I concur. But in my opinion the Public Assistance Act of 1947, as amended in 1948, creates an obligation against the estate of every recipient to repay the total amount of public assistance received by him during his lifetime. I also think that the most serious problem on the constitutionality of this statute is whether it unjustly discriminates against old age recipients who own real property as distinguished from other recipients. Neither of these problems are discussed in the briefs or the prevailing opinion, but it was assumed that this act created no obligation to repay assistance received other than that created by the lien provisions.
Chapter 89, Laws of Utah for 1947, designated the "Public Assistance Act of 1947", repealed a number of chapters and re-enacted with some changes in one act what had been in several chapters and added some new matters. Thereafter, Chapter 9 of the Special Session of 1948 amended a number of the sections of the 1947 act. The sections referred to herein are to sections of the 1947 act except where it is pointed out to be otherwise.
Section 1 defines the terms "Recipient" and "Assistance" as follows:
"`Recipient' means any person who is receiving assistance under the terms of this act.
"`Assistance' means payments made to or in behalf of needy persons as defined in this act."
Section 3 authorizes assistance to "any person in Utah who is in need."
Section 4 limits the amount of real property and personal property and insurance which a person may own and still *Page 257 receive assistance but authorizes the Public Welfare Department to grant, in its discretion, assistance on a temporary basis to an applicant or recipient who owns property in excess of the amounts designated when it will be for the best interest of the recipient and the state. Section 5 authorizes the taking of a lien on the home of the recipient to secure the capital investment when it is necessary for the board to invest money in such home either as payment of a mortgage, contract, or for improvements to make the home habitable. It forbids foreclosure of the lien during the lifetime of the recipient except where the property is transferred to a third person during that time. Section 6 provides for "Old Age Assistance," Section 7 for "Aid to the Blind," Section 8 for "Aid to Dependent Children" and Section 9 for "General Public Assistance." Thus the act provides assistance to four separate and distinct classes of persons in need. Section 9 was amended in 1948.
Section 19 also amended in 1948, is set out in full in the prevailing opinion. It is divided into three subdivisions designated (a), (b) and (c). Subdivision (a) requires as a condition precedent to the granting of assistance to any old agerecipient, that the applicant pledge all of his real property or any interest therein as security for the repayment of all assistance thereafter received by him, with an exemption therefrom of $300 assessed valuation and $750 cash valuation. Subdivision (b) requires the Board upon the request of a recipient, to file with the County Recorder a certificate showing the amount of assistance furnished such recipient to date, and for immediate foreclosure of the lien in case the property covered there is transferred to a third party prior to recipient's death. It further provides as follows:
"Upon the death of any recipient the County Board shall present a verified claim for the total amount of all assistance given the recipient to the executor or administrator of the estate of such decedent and the same shall be allowed, approved, filed and paid as other claims in the administration of the estate of such decedent." *Page 258
The above quoted paragraph, definitely requires the repayment of all assistance received the same as other claims in the course of administration of the estate of every recipient. While the first part of this section expressly deals only with old age recipients this part expressly deals with any recipient. It is in no way limited to claims which are made a lien on real property belonging to the estate but expressly requires that
"upon the death of any recipient the County Board shall present a verified claim for the total amount of all assistance given the recipient."
In many estates there is no lien against any property thereof, because the only lien provided is against the real property of the recipient owned after the effective date of this act and covers only assistance received while such property is so owned and applies only to old age recipients, and cases where a capital investment is made on recipient's property. Such liens do not cover after acquired property of any recipient whether real or personal, nor any personal property, nor do they cover the real property of any recipient except old age recipients, and in cases where a capital investment is made in the home of a recipient. This paragraph covers assistance given to all recipients whether old age, blind, dependent children or general public assistance; it provides for the payment as of other claims in the administration of the estate of such recipient, without regard to whether there is a lien against the property or not. It further requires that the claim be made for the "total amount of all assistance given the recipient." This is broader than the requirements of the lien as it only covers assistance given after the contract therefor is made. This paragraph is entirely inconsistent with the idea that it was intended only to provide for the repayment of assistance secured by a lien against the real property of the recipient.
The purpose of this paragraph could not have been merely to provide for the repayment of the assistance secured by *Page 259 a lien against recipient's real property without foreclosure thereof. If such were its purpose, surely such lien would be mentioned and the recovery of payment in some way limited to such liens. On the other hand if such were the purposes of the legislature this paragraph was entirely unnecessary because that is amply provided for under the provisions governing the probation of estates generally.
Section 102-9-5, U.C.A. 1943, deals with the contents of claims against estates, expressly providing for claims secured by a mortgage or other lien. Section 102-9-11, U.C.A. 1943, prohibits any action on a claim which has not been presented to the executor or administrator, except on a mortgage or lien to enforce the same where all recourse to other property of the estate is expressly waived. Section 102-9-15, U.C.A. 1943, makes the effect of a judgment against the personal representative of the decedent the same as an approved claim against the estate, and prohibits an execution thereon and provides that it creates no lien or priority on the property of the estate. Section 102-9-21, U.C.A. 1943, provides for the payment of funeral expenses and expenses of last sickness and family allowance before any other claims, and Section 102-9-22, U.C.A. 1943, makes the order of payment of other debts against the estate as follows: (1) Wages, (2) Debts having a preference,
"(3) all debts which are liens upon the real property occupied, selected or set apart as a homestead. (4) all other debts which were liens on the property of the decedent at the time of his death. (5) All other demands against the estate."
