PETERS, J. — I dissent.
The conviction in this case was based, in part at least, on erroneous instructions to the jury and on inadmissible evidence. The trial court instructed the jury that, under the regulations of the Board of Social Welfare, a man living in a home assuming the role of spouse, even though not married, has the same legal responsibility as that of a stepfather to the mother of needy children, and that the income of such a man that is to be used in determining his ability to contribute to their support, is his take-home pay plus his income from all other sources.
The majority admit that the “legal responsibility” portion of this instruction was erroneous, but say it was not prejudicial, and then uphold the validity of the last part of the [527]instruction. To that extent, it is held, the regulation is valid. Based on this ruling, the majority then hold that evidence of the income of the man assuming the role of spouse, even though not married, was admissible because of the “regulations calling for consideration by the welfare department of the income of a man assuming the role of spouse.”
In my opinion the challenged regulations are void in their entirety, instructions based upon them were erroneous, and evidence was erroneously admitted in reliance upon them. These matters were clearly prejudicial.
The effect of the majority opinion is to hold that the Board of Social Welfare, by a regulation adopted by it, can determine that a needy child, who is otherwise entitled to state aid, can be deprived of a certain portion of that minimum aid which the Legislature has determined to be necessary to support him (Welf. & Inst. Code, § 1511.5), solely because the mother is engaged in an extramarital relationship with a man who has no legal obligation to support the child, and who may, in fact, legally refuse to do so. To uphold such a regulation is to uphold the usurpation of legislative power by an administrative board.
The majority uphold this regulation because, so it is asserted, it affords a “practical solution” to the problem of determining whether a man living with the child’s mother is actually contributing support money. It is contended that “ [i]t is reasonable to infer that a man assuming the role of spouse will contribute to the support of the mother and her needy child.” This reasoning is obviously unsound.
The Aid to Needy Children1 chapter of the Welfare and Institutions Code (§§ 1500-1585) does not give the board the authority either to enforce such a “practical solution,” or to indulge in such a so-called “reasonable” inference. In fact, the statutes, by implication, deny such authority to the board.
It is elementary law, of course, that the Legislature may confer upon an administrative board the power to “fill up details” of a legislative policy by enacting rules and regulations, as long as the Legislature establishes an adequate standard (Knudsen Creamery Co. v. Brook, 37 Cal.2d 485 [234 P.2d 26]; California Emp. Com. v. Butte County etc. Assn., 25 Cal.2d 624 [154 P.2d 892]; Butter-worth v. Boyd, 12 Cal.2d 140 [82 P.2d 434, 126 A.L.R. 838]). But it is equally elementary that the administrative agency can neither vary, [528]enlarge, or change the scope of a legislative enactment, nor may it adopt regulations which lie outside the scope of the statute (Knudsen Creamery Co. v. Brock, supra; First Industrial Loan Co. v. Daugherty, 26 Cal.2d 545 [159 P.2d 921]; County of Los Angeles v. State Dept, of Pub. Health, 158 Cal.App.2d 425, 437 [322 P.2d 968], and cases cited therein). Certainly, the administrative agency has no authority to remedy or supply even an involuntary omission by the Legislature (Whitcomb Hotel, Inc. v. California Emp. Com., 24 Cal.2d 753 [151 P.2d 233, 155 A.L.R 405]). It is obvious that the regulation here under consideration violates all of these fundamental 'rules.
The regulation purports to authorize the board to base support payments to the mother of an ANC recipient upon the income of a man 1 ‘ assuming the role of spouse, ’ ’ whether or not, in fact, that income is being used for the support of the child. This is far more than an attempt to “fill up details” in a statute. It is an attempt, undoubtedly laudatory in purpose but nevertheless illegal, to enlarge the scope of a legislative pattern to cure an evil against which the Legislature just failed to provide.
The purpose of ANC is “to provide aid for children whose dependency is caused by circumstances defined in Section 1500.” (Emphasis added.) (Welf. & Inst. Code, § 1503.) Section 1500 states that a “needy child” is one “who has been deprived of parental support or care” for various reasons. It is the welfare of the child that is the primary factor. So essential is this consideration that “the needs of the family group may [also] be considered in determining the needs of the child.” (Merced County v. Department of Social Welfare, 148 Cal.App.2d 540, 543 [307 P.2d 46].)
