SUTPHEN, District Judge.
The State of Idaho, on relation of its State Auditor and Commissioner of the De
partment of Public Assistance, brought this action against the executor of the estate of Frans G. Magnus, deceased, to recover amounts paid in old-age assistance to decedent during his lifetime and does not involve in the slightest what should be taken into consideration in the initial award of old-age assistance; therefore, authorities involving such questions are not in point herein.
The complaint, in brief, sets forth: that Frans G. Magnus during his lifetime made application for and was granted old-age assistance; that commencing in March 1943 the Department of Public Assistance paid him, in monthly installments each month to and including july 1946, the sum total of $1,651; that Frans G. Magnus died testate August 1, 1946, leaving an estate; that respondent was duly appointed and qualified as executor of the estate; that appellant duly filed claim with the executor for the amount of assistance paid; that the executor rejected the claim, and this suit properly ensued as provided by section 15-609, I. C. A. Idaho Trust Co. v. Miller, 16 Idaho 308, 102 P. 360.
The trial court sustained respondent’s demurrer to the complaint and dismissed the action apparently accepting respondent’s contention that the alleged transactions between the State and deceased amounted to a loan and that such a loan is unenforceable because repugnant to the inhibition contained in Section 2 of Article 8 of the Constitution of this State that: “* * * the credit of the state shall not, in any manner, be given, or loaned to, or in aid of any individuál, asociation, municipality or corporation.”
Under the common law no recovery of money paid by the State for old-age assistance was allowable where payment was not made by accident, fraud or mistake. City of Worcester v. Quinn, 304 Mass. 276, 23 N.E.2d 463, 125 A.L.R. 707. Thus, any right the appellant may have to recover in this action must be based upon our statutes.
Provision, however, for recovery against the estates of recipients has been part of the law of this State continuously since March 2, 1943, when Chapter 119 of the Laws of 1943 became effective. Section 2 of such Act added Section 24-a to the Public Assistance Law of the State and read as follows: “Section 24-a. Recovery from recipients. On the death of any recipient, the total amount of assistance paid or relief granted under this Act shall be allowed as a preferred claim against the estate of such person and shall be subject only to the expense of the last illness, funeral expenses not to exceed $100.00, and expenses of administration of said estate. No claim shall be enforced against any real estate or personal property of a recipient while such real estate is occupied by the recipient, a surviving spouse, or a dependent, but the Statute of Limitations shall not begin to run against such claim so long as the collection thereof is prohibited, as hereinabove
provided. “Such claim shall be made by the ¡county or, in cases of cooperative assistance, by the State on behalf of all partici-pants contributing to such assistance.” Chapter 119, 1943 S.L.
By an Act (Chapter 237, S.L.1947) the 1947 legislature repealed the above quoted section and in lieu thereof enacted the following provision for recovery from estates of recipients: “Section 24-a. Recovery From Estates. On the death of any recipient of old-age assistance, the total amount of assistance paid such recipeint under this act may, in the discretion of the State Department, be allowed as a claim against the estate of such person after reasonable funeral expenses, the expenses of the last illness, and the expenses of administering the estate have been paid. No claim shall be imposed against any real estate of the recipient while it is occupied as a home by a surviving spouse, or against any personal property of less that $100.00 in value. The State Department shall certify to the State Auditor the amount recovered from each estate as above provided, and a proper distribution thereof shall be made by the State Auditor in proportion to the amount of assistance contributed by the state and the federal government for such assistance.” Chapter 237, 1947 Session Laws.
' Thus, in view of the statute, the question before us is whether the granting of old-age assistance under the terms and conditions of our Public Assistance Law (S.L. 1941, Chap. 181; S.L.1943, Chap 119; S.L. 1945, Chap. 109; S.L.1947, Chap. 237) falls within the inhibitions of Section 2 of Article 8 of the Constitution of the State of Idaho.
