Eldridge

I dissent from the order denying a rehearing of this cause for the reason that there is, in my opinion, 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. The question as to the validity of the enactment (Pol. Code, sec. 2176) is the more worthy of fuller consideration by reason of a question of construction affecting its operation if valid. It applies only in case the father, mother, etc., is of “sufficient ability.” Who determines this question of ability and by .what standard? Does it lie in the discretion of the state board to sue or not to sue according to their idea of what constitutes ability, or is it a question for the court in which the action is pending? Or is it to be determined by the return to a writ of execution? In other words, does the obligation of support 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…

This action was commenced by the plaintiff on the thirteenth day of November, 1905, for the recovery of the sum of $2,370, alleged to be due from the defendant, by virtue of the provisions of section 2176 of the Political Code, for the care, support and maintenance of the latter’s adult son, who was, the complaint alleges, at the age of thirty-four years, duly committed, on the thirteenth day of September, 1892, to the State Insane Asylum at Stockton. The trial resulted in a judgment for the defendant, and this appeal is from the order denying plaintiff a new trial.

There are only two questions presented and discussed by counsel. The first is as to the ruling of the court, upon the objection of respondent, excluding as evidence the commitment upon which the patient, E. E. Eldridge, is held in custody by the superintendent of the State Hospital for the Insane at Stockton. The second involves an attack upon the constitutional validity of section 2176 of the Political Code, imposing upon certain designated relatives the liability for the support and maintenance “of any insane person in a state hospital for the insane to which he has been or may hereafter be committed or transferred.…