(dissenting).— The proposition in the foregoing opinion that the “ liability of the defendant can be predicated only on proof that she [defendant’s daughter] is unable, because of physical or mental disability, to earn a *57living by labor,” is,-in my judgment, a sacrifice of 1hc plain spirit and intent of 1 lie statute to the bare letter of a single clause, and works a defeat of the humane purpose which the Legislature sought to promote.
As I view it, the statutory liability of a person for the support of an indigent relative (providing, of course, that such person be found financially able, and related within the prescribed degree) arises the moment such relative becomes a public charge, unless there be others of nearer kin from whom such support can be enforced. If the defendant’s daughter and her children are shown to be proper subjects for relief at the hands of the county, then the county may, in turn and at once, call upon her relatives in the manner prescribed by the statute to assume the burden. It is doubtless true that, as to the young children, their father and mother are first chargeable with their support; but when it is shown that the mother herself is destitute, and unable by herself to provide a maintenance for them, and that the divorced father resides in another county, has another family on his hands, is impecunious, and that a judgment against him would be utterly unavailing, then I hold that the duty of the county to extend relief is clear, and the right of the county to call upon other relatives, who may be able to respond, is perfect.
If this be not the case, and the mere fact that a destitute child has an able-bodied parent takes it out of the category of ‘(poor persons,” within the meaning of the law, without reference to the question whether the liability of such parent can be effectively enforced, then the existence of a father or mother in another State, or across the seas, or in the penitentiary, 'or in the army of able-bodied tramps who infest the country, is all that need be shown to support an excuse for leaving the child to starve. Surely such was not the intent of the law. It is true that the statute defines a poor person as one who “ has no property exempt or otherwise and is unable because of physical or mental disability to earn a living *58by labor.” Code, section 2252. If this be literally and strictly construed, then, as long as the poor person has a rag of exempt clothing or a morsel of exempt food, though without a farthing with which to replace these necessities of life, or as long as he or she is able to work for a living, even though there be no work or insufficient work to be had, neither the county nor the more opulent family relatives are under any legal duty or obligation to extend relief.
That such destructive literalness of interpretation is not to be indulged this court, in common with many others having occasion to pass upon similar statutes, has already held. In Hardin County v. Wright County, 67 Iowa, 127, the plaintiff county, having furnished relief to the family of one Hutchinson, whose legal settlement was in the defendant county, brought suit to recover the expenses thus incurred. The claim was resisted because it appeared that Hutchinson in fact had property to the amount of $1,000, though not within the jurisdiction of either county, and was not, therefore, a poor person, within the meaning of the law; but this court reversed a judgment for the defendant, saying: “It does not follow that, because the applicant may have some property, his condition is not such as to require relief. Take the case at bar. Here was a large family. Some of them doubtless were helpless, even in a state of health. The head of the family and several of the members were stricken down by a serious sickness, and sickness among them continued for six months. They had recently removed to the place where they were taken sick, and were probably among comparative strangers, and may have been without money or credit. Yet the fact that they had $1,000 worth of property somewhere in-the world did not preclude the possibility that they were proper subjects for relief.”
It has been held by the Supreme Court of New Hampshire that one is to be deemed a pauper when he “ cannot relieve his immediate wants without disposing of property which is essential, and which, if parted with, must be im*59mediately replaced to enable him to live.” Litchfield v. Londonderry, 39 N. H. 252. In the case of Poplin v. Hawke, 8 N. H. 305, the same court says that when a man with a house and little real estate is, by sickness or other accident, reduced to want, he is not to be compelled to sell his house and clothing and turn himself and family out of doors, sick and naked, in order to entitle himself and his family to relief; “ It is not the interest of those who may be chargeable with his support that he should he compelled to do this.” So, also, it is said that when a poor person is sick and needs the assistance of his wife, who is otherwise able to maintain herself, both may, by the necessity of such assistance, be regarded paupers, and entitled to relief. “ If there is any more, unexceptionable or meritorious cause of pauperism than this, it is unknown to us. The wife necessarily became a pauper, unless it became her duty to desert her husband on his deathbed, an act which we should not require of her, even though it should expose the defendant town to the necessity of her maintenance while in the discharge of such a duty.” S. Hampton v. H. Falls, 11 N. H. 134. In a case where a father was able to support himself, but was unable to support his wife and children, he was held to be a poor person or pauper, under the meaning of the law. Poland v. Wilton, 15 Me. 363. To the same effect see Wallinford v. Southington, 16 Conn. 435; New Hartford v. Canaan, 52 Conn. 158; Fish v. Perkins, 52 Conn. 203.
Now, take the case at bar. The defendant’s daughter may have been able to support herself, had she been free to perform ordinary domestic service, but with several small children, not yet able to care for themselves, and dependent upon her for shelter, nurture, and oversight, it goes without saying that the labor and service which a country neighborhood affords to one so situated and reasonably within her power of performance may well have been wholly inadequate to keep herself and her little ones from want. If, in the case above cited, the able-bodied wife, who is prevented from *60earning her living by the necessity of caring for her sick husband, shows an “ unexceptionable and meritorious .cause of pauperism,” surely' less cannot be said of the mother, whose ability to provide for herself is lessened by the care of her infant children.
Nor is it any answer to say that the father, though divorced from the mother, is in duty bound to support these children. He may be under obligation to support them, but he does not do it, and it is affirmatively shown that he is not in a financial condition which would render legal proceedings to enforce that obligation of any avail whatever. It is not for the court to inquire into the cause of the poverty of this woman and children. Tt is the fact of hfelpless poverty, and not its cause or the moral responsibility of the indigent person or of others for existing conditions, of which the law inquires. It may be unnatural and reprehensible in the father of these children, even though himself, poor and embarrassed by other obligations, to refuse contribution to their support; but it is scarcely less unnatural in the defendant, who, though not wealthy, is at least in comfortable circumstances, to refuse the comparatively trifling aid which would enable his daughter and young grandchildren to avoid'becoming public charges.
As to the facts in the case at bar it must also be borne in mind that the action is at law, and we are required to consider the testimony in its most favorable aspect in support of the judgment of the trial court. Moreover the printed record does not, in my judgment, contain any showing or claim that all the testimony has been properly preserved by bill of exceptions, or that we have it all before us.
I think the judgment appealed from ought to be affirmed.