It is insisted an action cannot be maintained against the estate of a deceased recipient for the recovery of the amount of assistance granted such recipient during his lifetime. Old-age assistance began in August, 1935, by the enactment by Congress of the Social Security Act, Title I, Chap. 531, Act of August 14, 1935, 49 U.S.Stat. at Large, p. 620, 42 U.S.C.A. § 301 et seq. Section 2 provided for old-age assistance. Paragraph (7) of Subdivision (a) — a part of Section 2 of the Social Security Act— read: “(7) Provide that, if the State or any of its political subdivisions collects from the estate of any recipient of old-age assistance any amount with respect to old-age assistance furnished him under the plan, one-half of the net amount so collected shall be promptly paid to the United States.”
It will be noted paragraph (7) did not make it mandatory upon a state or any political subdivision of a state to collect anything whatsoever from the estate of any recipient of old-age assistance. That paragraph simply provided that if a state did collect from the estate of a recipient of old-age assistance, then and in such case, one-half of the net amount collected should be promptly paid to the United States. Thus, the state was left absolutely free to determine whether it would, or would not, col
lect from the estate of a recipient, but if it decided to and did collect, then it was made mandatory that one-half of the net amount collected should be promptly paid to the United States.
About four years after the enactment of the Federal Social Security Act; to wit, August 10, 1939, the Congress amended it. By the amendment, paragraph (7) above quoted, was omitted; but a provision of similar import was included in the amendment in that 'by paragraph No. (2) of Section 303 (b) U.S.C.A. 42, it was and is provided as follows: “Provided, That any part of the amount recovered from the estate of a deceased recipient which is not in excess of the amount expended by the State or any political subdivision thereof for the funeral expenses of the deceased shall not be considered as a basis for reduction under clause (B) of this paragraph.”
In other words, by that amendment, the Congress still left a state absolutely free to collect from the estate of a deceased recipient if it chose to, but provided that any part of the amount recovered, not in excess of the amount expended for funeral expenses should not be considered as a basis for reduction under clause (B) of the same paragraph.
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SUTPHEN, District Judge.
The State of Idaho, on relation of its State Auditor and Commissioner of the De
partment of Public Assistance, brought this action against the executor of the estate of Frans G. Magnus, deceased, to recover amounts paid in old-age assistance to decedent during his lifetime and does not involve in the slightest what should be taken into consideration in the initial award of old-age assistance; therefore, authorities involving such questions are not in point herein.
The complaint, in brief, sets forth: that Frans G. Magnus during his lifetime made application for and was granted old-age assistance; that commencing in March 1943 the Department of Public Assistance paid him, in monthly installments each month to and including july 1946, the sum total of $1,651; that Frans G. Magnus died testate August 1, 1946, leaving an estate; that respondent was duly appointed and qualified as executor of the estate; that appellant duly filed claim with the executor for the amount of assistance paid; that the executor rejected the claim, and this suit properly ensued as provided by section 15-609, I. C. A. Idaho Trust Co. v. Miller, 16 Idaho 308, 102 P. 360.
The trial court sustained respondent’s demurrer to the complaint and dismissed the action apparently accepting respondent’s contention that the alleged transactions between the State and deceased amounted to a loan and that such a loan is unenforceable because repugnant to the inhibition contained in Section 2 of Article 8 of the Constitution of this State that: “* * * the credit of the state shall not, in any manner, be given, or loaned to, or in aid of any individuál, asociation, municipality or corporation.”
Under the common law no recovery of money paid by the State for old-age assistance was allowable where payment was not made by accident, fraud or mistake. City of Worcester v. Quinn, 304 Mass. 276, 23 N.E.2d 463, 125 A.L.R. 707. Thus, any right the appellant may have to recover in this action must be based upon our statutes.
