The majority’s holding that the liability mentioned in section 6650 of the Welfare and Institutions Code is unconditionally imposed, regardless of *762ability to pay, is, in my view, neither required by the statute, nor, if we read the section in context, is the holding reasonable. The majority’s construction is not reasonable in that (1) other provisions of the subject legislative plan indicate that the liability of relatives to reimburse the state is conditioned on ability to pay and (2) substantial portions of the scheme, vital to the integrity of its objectives, are rendered constitutionally void by the majority holding.
As hereinafter developed, the majority construction offends not only the salutary statutory plan but converts it into an implement whereby private property may be taken without compensation, an arbitrary classification is made, equal protection of the laws is denied, and a gift of “public money or thing of value” is authorized.
The Welfare and Institutions Code, with its comprehensive provisions for the liability of responsible relatives to reimburse the appropriate public agency for the support of the needy, is the measure of the subject liability; its sections, read together, constitute a complete system which occupies the field of such liability. (See County of San Bernardino v. Simmons (1956), 46 Cal.2d 394, 399 [296 P.2d 329] ; County of Contra Costa v. Lasky (1954), 43 Cal.2d 506, 509 [275 P.2d 452].) When the pertinent portions of the code are read together it appears that the liability of the responsible relatives, declared in general terms but not fully defined or delimited in section 6650, is subject to the condition, stated in section 6653, that investigation disclose, and official determination be made, that “such relative or relatives are in fact financially able to pay such charges.”
It is, of course, to be presumed that “official duty has been regularly performed” (Code Civ. Proc., § 1963, subd. 15), and, accordingly, that the Director of Mental Hygiene and the Departments of Mental Hygiene and of Institutions performed the duties imposed upon them by section 6651 of the Welfare and Institutions Code. That section provides that “The monthly rate for the care, support, and maintenance of all mentally ill or insane persons and inebriates at the state hospitals for the mentally ill where there is liability to pay for such care, support, and maintenance, shall be [reviewed once each fiscal year and fixed at the state-wide average per capita cost of maintaining patients in all state hospitals for the preceding fiscal year, as1] determined by the Director of *763Mental Hygiene, and shall he payable in advance. . . . The Director of Mental Hygiene may reduce, cancel or remit the amount to be paid by the estate or the relatives, as the ease may be ... on satisfactory proof that the estate or relatives . . . are unable to pay the cost of such care, support, and maintenance. ...” (Italics added.)
In section 6652 of the same code it is further provided that “The Department of Mental Hygiene shall collect all the costs and charges mentioned in Section 6650 ...” (Italics added.) Further defining the powers and indicating the duties of the Department, section 6658 provides, “The Department of Mental Hygiene may in its own name . . . bring an action to recover for the use and benefit of any state hospital or for the State the amount due for the care, support, maintenance, and expenses of any patient or inmate therein, against any county, or officer thereof, or against any person, guardian, or relative, liable for such care, support, maintenance, or expenses.”
Inasmuch as we must presume that the Director and the Department faithfully performed the duties imposed upon them, and inasmuch as the record shows that the Department did carry out the mandatory duty imposed upon it by section 6653 to “make an investigation . . . and . . . determine whether . . . such relative or relatives are in fact financially able to pay such charges,” but made no attempt to collect any charges from the relative here involved during her lifetime, we are further bound to accept the record as establishing that the Department actually determined that such relative was in fact not financially able to pay such charges.
Further, as already noted hereinabove, section 6651 of the code provides that “The Director of Mental Hygiene may reduce, cancel or remit the amount to be paid by the estate or the relatives, as the case may be, liable for the care ... of any mentally ill or insane person . . . who is a patient of a state hospital for the mentally ill, on satisfactory proof that the estate or relatives, as the ease may be, are unable to pay the cost of such care ...” The power to “reduce, cancel or remit” must, if it is to survive constitutional tests, be correlative to the power to impose, and where such liability is not ascertained and imposed during the lifetime of the responsible relative it does not appear consonant with legislative intent to impose it after the relative’s death. Certainly where, as here, a determination of no liability has been made during the relative’s lifetime, the post mortem attempt to surcharge that relative’s estate should fail. Upon a proper construction of *764the statutory plan, and on the facts appearing in this record, there was never an occasion for the director or the department to “cancel or remit the amount to be paid” because no “amount to be paid” was ever fixed and, hence, never accrued or became a liability of the deceased.
