LOS ANGELES COUNTY v. FRISBIE

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District Court of Appeal, Second District, Division 1, California.

LOS ANGELES COUNTY v. FRISBIE.

Civ. 13026.

Decided: August 04, 1941

J. H. O'Connor, Co. Counsel, and Gerald G. Kelly and L. K. Vobayda, Deputies Co. Counsel, all of Los Angeles, for appellant. Holbrook & Tarr, Leslie R. Tarr, and Freda B. Walbrecht, all of Los Angeles, for respondent.

In this action the County of Los Angeles seeks to recover from the estate of Mary A. Stoner, deceased, the sum of $2,236.57, together with interest thereon, for aid, hospital care, medical supplies, etc., furnished by the county to one Fay Pheysey, an adult daughter of decedent, between February 26, 1937, and April 28, 1939. Mary A. Stoner died a resident of Los Angeles county on April 28, 1939, and thereafter, upon admission of her will to probate, letters testamentary were issued to Azile M. Frisbie, defendant herein. Following the filing by such executrix of an inventory and appraisement of such estate with the probate court, the County of Los Angeles presented its amended creditor's claim in the above–mentioned amount, and the same was rejected. Thereupon this action was commenced. Defendant demurred to the amended complaint, and the demurrer was by the court sustained without leave to amend following plaintiff's refusal to further amend such pleading. From the judgment of dismissal thereupon entered the plaintiff county prosecutes this appeal.

Presented to us by this appeal are questions of the construction and interpretation of sections 2576, 2577 and 2578 of the Welfare and Institutions Code, St.1937, p. 1099. The amended complaint alleged that the County of Los Angeles rendered charity aid to Fay Pheysey, the indigent adult daughter of decedent, in the sum above mentioned; that all such aid was rendered during the lifetime of the mother, and that during the entire period over which such aid was furnished the mother was possessed of sufficient financial ability to reimburse the county in full for the aid extended. The court below sustained defendant's contentions as advanced in her demurrer, which in the main challenged the sufficiency of plaintiff's complaint to state a cause of action for the reason that there was not contained therein any allegation of the filing of a petition pursuant to the terms of section 2578 of the Welfare and Institutions Code.

The sections of the Welfare and Institutions Code with which we are here concerned are as follows:

Section 2576: “If any indigent has living within this State a spouse, parent, or adult child, and such kindred or any of them, or any group of them has sufficient financial ability to support the indigent, he shall not be eligible for aid under this chapter, except such emergency aid as may be extended hereunder pending a determination of responsibility for his support. Upon failure of such kindred to support the indigent, the county may extend aid, and such kindred in the order above named and to the extent of their ability shall reimburse the county for the support of the indigent by paying to the county the sums per month or per day fixed by the board of supervisors for such aid. In any case where such kindred are unable to pay the entire charge for such support, they shall reimburse the county to such an extent as may be determined under the provisions of this section. The board of supervisors shall, in the case of aid granted by institutional care, fix a reasonable charge therefor, which shall be the measure of reimbursement to the county, and the existence of the order fixing the charge shall constitute prima facie evidence of its reasonableness.”

Section 2577: “Upon failure of the kindred, referred to in section 2576, to perform their duty to support the indigent, the board of supervisors shall request the district attorney of the county to proceed against such kindred in the order of their responsibility for support. Upon such request the district attorney shall promptly commence and prosecute proceedings for the ascertainment and enforcement of the liability and responsibility of the kindred.”

