Department of Social Welfare v. Gardiner

[432]

BARNARD, P. J.

This action was brought under section 2223 of the Welfare and Institutions Code to recover double the amount of old age aid paid to the decedent during the period from June 1, 1944, through January 31, 1948. A demurrer to the complaint was overruled, with 10 days to answer. The defendant refused to answer, and judgment was accordingly entered in favor of the plaintiff. The defendant has appealed on the judgment roll.

This action was filed on August 10, 1948. From the allegations of the complaint it appears that the deceased applied for and was granted such aid; that he was paid such aid during the period above mentioned; that he died on January 20, 1948; that upon his death it was found that he was possessed of money and personal property in excess of the amount allowed such a recipient of old age security aid under the provisions of the law; that during all of the period in question during which he had received such aid in a named amount he had owned and possessed money and personal property of a value in excess of the amount allowed by law; that he had failed, refused and neglected to disclose that fact to the board of supervisors during said period; that letters testamentary were issued to this defendant on February 6, 1948, and he has since been, and now is, the duly qualified and acting executor of said estate; that a creditor’s claim for double the amount of the payments thus made to the deceased was filed on June 21, 1948; and that this claim was rejected by the executor on June 30,1948.

The appellant first argues that section 2223 of the Welfare and Institutions Code is unconstitutional since it is a bill of attainder. It is argued that it is a bill of attainder because it provides for a criminal penalty to become effective after the death of the recipient of the security, so that the recipient “becomes a criminal’’ only after he has died. While any such penalty does not become effective until the death of the recipient of the aid, he is neither deprived of a trial nor adjudged a criminal. While it may be in the nature of a penalty, it is one imposed by, statute and is made effective as against the estate of the recipient.

(Department of Social Welfare

v.

Stauffer,