Town of Essex v. Town of Milton

One town cannot, by virtue of tbe 4th section of the act respecting a legal settlement and providing for the poor, recover the expenses incurred in taking care of, and supporting, a sick pauper, unless there has been an actual removal of the pauper to the place where he or she was last legally settled, or unless such removal be prevented by the extreme sickness or death of the pauper. Quaere, whether there can be a recovery in any case unless the pauper be actually removed, or the removal is prevented by his death. A constable of a town may execute a warrant of removal, if .he can find the person or persons named in it in any part of the state.

This was an action of assumpsit brought to recover the expenses incurred by the town of Essex in the support and maintenance of one Sally Mansjield, a pauper, whose legal settlement was alleged to be in Milton. On the trial in the county court the plaintiffs proved that Almon Mansfield, husband of the; said Sally, was last legally settled in Milton, and was poor; but it appeared ^iat father, Amasa Mansfield, who resided in Essex, was of suf-ficierit ability to support the said Almon and his family. The plaintiffs next offered the proceedings of two justices on the complaint of Caleb Richardson, as overseer of the poor of said town of Essex; to which the defendants objected, because it ought first to be shewn that Caleb Richardson was overseer of the poor at the time he made said complaint: which objection was overruled. The defendants then offered to show that the said Caleb Rich~ ardson ivas not a freeholder at the time of exhibiting said complaint, nor at any time previous thereto. But the court rejected the evidence. The defendants next offéred to shew that there was but one overseer of the poor of the town of Essex, when in fact the law requires the appointment of two at least, and that they must act together in the execution of the duties of their office. But the court overruled this objection, and the complaint and proceedings were read in evidence. The plaintiffs proved that within thirty days from the making said order of removal a copy of the proceedings duly certified was lodged with the overseers of the poor of said town of Milton. A further objection to the record and proceedings of the justices was made, that it did not appear that the said Sally Mansfield was ordered to remove,unless by the general term, that the said Almon and family remove, &c. which objection was overruled. Further testimony was given as will appear by the following special verdict found by the jury. “ In this cause the jury find that the said Almon Mansfield liad “ his last place of legal settlement in the town of Milton; that his “ wife, Sally Mansfield, lived with the said Almon some years “ before the 26th day of October, 1826, and had her legal settle- “ ment in Milton; that sometime during the year 1826, the “ said Almon and his wife Sally removed from Milton to Essex, “ but had gained no settlement in the town of Essex ; that on the “ 26th day of October, 1826, the said Sally fell into the fire and “ was burned; that she was in need of relief, and that the town “ of Essex did furnish such relief as was necessary and proper; “ that the overseers of the town of Essex made complaint to two “ justices, and such proceedings were had that on the 22nd day “ of November, 1826, the said justices made an order of removal; “ that the said Sally could not be removed before the 26th day of “ February* 1827 ; that on that day she was removed on a bed “ placed in a sleigh without the knowledge of the overseers of the “ poor of Essex ; that she was taken to her friends in Burlington ; “ that in the month of April, 1827, she was brought back to “ Essex, where she remained from six to ten days, arid then re- “ moved with her said husband to Si. George ; that at the time “ she was carried from Essex, on the 26th day of February, she “ was still feeble and disabled, and ought not to have been remov- “ ed; that in the month of April, when she was at Essex, she “ might have been removed to Milton ; that the said Almon and “his wife returned to Essex in September, 1827, where they “ have ever since remained; that the town of Essex gave a copy “ of the order of removal to one of the select men of Milton, “ and on the 30th June, 1827, made a demand in writing of the “ amount of their expenditures, which the town of Milton refused “ to pay. “ The jury find the amount of expenditures from the 26th Oc- “ tober, to November 22,1826,the' date of said order of removal, “ to be $105,77; and from that time to the 26th day of Februa- “ ry, 1827, the time when she was first removed, to be $ 198,05; “ and if the court should be of opinion that the plaintiff ought to “ recover the whole expenditures, then the jury say that tbede- “ fendants did assume and promise as the plaintiffs have alleged, “ and find for them to recover of the said defendants the sum of “ 303 dollars 82 cents damages, and their cost. But if the “ court be of opinion that the plaintiffs have no right to recover for “ any expenditures before the order of removal, then the jury find “ for the plaintiffs to recover of the defendants $198,05 damages “ and their cost. But if the court should be of opinion that “the plaintiffs ought not to recover, then the jury find that the “ defendants did not assume and promise — and find for them to “ recover their cost. A.Bostwick, foreman.” The county court rendered a judgment for the plaintiff, but for how much does not appear. The defendants excepted, and the cause was ordered to the Supreme