I would not analogize Estate of Phipps (1952), 112 Cal.App.2d 732 [247 P.2d 409, 33 A.L.R.2d 1251] (majority opinion, ante, pp. 752-753.) The question there was the liability of the estate of an incompetent for care furnished the incompetent at a State hospital prior to the acquisition of any estate by the incompetent. It may fairly be said that the liability of the estate of the incompetent under section 6655 of the Welfare and Institutions Code, once the incompetent has died, is “unconditional” as opposed to the conditionally imposed liability of the estate of a responsible relative under sections 6650, 6651, and 6653. It is obvious that the estate of the incompetent, in the absence of statute, would be primarily liable for the incompetent’s own support. It is equally clear that the estate of a relative (other than a spouse) would not ordinarily be liable for the support of an adult. In the Phipps case it is said (p. 735 of 112 Cal.App.2d) that “The liability of both [the estate of the incompetent and the responsible relatives] is there, although there may be no collectibility due to absence of estate or funds.” This statement, insofar as it indicates that the estate of a responsible relative would be liable even though during the lifetime of the relative there was no determination of ability to pay, is mere obiter and was pronounced in a case not analogically close to the ease at bar. Manifestly, the liability of a decedent’s estate for necessaries of life furnished the decedent himself during his lifetime is quite a different thing from seeking to impose liability for such necessaries upon another person or the latter’s estate.
Prom what has been said it is apparent that I disagree with Department of Mental Hygiene v. Shane (1956), 142 Cal.App.2d Supp. 881 [299 P.2d 747] (majority opinion, ante, p. 752). There, there was no evidence that the department ever made demand upon the decedent, during his lifetime, for the support of his insane son. After his death the department filed a claim in his estate. The court said (p. 883 [1] of 142 Cal.App.2d Supp.), “We don’t see any connection between the fact that the decedent did not have the ability to pay for his son, the inmate, while he was living and the fact that his estate would be liable.” However, it appears that there is a connection *765between the fact that the department was not shown to have made claim to payments and established the ability of the decedent to make such payments during the period for which support was sought rather than waiting to make claim therefor after (if its theory be accepted) the asserted liability had accrued and the responsible relative had died.
As stated in the majority opinion (ante, p. 750), section 2176 of the Political Code when enacted (Stats. 1903, p. 505) “clearly made ability to pay a condition of liability.” It provided, in material part, that “The husband, wife, father, mother, or children of an insane person, if of sufficient ability, . . . shall be liable for the care, support and maintenance of any insane person in a state hospital for the insane . . .” (Italics added.) When the Legislature deleted the phrase “if of sufficient ability” in 1909 (Stats. 1909, p. 71) it added to the Political Code a form of commitment which expressly provided for a statement of financial ability (Pol. Code, § 2171, Stats. 1909, p. 70). And in 1921, as the majority opinion points out, the Legislature added to section 2176 of the Political Code the provision that “The commission shall . . . make an investigation to determine whether the patient has any relative or relatives as mentioned in this section, and who are herein made responsible for payment for the care ... of such patient, . . . and shall ascertain the financial condition of such relative or relatives, to determine whether in each case such relative or relatives are in fact financially able to pay such charges.” (Stats. 1921, p. 1335.) It thus appears that the Legislature has always had in mind financial ability as a condition of the liability of responsible relatives.
Moreover, with respect to the question posed by plaintiff’s contention that sections 6650 et seq. of the Welfare and Institutions Code are unconstitutional in that they constitute a taking of private property without just compensation, it may first be noted that State Commission in Lunacy v. Eldridge (1908), 7 Cal.App. 298, 304 [94 P. 597, 600], relied upon by the majority (ante, p. 761), was decided at a time when, as already mentioned herein, section 2176 of the Political Code “clearly made ability to pay a condition of liability,” and hence constitutes no authority whatsoever for holding that the imposition of unconditional liability is permissible under our constitutional guaranties. Further, I am in accord with the view expressed by Chief Justice Beatty of this (Supreme) court in dissenting from the order denying a hearing in the Eldridge case, “for the reason that there is, in my *766opinion, a serious question as to the constitutionality of an act of the legislature which seeks to impose the obligation of support upon the father or mother of an adult son who, at the instance of the state, has been committed to an insane asylum because he is a dangerous lunatic.” (P. 307 of 7 Cal.App.)