Section 102-9-23, U.C.A. 1943, provides as follows:
"Debts secured by liens or encumbrances on the property occupied, selected or set apart as a homestead must be paid out of the funds of the estate; and such liens or encumbrances shall only be enforced for any deficiency remaining after such payment. The preference given in the preceding section to debts secured by liens on other property shall extend only to the proceeds of the property affected by such liens, and to the extent thereof, and, if such proceeds are *Page 260 insufficient to pay the liens, the part remaining unsatisfied must be classed with other demands against the estate."
It is clear from the foregoing that liens against homestead property must be first paid out of other funds of the estate and the homestead left intact where the other property is sufficient for that purpose, and that liens against other property are preferred to the extent only of the proceeds of the property affected thereby. Under these provisions it is clear that the administrator could pay the claims for assistance which were secured by a lien against the real property of the decedent without the enactment of this paragraph in Section 19 and that it does not aid in effecting that purpose. I therefore conclude that the intention of the legislature in enacting that paragraph was to make all assistance given to any recipient payable after his death under the provisions of subdivision (5), of Section 102-9-22, U.C.A. 1943, the same as other claims in the course of the administration of the estate.
The history of this paragraph also definitely indicates that the purpose was not to merely provide a means of recovering assistance which was secured by a lien under this act. Chapter 89 of the Laws of Utah, for 1937, provided for old age assistance and Section 18 thereof, now Section 76A-3-21, U.C.A. 1943, provides as follows:
"No recipient under this act shall be required or asked to reimburse the state for any of the assistance received hereunder, except wherein said recipient has received assistance fraudulently or contrary to the terms of this act, and no lien or mortgage shall be taken on the estate of the recipient as a guarantee of repayment; provided, estate has a combined assessed valuation of less than $3,000."
Section 19 of that Chapter, as amended by the Laws of Utah for 1941, c. 74, now Section 76A-3-22, provides as follows:
"Upon the death of any recipient, where there is no descendant of the first and second degree in the direct line and where the estate of the decedent is a home and furniture, the combined value of which is $3,000, the commission, or the county or district board which paid *Page 261 the decedent assistance under this act, in behalf of such department, shall present a verified claim for the total amount of all such payments so made to the executor or administrator of the estate of such decedent and the same shall be allowed, approved, filed and paid as other claims in the administration of the estate of such decedent."
Chapter 90 of the Laws of Utah for 1937 covers assistance to dependent children, needy blind, and other destitute persons. After providing such assistance by Section 15 of that chapter, now Section 76A-3-47, it provides as follows:
"Upon the death of any recipient other than dependent child the director or some other officer of the county or district department which paid the decedent assistance under this act, in behalf of such department, shall present a verified claim for the total amount of all such payments so made to the executor or administrator of the estate of such decedent and the same shall be allowed, approved, filed and paid as other claims in the administration of the estate of such decedent."
From Section 76A-3-21 quoted above, it is clear that it expressly deals with the question of when assistance received by recipient may be recovered. Then Section 76A-3-22, dealing directly with the recovery from the estates of recipients who have been furnished assistance, provides for such recovery under limited circumstances in almost exactly the same words as the paragraph above quoted from Section 19 of the 1948 enactment. The same provision for the recovery from the estates of recipients who have received assistance, with some limitations thereon, is again provided for in Section 76A-3-48 above quoted in almost exactly the same words. Neither of these provisions deal with the recovery of assistance given, which was secured by a lien on the property belonging to such estates because at that time there was no provision for any such lien. Since the 1948 provision is copied so nearly from the previous statutes above quoted, it is evident that the legislature intended to deal with the same subject matter as the previous statutes which was the recovery of assistance generally given to recipients out of their estates and *Page 262 did not intend to limit such recovery to such sums thereof which were secured by a lien.
If the foregoing is a correct construction of this statute, then all the questions of unjust discrimination in cases involving after acquired property are eliminated, because in all such cases all assistance given to a recipient must be repaid out of his estate, if any, after his death. So the only serious constitutional problem presented is whether there is unjust discrimination against old age recipients who must give a lien on all their real estate as a condition precedent to being granted assistance, whereas the other three classes of recipients are not required to give such a lien. If such discrimination there is, it is not nearly so great under the construction of the statute above made as under that assumed in the prevailing opinion. Still we do have that problem. I have no difficulty in finding a reasonable distinction between a dependent child or a blind person who receives assistance and an old age recipient, but in many cases recipients receiving assistance under the classification of General Public Assistance, are not distinguishable in their facts from old age recipients. Thus the person just under 65 years of age who becomes incapacitated on account of ill health, is not substantially different from a person who is incapacitated for the same reason who happens to be over that age. Yet one has to give a lien and the other does not.
However, the fact that there may be similar cases falling in different classifications does not make the classification undistinguishable. The test is whether the two classifications taken generally present a reasonable basis for distinction. Thus in the General Public Assistance classification, the assistance received thereunder is generally more of a temporary nature, the persons receiving such assistance are usually more apt to soon become self supporting and in order to aid them in becoming self supporting the legislature may reasonably not require a lien against their real property and still require such a lien against the *Page 263 property of an old age recipient where the probability in most cases of them becoming self supporting is not so great. The fact that the borderline cases in the two classifications may not be distinguishable does not render the whole classification unjust discrimination if the cases generally are different. It is often necessary in order to make classifications to draw an arbitrary line between the two classes. I therefore conclude that this act does not offend against the constitution of this state or of the United States.