Provision, however, for recovery against the estates of recipients has been part of the law of this State continuously since March 2, 1943, when Chapter 119 of the Laws of 1943 became effective. Section 2 of such Act added Section 24-a to the Public Assistance Law of the State and read as follows: “Section 24-a. Recovery from recipients. On the death of any recipient, the total amount of assistance paid or relief granted under this Act shall be allowed as a preferred claim against the estate of such person and shall be subject only to the expense of the last illness, funeral expenses not to exceed $100.00, and expenses of administration of said estate. No claim shall be enforced against any real estate or personal property of a recipient while such real estate is occupied by the recipient, a surviving spouse, or a dependent, but the Statute of Limitations shall not begin to run against such claim so long as the collection thereof is prohibited, as hereinabove
provided. “Such claim shall be made by the ¡county or, in cases of cooperative assistance, by the State on behalf of all partici-pants contributing to such assistance.” Chapter 119, 1943 S.L.
By an Act (Chapter 237, S.L.1947) the 1947 legislature repealed the above quoted section and in lieu thereof enacted the following provision for recovery from estates of recipients: “Section 24-a. Recovery From Estates. On the death of any recipient of old-age assistance, the total amount of assistance paid such recipeint under this act may, in the discretion of the State Department, be allowed as a claim against the estate of such person after reasonable funeral expenses, the expenses of the last illness, and the expenses of administering the estate have been paid. No claim shall be imposed against any real estate of the recipient while it is occupied as a home by a surviving spouse, or against any personal property of less that $100.00 in value. The State Department shall certify to the State Auditor the amount recovered from each estate as above provided, and a proper distribution thereof shall be made by the State Auditor in proportion to the amount of assistance contributed by the state and the federal government for such assistance.” Chapter 237, 1947 Session Laws.
' Thus, in view of the statute, the question before us is whether the granting of old-age assistance under the terms and conditions of our Public Assistance Law (S.L. 1941, Chap. 181; S.L.1943, Chap 119; S.L. 1945, Chap. 109; S.L.1947, Chap. 237) falls within the inhibitions of Section 2 of Article 8 of the Constitution of the State of Idaho.
It is insisted an action cannot be maintained against the estate of a deceased recipient for the recovery of the amount of assistance granted such recipient during his lifetime. Old-age assistance began in August, 1935, by the enactment by Congress of the Social Security Act, Title I, Chap. 531, Act of August 14, 1935, 49 U.S.Stat. at Large, p. 620, 42 U.S.C.A. § 301 et seq. Section 2 provided for old-age assistance. Paragraph (7) of Subdivision (a) — a part of Section 2 of the Social Security Act— read: “(7) Provide that, if the State or any of its political subdivisions collects from the estate of any recipient of old-age assistance any amount with respect to old-age assistance furnished him under the plan, one-half of the net amount so collected shall be promptly paid to the United States.”
It will be noted paragraph (7) did not make it mandatory upon a state or any political subdivision of a state to collect anything whatsoever from the estate of any recipient of old-age assistance. That paragraph simply provided that if a state did collect from the estate of a recipient of old-age assistance, then and in such case, one-half of the net amount collected should be promptly paid to the United States. Thus, the state was left absolutely free to determine whether it would, or would not, col
lect from the estate of a recipient, but if it decided to and did collect, then it was made mandatory that one-half of the net amount collected should be promptly paid to the United States.
About four years after the enactment of the Federal Social Security Act; to wit, August 10, 1939, the Congress amended it. By the amendment, paragraph (7) above quoted, was omitted; but a provision of similar import was included in the amendment in that 'by paragraph No. (2) of Section 303 (b) U.S.C.A. 42, it was and is provided as follows: “Provided, That any part of the amount recovered from the estate of a deceased recipient which is not in excess of the amount expended by the State or any political subdivision thereof for the funeral expenses of the deceased shall not be considered as a basis for reduction under clause (B) of this paragraph.”
In other words, by that amendment, the Congress still left a state absolutely free to collect from the estate of a deceased recipient if it chose to, but provided that any part of the amount recovered, not in excess of the amount expended for funeral expenses should not be considered as a basis for reduction under clause (B) of the same paragraph.
The sole purpose of omitting paragraph (7) above quoted, from the amendment of 1939, was that Congress intended that a state should no longer be required to pay to the United States one-half of the net amount of whatever was recovered by a state from the estate of a deceased recipient of assistance. A most generous thing for the Congress to do in this: It gives a state, for instance Idaho, a much larger amount of money to use in avoiding placing the aged and needy in poor-houses, by granting assistance to those owning the homes in which they live and enabling them to continue to live in such homes until both husband and wife have passed on, after which, of course, they no longer require the use of a home. The generosity of the Congress does not end there. It also provides more money to meet the requirements of the needy and destitute who are not the owners of homes.
Morgan v. Department of Social Security, 14 Wash.2d 156, 127 P.2d 686, is cited in support of the contention that a state cannot recover from the estate of a deceased recipient of old-age assistance. It appears the opinion in that case also covered the companion cases of Laura M. Camfield and William L. Jacobson v. The Department of Social Security of the State of Washington. The question was not presented to the Washington court in the Morgan case, supra, as to whether the legislature of the State of Washington could, or could not, under the Washington Constitution, provide for the collection or recovery of assistance granted a deceased recipient in his lifetime. That this is true cannot be questioned, because all three of the above named persons were very much alive, making application for and demanding assist
anee under Washington’s Senior Citizens Grants Act, which the Washington court passed on.
While the humanitarian purpose of our Public Assistance Law, which grants assistance to the deserving and needy, is not directly attacked, it is, however, indirectly attacked upon the ground—among others— that the law is unconstitutional; because, it is argued in effect that the transaction by and through which Frans G. Magnus, now deceased, was granted assistance, created a debt which amounted to a loan—hence, was repugnant to the inhibition contained in Sec. 2, Art. 8 of our Constitution providing that: “The credit of the state shall not, in any manner, be given, or loaned to, or in aid. of any individual, association, municipality or corporation.”
The grant of old-age benefits under our Public Assistance Law appears to be unconditional as far as the recipient is concerned. It creates no obligation on his part to repay public assistance to which he was lawfully entitled. There are no provisions therein which condition the grant on either the non-ownership of property or the ownership of less than a prescribed minimum of property.
If respondent is right in his contention our Public Assistance Law is unconstitutional, even though it creates no obligation on the part of any recipient of relief to repay any part of the relief granted, it would, of course, carried to its logical conclusion, mean the legislature would be powerless to provide for any relief whatever to the deserving and needy, and that would be simply absurd.
The granting of aid to its needy aged is a well recognized obligation of the state and is a governmental function tending to promote the public welfare. Alameda County v. Janssen, 16 Cal.2d 276, 106 P.2d 11, 130 A.L.R. 1141; 41 Am.Jur. 690.
Thus, its character as to all eligible recipients having been determined to be public rather than private, it follows that the granting of such aid is not within the constitutional inhibitions unless the recovery features of the law above quoted made the law subject to such inhibitions. Williams v. Baldridge, 48 Idaho 618, 284 P. 203; State v. Snyder, 29 Wyo. 199, 212 P. 771; Alameda County v. Janssen, supra. Undoubtedly the state has the authority to provide for public assistance for its needy aged, and the governmental nature of the service determines its character as not giving or loaning the credit of the state. Suppiger v. Enking, 60 Idaho 292, 91 P.2d 362.