Section 2578: “Such proceedings shall be begun by filing in the name of the county a petition verified in the manner of a complaint praying that the responsibility and liability of the named kindred be ascertained, and that an order be made accordingly. The provisions of Titles I to IX, inclusive, of Part II of the Code of Civil Procedure shall apply to the proceedings in such action and the court shall therein determine the liability, if any, of each of the kindred for such support. The court shall, in such action, ascertain the financial ability of the defendants and each of them, and unless it finds that a defendant is unable to pay any sum for support, either because of lack of sufficient funds or because such payment would result in the probability of the defendant becoming at some future time a public charge, the court shall order each defendant to pay to the county a proper proportion, if any, of his liability for the support of the indigent. If any relative or group of relatives has sufficient financial ability to support the indigent no relative beyond him or them in the order named in section 2576 shall be ordered to pay any portion of the support. The order of the court shall specify that a given sum shall be payable monthly in advance to the board of supervisors or its designated social agency for the entire or partial maintenance of the defendant's indigent relative in accordance with the defendant's financial ability.”

Appellant county contends that the foregoing sections give it two separate causes of action, viz., (1) an action against a responsible relative for reimbursement for charity aid rendered by the county to the indigent, and (2) a proceeding by the county against the legally responsible kindred to obtain court orders for future monthly support, whereby said kindred is to pay the county in advance the aid which the county will have to pay the indigent. In other words, appellant county claims that the two actions given it by sections 2576 and 2578 are, by the former, an action to recover by way of reimbursement for moneys expended for charity aid, and by the latter an action to proceed by petition to obtain a court order directing future periodical payments by the liable kindred to the county to be disbursed by the latter.

Appellant's contention cannot be sustained. We find no ambiguity in the quoted sections of the Welfare and Institutions Code. When the general tenor and scope of the sections in question are considered, the intent of the legislature appears to us clear and manifest. Undoubtedly the legislature recognized that so far as the assistance of one's relatives is concerned, at common law no legal liability rested upon one relative to support another, however strong the moral duty might be, and that the duty to provide such support must arise by statute. Therefore, by section 2576 the legislature first provided that any indigent who had residing in this state relatives of certain degrees of kindred who were able to support such indigent should not be eligible for aid except emergency aid, which was to be extended only until a determination could be had of the responsibility and ability of the indigent's kindred to assume the obligations of support impressed upon them. Section 2577 then provides that when the kindred of an indigent person refuse to discharge their statutorily imposed duty to support their indigent relative, the district attorney shall, upon request of the board of supervisors, promptly commence and prosecute proceedings “for the ascertainment and enforcement of the liability and responsibility of the kindred”. Section 2578 then provides that such proceedings shall take the form of a petition praying for a judicial determination of the liability and responsibility of the kindred of the indigent; that upon the hearing of said petition the court shall “ascertain the financial ability of the defendants and each of them, and unless it finds that a defendant is unable to pay any sum for support, either because of lack of sufficient funds or because such payment would result in the probability of the defendant becoming at some future time a public charge, the court shall order each defendant to pay to the county a proper proportion, if any, of his liability for the support of the indigent”. Section 2579 then provides for proceedings to be taken in the event of noncompliance by such kindred with the court's order directing them to pay for the maintenance of the indigent relative.

Thus when read together, the Welfare and Institutions Code sections in clear, unambiguous and understandable language provide a system for establishing the liability of an indigent's kindred and for the enforcement of such liability. It seems clear to us that the legislature, by the enactment of the quoted sections, intended that before a liability to support an indigent relative arose, that liability must be fixed by a court in a proceeding brought for that purpose. Until such an adjudication of liability and ability to furnish such support has been had, the county is without authority to commence an action to recover for aid money expended by it, at least for other than “emergency aid”, and it is not here contended that the complaint alleged that the aid extended was of an emergency character. The fact that the code provisions relative to the care of juvenile delinquents, blind and aged persons contain specific authorization for the bringing of actions by the county to recover from relatives the money expended by the county for the care of such persons seems to us to add strength to the conclusion that had the legislature intended such authority in the case of indigent persons it would have so declared in the applicable sections of the Welfare and Institutions Code. Not having done so, the courts are without authority to read such a legislative intent into the language which, taken in its ordinary and general sense, forbids any such interpretation.

