I dissent from the opinion of the majority.

This case involves the question of whether California may lawfully or constitutionally refuse to grant Aid to Families with Dependent Children (AFDC) benefits to needy families where the absence of a parent is due to his military service. This case does not involve the question of whether plaintiff’s family is needy, as the family clearly falls within California’s definition of what constitutes a needy family. The affidavits of the plaintiffs which have been filed herein are poignant indictments of both the military pay scales and the efficiency of the military allotment procedures. However, those inadequacies do not trigger an AFDC eligibility; their attacks should be on the military establishment rather than on the welfare administration of the State of California.

The question here presented is squarely one of the intent of Congress; the language of the statute and the rights of States to make their own rules in accordance with the Act without legislation by the Federal Courts.

California participates in the Federal Government’s AFDC program, which was established by the Social Security Act of 1935. The Act’s purpose is to aid needy children who have been deprived of parental support or care by reason of the death, continued absence from the home, physical or mental incapacity of a parent.

The State of California, in order to receive Federal funds for the AFDC program, is required to submit a plan to the Secretary of Health, Education and Welfare (HEW). The plan must conform to the Social Security Act and to the regulations promulgated by HEW.

The legislative history of the original Social Security Act discloses an intention to leave considerable flexibility to the States in fashioning the eligibility standards to be applied in their AFDC programs. Thus, the committee reports, in discussing the prohibition in the Social Security Act, Sec. 402(b) of durational residence requirements in excess of one year, state:

The Congressional debates shed light on another dimension of the same question. One element of the definition of “dependent child” in the original Sec. 406, 1 as now, is that the child be living in the home of one of the relatives enumerated in the Act. However, it was clear the States might choose to exclude children living with certain of those relatives:

While there is no legislative. history containing comparable statements with *1276 respect to age, (1) the intent to leave the description of eligibility to the States in the areas documented above and (2) the fact that the list of relatives and the age limit are dealt with in parallel fashion in the definition of “dependent child”, support the conclusion that similar latitude was to remain available to States to impose lower age requirements. And there is no affirmative evidence to support an argument that age should be treated any differently from any other element of the definition.

The general intention of the Congress is indicated by the language contained, then and now, in Sec. k01 and corresponding sections of the other titles of the Act, that the purposes of the statute are directed to “enabling each State to furnish financial assistance, as far as practicable under the conditions in each State,” to needy dependent children or the other designated groups.

Whether a state would cover all those encompassed by the Federal matching definition depends on what, from the State’s viewpoint, is practicable in the State, whether such coverage relates to an age limit or participation in a particurlar program, such as Aid to the Blind.

Further, it should be noted that the Congress did consider and legislate with respect to the matter of exclusions of dependent children from the program. Under Sec. 402(b) the Department could not approve any plan which imposed a durational residence requirement of a year or more. This was done with the knowledge that many States were currently implementing, in their own relief pro-, grams, eligibility requirements which demanded residence far in excess of one year. In summary, the Congress directed approval of any State plan for Aid to Dependent Children which complied with the requirements of Sec. 402(a), and did not contain any of the restrictions prohibited by Sec. 402(b). Neither of these subsections dealt (nor does either currently deal) with the question of age limits below those adopted to delineate the bounds of Federal matching.

Title I of the Social Security Act, 2 authorizes the Federal-State program for Old-Age Assistance. In the original act the statutory pattern of Title IV was followed in Title I. However, with respect to the aged, the Congress did not wish to give the States freedom to set eligibility requirements predicated upon age. Thus, while the Act defined “old-age assistance” (i. e., those payments by States which would earn Federal matching) as “money payments to aged individuals,” Sec. 2(b) (which corresponds to Sec. 402 (b) in Title IV) prohibited approval of a plan which imposed an age requirement of more than 65. 3

Similarly Title X, 4 establishing the program of Aid to the Blind, shows a Congressional awareness of the issue of permitting an age limitation. Unlike the program of old-age assistance, Sec. 1002(b) (corresponding to Secs. 2(b) and 402(b)), which enumerated the limitations on eligibility, contained no provision relating to age. As is apparent from the legislative history of Title X, the Congress was aware of this omission. The Senate Report said:

*1277 Several conclusions follow logically from the foregoing:

(1) In 1935 Congress was aware of the possibility that States would impose conditions based on age as part of the eligibility requirements for the Federal-State public assistance programs;

(2) Congress legislated without ambiguity where it wished to express a policy in this regard (e. g., Old-Age Assistance) ; and

(3) The statutory provisions prohibiting exclusion (or requiring inclusion) of all members of a certain class were placed in Sections 2, 402, and 1002, the sections pertaining to State plans. Consequently the question of an individual’s eligibility vis-a-vis the State was never dealt with in the definitions contained in Sections 6, 406 and 1006, which only set forth the outer limits of Federal financial participation.

Although the States are given wide latitude to frame eligibility standards for their public assistance programs, their discretion is not absolute. States have always been limited by the enumeration of certain prohibited eligibility conditions discussed supra. In addition, since the earliest days of the administration of the Social Security Act, the states’ freedom to fashion their programs has been circumscribed by what has come to be known as the (constitutional) doctrine of equitable treatment.