The law (1941 S.L., Chap. 181 at Sec. 1, Subd. (m) defines that: “(m) 'Needy aged’ shall mean any person 65 years or older, whose income and sources of subsistence are insufficient to supply him with the common necessities of life commensurate with his needs and health, * *
The statute, in line with modern ideas, makes it possible in many cases to avoid placing the needy aged in institutions and
contemplates the granting of assistance to those who may own the home in which they live or other property as well as to those absolutely destitute, if their income and sources of subsistence are not sufficient to meet the statutory standards. Under these provisions the recipient of public assistance is not required to liquidate all of his property. Ofttimes the recipient continues to live in his own home, which he is able to preserve for use during his lifetime and for the use of his widow during her lifetime after his decease. This method of caring for the needy aged has proven far superior in many cases to placing the needy aged in institutions. It has not only proven to be more efficient and economical from the State’s standpoint, but more humanitarian, providing the recipient with a more normal existence, freeing him of much of the stigma and many of the hardships and disagreeable features of life in an institution.
These recovery provisions, supra, have nothing to do with the determination of the eligibility of any applicant for assistance. Whether he will or will not leave an estate when he dies makes not one iota of difference. The benefit received by the recipient who leaves an estate is no more than that of the recipient who happens to have none.
In the light of our determination that the granting of aid to the needy aged by the State does not fall within the inhibitions of the constitution against giving or loaning the credit of the State to an individual, it is difficult to see how the recovery features of the Public Assistance Law can be said to be giving or loaning the credit of the State.
The liability of the State is in no way increased by the presence of these recovery provisions in the law. The State does not obligate itself to do anything more because of such provisions. However, it does receive the benefit of the provisions in question and should, it seems, be classed a recipient of credit rather than the giver thereof. The conflict of interest here is not between the State and its needy aged. It is between-the State and the heirs, next of kin or other distributees of the estates of the deceased recipients. “The right to dispose of one’s property by will, and the right to have it disposed of by the law, after decease, is created by statute, and therefore the state may impose such conditions upon the exercise of this right as it may determine.” Bankers’ Trust Company v. Blodgett, 260 U.S. 647, 43 S.Ct. 233, 234, 67 L.Ed. 439, quoting Id., 96 Conn. 361, 114 A. 104.
Respondent says, however, that: “To sustain the repayment of old age assistance by virtue legislature plenary power to regulate descent and inheritance, is to violate Section 19 of article 3, of the Constitution of the State of Idaho because this (is) class legislation, placing burdens on the aged-needy not imposed upon other recipients from the State.”
The ■ section of the constitution last referred to prohibits the legislature from
passing local or special laws in certain enumerated cases, among which is listed: “affecting estates of deceased persons * * *” and “changing the law of descent or succession.”
The repayment of old-age assistance provision of our Public Assistance Law appears to be general rather than special in its terms, as it operates upon all the aged needy and their estates in like situations.
“A statute is general if its terms apply to, and its provisions operate upon, all persons and subject-matters in like situation.” Jones v. Power County, 27 Idaho 656, 150 P. 35, 37; In re Bottjer, 45 Idaho 168, 260 P. 1095.
“A special law applies only to an individual or number of individuals out of a single class similarly situated and affected, or to a special locality. A law is not special simply because it may have only a local application or apply only to a special class, if in fact it does apply to all such classes and all similar localities and to all belonging to the specified class to which the law is made applicable. Mix v. Board of County Commr’s, etc., 18 Idaho 695, 705, 112 P. 215, 32 L.R.A.,N.S., 534; Hettinger v. Good Road District No. 1, 19 Idaho 313, 318, 113 P. 721; In re Crane, 27 Idaho 671, at page 690, 151 P. 1006, L.R.A.1918A, 942.” Ada County v. Wright, 60 Idaho 394, at page 403, 92 P.2d 134, 138.
“The rule is that before a legislative enactment will be held to be unconstitutional, it must clearly appear to be so.” Bannock County v. Citizens’ Bank & Trust Co., 53 Idaho 159, at page 176, 22 P.2d 674, 680.
The case, therefore, will be reversed and the trial court directed to overrule respondent’s demurrer to the complaint. Costs to appellant.
GIVENS, C. J., HOLDEN, J., and Mc-DOUGALL, D. J., concur.