon such grounds or for such reasons. The orders of the State Welfare Board of which complaint is here made were and are discriminatory and illegal. Such rulings and orders ignored and denied to these relators the plain legal rights expressly accorded them under the provisions of the Welfare Act.
It is ordered that the judgment and order given and made herein by District Judge T. E. Downey, in and for the District Court for Silver Bow County, on October 22, 1959, be and the same are hereby, affirmed in ioto.
MR. JUSTICE BOTTOMRY concurs.