The Welfare and Institutions Code is most specific in defining those instances in which a child otherwise entitled to aid may be deprived of that aid because of the acts of other persons. The child may be denied support if the custodial parent refuses to cooperate with law enforcement officers charged with enforcing the legal obligation of the absent parent (§ 1523), or refuses to accept vocational rehabilitation (§ 1523.5), or refuses to accept reasonable employment (§ 1523.6). These are the only situations that the Legislature determined should be sufficient to withdraw aid from a needy child.
These sections are exclusive. They enumerate the only situations that the Legislature deemed significant enough so [529]that a needy child should be disqualified from aid because of the acts of third persons. These sections give unmistakable evidence that the Legislature’s intent was that aid is to be withheld from a needy child only when a person who is legally obligated to support the child, and is able to do so, refuses. These causes for refusing aid cannot be added to by administrative fiat. Certainly there is no legislative provision that expressly provides that a mother’s act in engaging in an extramarital relationship will disqualify a child from aid, and there is no provision of the statute from which such a legislative intent can be implied. To the contrary, the clear intent of the sections above referred to is that aid is to be withheld only in those extreme situations carefully set forth by the Legislature. The regulation in question seeks to add a form of disqualification of the child not provided by statute.
The majority seek some solace from the provisions of section 1508 of the Welfare and Institutions Code. That section expressly authorizes the board to consider the income of a stepfather in determining the amount of aid to be granted. Based on this section the majority argue that this means that the board may 11 consider the man’s income without regard to the existence of a lawful marriage.” This argument is unsound. It completely overlooks, and so fails to mention, the fact that the reason why the Legislature provided that a stepfather’s income may be used in computing the amount of aid granted to the child is that section 1508 carefully makes the stepfather legally obligated to support his stepchildren up to an amount representing his wife’s community property interest in his income. The support of the child, the paramount concern of the statute, is thus assured. The child is given, as a substitute for aid, the legal right to enforce his right to support from a stepfather. But a “quasi spouse” has no legal obligation to support the child, and the woman with whom he is living has no legal right to any part of his income. As Mr. tenBroek points out in his article on The Impact of Welfare Law Upon Family Law in 42 California Law Review 458, at page 483, the board, by its regulation, has applied stepfather liability to the quasi spouse, and, although the law of this state does not recognize common-law husbands, under this regulation the board, by administrative fiat, has created common-law stepfathers. What the majority have done is to hold that a statute which carefully and unequivocally provides a legally enforceable substitute to the needy child for the state aid which is withdrawn, authorizes, by implication, [530]the withdrawal of state aid in a nonstepfather situation where there is no legally enforceable substitute.
The majority apparently were disturbed because there is no legal duty on a “quasi spouse” to support the child, because they attempt to justify their conclusion by the conjecture that “it is unlikely that the financial need of a child will vary substantially depending upon the legality of the relationship between his mother and a man living in the home.” There is certainly no authority in the ANC statutes for withdrawing aid to a needy child on the basis of such an unsupported and unwarranted conjecture. It is unquestioned that any support actually provided to the mother from any source can and should be taken into consideration in computing payments. But, as one of the law review articles cited by the majority points out, these “common law” relationships often develop for the very reason that the man involved refuses to be obligated for the support of the children (42 Cal.L.Rev. 458, supra, at p. 483). The support a needy child may obtain from such a man is, to say the least, highly uncertain. The board does not have the legal right in fixing the allotment for the child to consider income which is unpredictable and uncertain, unless it is actually contributed to his support. The fundamental purpose of the ANC program is to help the innocent child who has been caught in the web created by the adults around him, not to punish the child for the misdeeds of these adults.
It is quite possible that in some respects the ANC program is abused. It is more than likely that the abuses at which this regulation is aimed are sufficiently serious to suggest the possibility of legislative remedial action. Certainly, the state should not be required to support children who are, in fact, being supported by others. It is equally true that deliberate attempts to subvert and defraud the welfare program should be prevented. But the existence of the need for reform cannot create in the Board of Social Welfare the authority to pass regulations to correct abuses that have developed in a plan evolved by the Legislature. It is for the Legislature and not for the board to determine policy. It is for the Legislature and not the board to determine whether a needy child is to have his allotment curtailed because his mother is living with a man who assumes “the role of spouse,” whether such a man shall be legally obligated to support the child, and whether the child shall receive ANC aid unless a legal stepfather relationship has been established. Such policy decisions are [531]not to be made by an administrative board without guidance from the Legislature.
This does not mean that appellant cannot be convicted of grand theft if she misrepresented her actual income. The vice of the present case is that the jury was misdirected and improper evidence was admitted. These matters were clearly prejudicial.
I would reverse the orders appealed from.
Dooling, J., concurred.
Hereafter referred to as ANC.