Court, and was now heard on all the points raised at the trial in the court below, and on the special verdict iound by the jury. Those parts, only, of the arguments of counsel which relate to the point on which this Court finally decided the case, are here inserted. Argument for the plaintiffs. — The actual removal of the pauper is not a condition precedent to the right of recovery. It is made the duty of every town to maintain their own poor. (Stat. 370, sec. 2.J If-any stranger shall come into any town and become chargeable, the overseers may mate complaint and cause him to be removed. (Stat. 372, sec. 2.) But if he is .sick and cannot be removed, the overseers are compelled to support him at the expense of the town where he has his settlement. (Stat. 370, sec 4.) This seems to be a reasonable view of the subject $ the several parts making one consistent whole, and no condition nor limitation can be proposed without involving the whole in doub't and frequently requiring impossibilities. By no construction of the 4th section can the removal of the pauper be a condition of recovery. It is not required by any legal nor grammatical construction of the act. The words “ and after the recovery of such stranger, shall cause him or her to he removed,” are merely directory to thé overseers, and isa matter between them and the plaintiff town. They have no bearing upon the rights nor duties of the contending towns, and so far as regards them,are surplussage and might be wholly stricken out. The statute requires the plaintiff town to support the pauper, and commands the defendant town to pay the expense ; but it no where prescribes that the right to recover shall be upon removal. The plaintifi town may remove, but if they do not, their right of recovery is not abridged. The right to remove is for the benefit of the plaintifi town, and it is not to be supposed that the legislature would require as a condition precedent the performance of an act which can be of no service to defendanttown. If the right of plaintiff town to recover depended upon removal, they might frequently lose it without any fault, notwithstanding their utmost vigilance ; and the case before the court is a striking exemplification. By the terms of the act the justices are to order the pauper to remove by a day certain, and it is only on his neglect to comply that a warrant can issue. It would be a strange construction to deprive the plaintiffs of their rights because the pauper had absconded. It may further be remarked that no warrant cap issue until an order has been made, and the justices, by the terms of the statute, are to examine the pauper, and cases of extreme sickness or derangement of mind may frequently render this impossible. If we are right in our view of the subject, the subsequent return of the pauper in April can make no difference. Indeed, it does not appear that plaintiff town knew of her return ; and besides, having once departed from the custody of the town, it may be doubtful whether her return gave the town any power over her. Her return in September, 1827, was subsequent to the commencement of this suit. Argument for the defendants. — The town of Milton is not hol-den for this account, because the pauper has not been removed, especially as she might have been removed a long time before demand for payment was made. The pauper might have been removed in April. The family removed to St. George in April, but in September following returned to Essex,where they have remained. ever since. From the wording of the statute it Cim'TEWBBw seem to be imperative upon the town making the order to remove the pauper previous to any right to recover, unless he should die. Now as the pauper has not been removed, and is yet living, we r r . , . r i J . contend that from the evident construction oi tne two sections when read together, the settlement town cannot be made chargeable, unless the pauper is brought to them, provided he is alive. There is good reason for this. If the town where the stranger resides, choose to get rid of this expense, it is but reasonable they should return the stranger to the settlement town, that they may make their own calculations for future support. It might be too, that the pauper, through the intervention of friends, would indemnify the town against the charges already incurred. There is no relaxation of this rule, unless the pauper dies. But if the court should consider, that according to the equitable construction of the statute, the settlement town ought to be made liable, provided the pauper should abscond, so they could not remove him, still there would be a difficulty in the plaintiffs’ case on account of the facts. In April the pauper was in Essex, and might have been removed. In September following she returned to Essex from St. George, where she has remained ever since. Nor do we believe the power of the order is lost as soon as the pauper leaves the limits of the town in which it is made. We see no reason why the town of Essex could not have taken the pauper from the town of St. George. The order is that the pauper remove to his former settlement,and unless he does so remove, the further order is that a warrant issue. One argument is that unless he previously remove to his settlement town, the officer holding the warrant can take the pauper from any place and carry him to the place to which he was ordered to be removed. The second section of the statute enforces this argument, in which it is made the duty of the town in which the pauper resides, to take effectual measures to prevent such poor from strolling into any other town.