The serious consequences which the appellant county asserts will follow in the wake of a construction of the law to the effect that the county must file a petition to determine responsibility of relatives before instituting suit against the kindred of the indigent, are all arguments which should be addressed to the legislature and not to the courts.

The provisions of the Welfare and Institutions Code with which we are here concerned (secs. 2576, 2577, 2578) are prospective in their character, and do not contemplate that the county may proceed to relieve a pauper or indigent person (other than by way of emergency aid) and thereafter recover from a relative the amount so expended, but rather that when a relative fails to discharge the duty of supporting his kindred, the county must proceed by petition to have the court determine the liability of the kindred for such support and obtain from the court an order directing the payment of specific sums, which order may be enforced as provided in section 2579. It is well settled that in such cases the remedy is exclusive. The county not having utilized the remedy provided by the statute, its present action must fail. By failing to allege a compliance with the statute, the complaint fails to state a cause of action thereunder. Town of Saxville v. Bartlett, 126 Wis. 655, 105 N.W. 1052; Multnomah County v. Faling, 49 Or. 603, 91 P. 21; Howard County v. Enevoldsen, 118 Neb. 222, 224 N.W. 280; Pinel v. Rapid R. System, 184 Mich. 169, 150 N.W. 897; 46 Cor.Jur., p. 1270.

Several reasons suggest themselves as to why the legislature might require as a prerequisite to the establishment of liability of kindred for the support of indigent relatives that a petition must be filed “for the ascertainment and enforcement of the liability and responsibility of the kindred”. In every instance the indigent person is neither aged nor infirm, but able–bodied and willing to work if afforded that opportunity. Such opportunity might well be provided by kindred if advised of the impecunious condition of their relative. Again, a very evident purpose of the summary proceeding is to distribute the liability among all responsible kindred of a given group who may be able to pay, and as the statute provides, “The court shall order each defendant to pay to the county a proper proportion, if any, of his liability for the support of the indigent.”

Furthermore, section 2576 of the Welfare and Institutions Code expressly declares that “if any indigent has living within this State a spouse, parent, or adult child, and such kindred, or any of them, or any group of them has sufficient financial ability to support the indigent, he shall not be eligible for aid under this chapter, except such emergency aid as may be extended hereunder pending a determination of responsibility for his support”. The amended complaint in the instant case specifically and directly alleges “that during the time aid and relief was furnished by the plaintiff to said Fay Pheysey, the said Mary A. Stoner had sufficient financial ability to reimburse plaintiff in full for the aid extended her said daughter as aforesaid, in that the said Mary A. Stoner was the owner of real property of the reasonable market value of $5,600, and personal property of the reasonable market value of $275, and all said property is now in the estate of said decedent”. Upon such a state of the pleadings, it affirmatively appears that the indigent was not entitled to the aid or relief furnished, except such portion thereof as may have been “emergency aid”, and there is no averment in the complaint that any of it was. Under the circumstances last mentioned, it can only be assumed that the aid given was advanced gratuitously and voluntarily by the county.

Finally, appellant county contends that in enacting in the statutes of 1933, page 2007, the clause (sec. 13) purportedly repealing the statute of 1901, page 636, the legislature failed to comply with section 24, article IV of the Constitution, which relates to the manner of expressing the subject of an act in its title. So far as here pertinent, the cited constitutional section provides that “Every Act shall embrace but one subject, which subject shall be expressed in its title”. Section 7 of the statutes of 1901, page 636, definitely gives the county a cause of action based upon a debt to recover from financially able kindred, moneys advanced as aid to an indigent relative of such kindred. The title of the act contained in the statutes of 1933, page 2005, is as follows: “An act to provide for the aid and relief of indigents.” Section 13 of the last–named act reads as follows: “An act entitled ‘An act to provide for the maintenance and support, in certain cases of indigent, incompetent and incapacitated persons (other than persons adjudged insane and confined within State hospitals), becoming a public charge upon the counties or cities and counties within the State of California, and for the payment thereof into a fund for the maintenance and support of such persons,’ approved March 23, 1901, is hereby repealed.”