Particularly do I believe that there is a serious question of the constitutional right of the Legislature to impose liability for the maintenance of an adult person upon any other person who has not voluntarily (as in the case of marriage, for example) assumed an obligation to answer for such support and who in the nature of things, if the legislation be sustained, can do nothing to secure relief therefrom short of himself joining the class of needy and impoverished persons whom the welfare legislation ostensibly seeks to assist. That the Legislature did not intend this result is made obvious by the provision of section 6655 that even the estate of the patient himself shall not be drained beyond reasonable ability to pay if there is likelihood of his recovery. (“Payment for the care, support, maintenance, and expenses of a person at a State hospital shall not be exacted ... if there is likelihood of the patient’s recovery or release from the hospital and payment will reduce his estate to such an extent that he is likely to become a burden on the community in the event of his discharge from the hospital.”) Do the majority of this court intend to tell the people of California that this state is more concerned in protecting the estate and solvency of the incompetent than it is in conserving the independence of his relatives ? Do they mean to hold that the incompetent’s estate may be left intact to ensure his financial independence at the same time that absolute liability is imposed on the relatives, regardless of ability to pay? That any nonconsenting adult person should have imposed upon him, by act of the Legislature, absolute responsibility for support and maintenance of another adult over whom and whose estate the law grants him no correlative right of control or conservation, suggests to me not only the taking of property without due process and denial of equal protection of the laws, but an open invitation from the State to irresponsibility both by those upon whom liability is sought to be imposed and by those in whose favor it is sought to be created. I am impelled to the view that these basic constitutional questions deserve more thorough exploration than has been accorded them in the majority opinion.
Another grave question appears on the face of the majority *767opinion. It is there declared (ante, p. 751) that “while an unconditional liability is imposed, the amounts due thereunder may be reduced, remitted, or cancelled by administrative action . . . following an investigation and determination of inability to pay.” Would not remission or cancellation of an unconditional debt owing to the State of California constitute a gift of “public money or thing of value” in violation of section 31 of article IV of the Constitution of California? It is our duty to construe statutes, which reasonably admit of such construction, so as to avoid running afoul of constitutional proscription. We would accomplish that result here by construing the statute as making financial ability a condition of liability. Certainly we should apply that very obvious and apparently contemplated construction here. (Bodinson Mfg. Co. v. California Emp. Com. (1941), 17 Cal.2d 321, 326-327 [6] [109 P.2d 935]; 11 Cal.Jur.2d 384, and authorities there cited.)
In addition, if remission is to be permitted by administrative action upon a determination of inability to pay, then, as likewise mentioned by Chief Justice Beatty in the Eldridge case (State Commission in Lunacy v. Eldridge (1908), supra, 7 Cal.App. 298, 307-308), by what standard is ability to pay to be determined? Does the support obligation “continue until the father or mother, or wife or child, has been stripped of all his or her possessions except property exempt from execution, or has the court or commission discretion to say how far the exaction shall be pressed ? Upon the former supposition the operation of the law would in many instances result in grievous hardship, upon the latter its operation would be lax or oppressive according to the idiosyncrasies of the officers, executive and judicial, charged with its enforcement.” And we may add, does this absolute liability concept intend that the available relatives shall themselves be reduced to the point of needing support from the State when no further solvent relatives can be found? Lastly, for the purposes of this dissent, but by no means all that might be said on the subject, it is noted that the majority opinion strains to the end it reaches against the express provision of section 6651 that ‘ ‘ The monthly rate for the care, support, and maintenance of all mentally ill or insane persons and inebriates at the state hospitals for the mentally ill where there is liability to pay for such care, support, and maintenance, shall be . . . determined by the Director of Mental Hygiene, and shall he payable in advance. ...” (Italics added.)
*768For the reasons above stated, I cannot concur in the philosophy, the reasoning, or the law of the majority opinion. The judgment should be reversed.
Carter, J., concurred.
The language in brackets was added by 1954 amendment. Other amendments, not here material, were also made in 1953 and 1954.