The opinion
RILEY, J.
(dissenting). I would not be averse to a modification of the trial court’s judgment limited to the extent that peremptory writ of mandamus be held in abeyance pending exhaustion of the administrative remedies by petitioner below, Thompson, but I cannot sanction the directed dismissal of the action. The Oklahoma Public Welfare Commission, at most, is but an administrative agency of the state government (section 3, art. 25, Constitution, adopted July 7, 1936,-' Okla. St. Ann, Const:, p. 373). Like unto an individual citizen, it is not above the law, but subject -to the lot of humanity: error.
Herein the. trial court attributed arbi-' trary action to this agency: The evi-, dence of record supports the view.
Epitomized, the agreed facts are:
Prior to August 25, 1938, the name of George M. Thompson, of Pawnee county, was upon the assistance rolls as provided by the Oklahoma Social Security Act (art. 4, sec. 24, S. L. 1936, 56 Okla'. St. Ann. §§ 161-189) and he received a grant of $11 pér month, and possessed all legal requirements for the grant (seel 4 of the act), but the county board recommended cancellation of the grant. The commission approved the recommendation, and payment ceased August 25, 1938.
The agreed reason for the approved recommendation of removal' of the name’ from the rolls -ánd cessation1 of payment is “that he (Thompson) has relatives-able and willing'to support him.” Contrariwise, in effect', form, and substance, it was agreed below, in writing, that Thompson did not have relatives able and willing to support him, that’he was an elderly person, living in a “bunkhouse—utility provided,” and the limited ability of relatives to give Thompson support was shown by contributions of a 65 cent shirt on October 20, 1938, two suits of underwear valued at $1.50, and a necktie of the-value of 25 cents contributed on Christmas Day, also some food and a pair of blankets. These things were furnished by two daughters who were likewise agreed to be without means .and themselves unable to support their father.
The commission pleaded below that the recommendation and order aforesaid, -so agreed to be erroneous, was res adjudicate and' conclusive. Wherefore, it was urged, the petitioner could not resort to the courts for relief, but was to be limited to administrative consideration.
Such bureaucratic government is antagonistic to the American way, for there is planted in Magna Carta and fully de
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veloped - in Oklahoma’s modern fundamental law the idea, which forms part of the. Bill of Rights (section 6, art. 2, Constitution of Oklahoma), that “The courts of justice of the state shall be open to every person, and speedy and certain remedy afforded for every wrong.”
The commission contends:
“* * * There is no constitutional right of judicial review, by mandamus or otherwise, and * * * administrative remedies afforded are exclusive.” But, while affording no relief, the majority decline to sustain this theory.
Abhorring the array of class against class, I shall not enter upon an academic discussion of the symposium of property rights Versus human rights, except for the purpose of - suggesting that the people of the state and nation, knowing Anglo-Saxon civilization was built in lar:ge-measure on the sanctity of individual-property rights, sought to ameliorate pitiful conditions of mankind, some of which were recognized in the Declaration of Independence, to elevate the lot of humanity to a plane where in governmental consideration right and justice would prevail, regardless of subject matter involved, whether it be pieces of silver or humanity.
In a measure this was the purpose of the people in adopting the constitutional amendment of July 7, 1936, and providing a Social Security for “protection” and “benefit” of the individual citizen.
Prior to that change in fundamental law, an indigent or destitute person may have had, as suggested in the brief, only a privilege to receive charity such as a benevolent individual or government saw fit to grant, and then such a person may have been limited to whatever means were selected by the donor for distribution; of alms.. Thereafter it seems certain the privilege was transformed into a right—a right to partake of that appropriated for the relief of all similarly situated. ;This government effectively said in its law:
^Assistance shall be given * * * to any citizen *• * * possessing * * * qualifications.” .
Thompson admittedly possessed all qualifications, and thus established a clear legal right to relief.
We are now concerned only with the character of relief to which Thompson is entitled. The majority predicate an opinion upon the general rule requiring exhaustion of administrative remedies as a prerequisite to relief in court. Applicability of that rule is dependent upon whether the administrative relief is adequate and appropriate. Myers v. Bethlehem Shipbuilding Corp., 303 U. S. 41 , 58 S. Ct. 459 , 82 L. Ed. 638 ; National Labor Relations Bd. v. Jones and Laughlin Steel Corp., 301 U. S. 1 , 57 S. Ct. 615 , 81 L. Ed. 893 , 108 A. L. R. 1352.
Of course, an appeal from the county board’s action here involved to the Oklahoma Public Welfare Commission, as provided by statute, sections 8 and 9 of the act, supra, is administratively appropriate. Adequacy of that relief is doubtful. Two years ago Thompson was old, infirm, and in want. It may well be expected that the life of him may be exhausted while he exhausts the administrative remedy. Under these circumstances, and in view of the agreed facts by which no elements of discretion or the exercise of judgment exist to determine whether Thompson should be upon the rolls, an exception to the general rule should be made, sustaining the trial court’s issuance of the writ of mandamus, at least the alternative writ should be maintained pending final action by the Oklahoma Public Welfare Commission. State v. Kelly (N.M.) 202 P. 524 , 21 A. L. R. 156.
My views are in accord with the Chief Justice of California and his two associates, ably expressed in Abelleria v. District Court, etc., (Cal.) 102 P. 2d 346 , that cause being quoted at length and relied upon by the majority:
“Power reposed in an administrative board does not constitute it an autocratic body to the extent that it may, uncon
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trolled and with impunity, exercise its power contrary to the provisions of the act which created it.”
I am authorized to say that Mr. Justice CORN concurs in this dissenting opinion.