Appellant argues that sections 2576 and 2577 of the Welfare and Institutions Code, with which we are here concerned, being a restatement of the statutes of 1933, page 2005, and being in conflict with section 7 of the statutes of 1901, page 636, which gave a cause of action to the county to recover as a debt aid money advanced to an indigent, the last–named section 7 of the statutes of 1901, page 636, is still in effect, and the attempted repeal thereof is void as violative of section 24 of article IV of the Constitution. The language contained in Haverstick v. Southern Pacific Co., 1 Cal.App.2d 605, 614, 37 P.2d 146, relied upon by appellant, is merely dicta used in the course of an opinion, hazarding the possibility that a certain statute was not repealed because the repeal was not mentioned in the title of the repealing act. The other case cited by appellant, City of Los Angeles v. Hance, 122 Cal. 77, 78, 54 P. 387, does not expressly hold that the repealing act must state the intention to repeal in its title, but says, “The subject of the repealing act” (authorizing a certain class of cities to refund indebtedness) “as expressed in its title, is entirely foreign to the subject of the section attempted to be repealed” (an act authorizing the incurring of indebtedness), “and the question to be determined is whether an act or part of an act can be repealed when the title of the repealing act announces no such intention, and when the repeal of the existing law would have no effect one way or another upon the operation of the new law.” In such case, the court held, no repeal is effected.

In our opinion the act of 1933, page 2005, which repealed the statutes of 1901, page 636, is free from the constitutional objection urged by appellant. The purpose and intent of section 24 of article IV of the Constitution was thus set forth in Lewis v. Dunne, 134 Cal. 291, 66 P. 478, 480, 55 L.R.A. 833, 86 Am.St.Rep. 257: “* * * whatever considerations led up to its adoption, it is clear that its direct and immediate purpose was that the title should, on its face, give at least some sort of information as to what the proposed act was about.” The main object of the constitutional provision being to prevent legislators and the public from being entrapped by misleading titles to bills, whereby legislation relating to one subject might be obtained under the title of another, it has been held that the provision is not to receive a narrow or technical construction in all cases, but is to be construed liberally to uphold proper legislation, all parts of which are reasonably germane. Evans v. Superior Court, 215 Cal. 58, 62, 8 P.2d 467, 469. As is stated in the case just cited, “The provision was not enacted to provide means for the overthrow of legitimate legislation.” However numerous may be the provisions of an act, if they have one general object, fairly indicated in the title, they may be united in one act, the rule in that regard being thus epitomized in Evans v. Superior Court, supra: “The Legislature may insert in a single act all legislation germane to the general subject as expressed in its title and within the field of legislation suggested thereby.” And further it is therein stated: “A provision which conduces to the act, or which is auxiliary to and promotive of its main purpose, or has a necessary and natural connection with such purpose, is germane within the rule.” When the legislature adopted the statutes of 1933, page 2005, under the title, “An act to provide for the aid and relief of indigents”, it must certainly be assumed that a clause therein providing for the repeal of a previous act in conflict therewith is most germane to the general subject embraced in the all–inclusive title expressed in the subsequent act; that it is necessarily promotive of the main purpose of the act; has a necessary and natural connection with the purpose of, is auxiliary to, and promotive of the main purpose of the subsequent act, and possesses a necessary and natural connection with such purpose. We therefore hold that the statutes of 1933, page 2005, do not contravene the provisions of section 24 of article IV of our Constitution, because as stated in Evans v. Superior Court, supra, 215 Cal. at page 65, 8 P.2d at page 470, “The repeal of other statutes dealing with the same subject is germane to the purpose of any act.” Without doubt, the statute of 1933, page 2005, and the repealed statute of 1901, page 636, dealt with the same subject–matter, that is, the aid and relief of indigents.

For the foregoing reasons, the judgment is affirmed.

WHITE, Justice.

We concur: YORK, P. J.; DORAN, J.