The opinion
I do not concur in the conclusion reached in the majority opinion. It can no more be said that the act attempts to confer ministerial or executive duties upon the circuit court than does the Workmen's Compensation act under which the matters of compensation are first determined by a non-judicial board. The fact that the hearing is said to be de novo in nowise renders this act different, in this particular, from the Workmen's Compensation act. Under the latter act the circuit court, on certiorari , may hear additional evidence. The clearly expressed purpose, and the only purpose, of the provision of section 10, which the majority opinion holds to be invalid, is to review the action of the Department of Public Welfare. No action may be had in the circuit court until that department has acted. It cannot be doubted that mandamus would lie to compel, in a proper case, the granting of this relief, yet the exercise of jurisdiction of the court under this act is no more an executive or ministerial function than mandamus would be. It was evidently the purpose of the legislature to prevent the application for assistance by old and needy citizens becoming a matter of the arbitrary whim of the Department of Public Welfare or the imposition of political pressure upon applicants. I know of no other case where the courts have been declared closed in such a matter.
I am further of the opinion that the language of the act itself clearly demonstrates that the General Assembly would not have enacted this legislation without providing an opportunity for appeal to the courts, and, this being so, it follows under undoubted and undisputed rules of law, that the invalidity of the provision of section 10, here attacked, renders the entire act invalid. Yet that is not the holding of the majority opinion. *Page 436