Soon after the enactment of the Social Security Act it became apparent that administrative interpretation would be necessary in order to preclude the States from making unreasonable classifications within their public assistance programs. The principle requiring that States provide equitable treatment of persons in like circumstances was formulated, based upon a principle of Constitutional law, the overall purpose and intent of the public assistance titles, the legislative history of the Act and individual plan requirements. This principle has been applied repeatedly over the past thirty-three years.

It has been applied by the Department to prohibit arbitrary exclusions of persons who come within the scope of the matching definition, where the criteria upon which the exclusion is based bear no reasonable relationship to the purposes or scheme of the Federal statute. For example the Department has consistently refused to allow States to fashion their public assistance plans to exclude Indians or illegitimate children, as such. Since the criteria set out in the definitions in Section 406 are often indicative of the objectives of the program, they may have a bearing on the conclusion which the Department reaches concerning whether a particular State eligibility requirement results in equitable treatment.

Thus, while Section 406 enumerates various relatives with whom the needy child must be living, States are not required to include all such relatives within their implementing definition of “dependent child.” It is clear that one of the original purposes of Title IV was to provide assistance to needy children living in homes in a family-like setting and it has not been considered inconsistent with equitable treatment for a State to exclude children who are living with relatives of the most distant degree of relationship enumerated in the statute. 5 Conversely, were a State to propose a definition of “dependent child” for purposes of its AFDC program which included children living with any of the enumerated relatives except the natural mother or father, such a proposal would be unacceptable to the Department. It would not violate any express provision of Title IV but clearly would be so contrary to one of the purposes of the statute as to be violative of equitable treatment.

*1278 Since a State may narrow the definition of “dependent child” for purposes of establishing criteria for its AFDC program, so long as it does not result in an unreasonable classification, the failure of a State to take advantage of a liberalization of the definition by the Congress is not considered unreasonable. In other words, if a State elects to retain a classification that had, prior to an amendment to Title IV, set the outer bounds of Federal matching, that classification cannot be said to be inconsistent with the purposes of the Act since it represents a classification previously made by the Congress.

HEW interprets the “continued absence” requirement for “dependency” and AFDC eligibility in a fashion consistent with the above. HEW’s interpretation of the continued absence requirement is set forth in Part IV of the Department’s Handbook of Public Assistance Administration”, which, in Section 3422.2 thereof provides as follows:

It must be noted that the HEW interpretation is a strict one. The absence must be such as “to interrupt or to terminate the parent’s functioning as a provider” and the “duration of the absence precludes counting on the parent’s performance of his function.” HEW gives as an example of the type situation falling within its interpretation the case where the father deserts the family and disappears. Thus, HEW treats the “continued absence” situation as something akin to death or incapacity, treating all three situations alike, requiring that dependency of a needy child arises only upon a serious and substantial destruction of the expectation of economic protection being available to a child from his parent.

It is clear since in Section 3422.2, HEW specifically defers to the states to determine whether as a matter of state policy, service in the armed forces will be treated as “continued absence.” Under Section 3422.4 Federal financial participation is available if the state includes military-duty, absence within its eligibility policy, but HEW requires only that “within this interpretation [by HEW] of continued absence the state agency in developing its policy will find it necessary to give consideration to such situations as * * * service in the armed forces or other military service *1279 * * * ” HEW Handbook, Part IV, Sec. 3422.2 supra.

Therefore, HEW allows the State to go either way:

California chose to exclude servicemen, and it was within its legal right to do so.

The serviceman category is a distinct and separate entity apart from the groups alluded to. Service people are transitory in nature and could pose a serious problem to the taxpayers of a state. For example, suppose the U. S. Army saw fit to move the majority or large numbers of its forces into the State of California, in said event the taxpayers of California would have to bear the additional costs of allowing AFDC grants, which could, and probably would, bankrupt the State. The HEW regulations gave the states a choice and the choice is a proper and legal one (some states have granted aid to the families of servicemen, others, along with California, have not). 6

The Congress and HEW could have just as easily made mandatory inclusion of servicemen within the interpretation of continued absence from the home. They chose not to do so.

Some may feel that the exclusion of servicemen’s children from AFDC eligibility may be a manifestation of unsound social policy, but the Fourteenth Amendment can no longer be brought to empower federal courts to strike down state laws “because they may be unwise, improvident, or out of harmony with a particular school of thought.” Williamson v. Lee Optical Co., 348 U.S. 483, 488 , 75 S.Ct. 461, 464 , 99 L.Ed. 563 (1955). In this “era of priorities” it is encumbent upon and the duty of states, in the utilization of its tax dollars, to be ever vigilant of the welfare of its total citizenry. In this case, the plight of the plaintiffs should be directed to the rightful source, the U. S. Government * * * to do otherwise would be in violation of the state’s right to exercise its right of choice under the law. California has done nothing more than exercise its right of choice after having given decision to the categories of consideration as set forth in the HEW Regulations Sec. 3422.2.

I would find that the California Department of Social Welfare Regulation EAS Sec. 42-350 is constitutional, and that defendants are entitled, therefore, to a judgment in their favor as a matter of law.

. See. 400 when used in this title—

. 42 U.S.C. § 301 et seq.

. Except that, until January 1, 1940, States were allowed to impose a requirement of 70 years.

. 42 U.S.C. § 1201 et seq.

. Such a result is clearly supported by the remarks of Senator Harrison, supra, p. 3.

. A State Survey submitted by plaintiffs in Stoddard v. Fisher, Civil No. 11-168 (S.D.Maine) which indicates: