Directors of the Poor & House of Employment v. Overseers of the Poor of Walker Township , 7 Pa. Super. 303 ( 1898 )

Opinion by

Rice, P. J.,

Before a pauper is removable it is necessary that he should have become, or be likely to become, chargeable to the district which undertakes to remove him, for unless this be the case justices have no jurisdiction, and for want of jurisdiction an order of removal will be quashed: Cumberland v. Jefferson, 25 Pa. 463.

But on the hearing of an appeal from an order of removal' which alleges all the essential jurisdictional facts, the order of relief is generally received as sufficient proof of the chargeableness of the pauper to the district obtaining the order of removal, and, hence, of the jurisdiction of the justices to act in the prem- ’ fees: Milton v. Williamsport, 9 Pa. 46; Cumberland v. Jefferson, 25 Pa. 463; Laporte v. Hillsgrove, 95 Pa. 269, 278; Poor District v. Poor Asylum, 167 Pa. 254. Two reasons are assigned by the appellants’ counsel for denying the -applicability of this general rule to the present case: first, because the order of relief was obtained for the purpose of having Dr. Smith and his wife placed in a hospital for care and treatment, and not for the purpose of making them pauper charges on the township of Walker; second, because Mrs. Smith and her daughter were never charges upon said township, they not residing in the township, and the order of relief having been applied for without their knowledge or consent. But the court has found upon sufficient evidence that Dr. Smith and his wife and child were a poor and dependent family, and there is no finding, or sufficient evidence to warrant a finding, that the order of relief was obtained pursuant to any agreement, binding or otherwise, with the overseers of Walker township, that Dr. Smith and his wife should be placed in the hospital at Harrisburg. As to the conclusiveness of the findings of fact, where there is competent evidence to support them, we need only refer to some of our own cases: Spring Township v. Walker Township, 1 Pa. Superior Ct. 383; Lunacy of Christy, 2 Pa. Superior Ct. 259; The fact being that the persons were proper subjects of an order of relief, the intention of the person who acted on their behalf in obtaining it is immaterial so far as the present inquiry is concerned. It was the duty of the overseers to obey it by furnishing them qecessary relief until their last legal settlement could be ascertained and they be removed thereto. As to the second objection it is to be remarked, that, while it is true that there is no finding that the order of relief was obtained by the express direction of Dr. Smith or his wife, there is no evidence to warrant an affirmative finding that it was obtained without their knowledge, much less against their consent. Indeed their condition was such that some one must act on their behalf, and no person could more appropriately do so than his brother. The settlement of a married woman follows that of her husband, and this is as true of his quasi as of his legal settlement. Hence when an order of relief for Dr. Smith and his family was placed in the hands of the overseers of Walker township where he resided, the overseers were justified in acting upon the presumption that both he and his wife were proper subjects of relief until they could be removed to their legal settlement,' although for the time being she was living with her mother in' an adjoining township. As between the two townships, Walker was properly chargeable until both could be removed.

This is not the case of a removal without a previous order of relief or notice to the party to be removed, or of an order of relief surreptitiously obtained for the mere purpose of preventing the party from obtaining a settlement in the district in which he resides. It is plainly distinguishable from Gilpin v. Parks, 118 Pa. 84, and our own case of Edenburg v. Strattanville, 5 Pa. Superior Ct. 516; and without further recital of the facts, which are fully and clearly set forth in the opinion of the court below, we conclude, that the court committed no error in point of law in holding, that Dr. Smith and his family were proper subjects of an order of removal.

The meritorious question in the case is whether they had acquired a legal settlement in Walker township. This is so clearly and satisfactorily disposed of in the opinion filed in the court below that little need be added by us. In order to give a settlement under clause III, section 9, of the Act of June 13, 1836, P. L. 542, the person must stand in the relation of a tenant to the premises. One who makes a special contract with another person for board in his family including food and lodging, is not a tenant but a boarder, and by no ingenuity can the contract be construed as a leasing of real estate within the meaning of the statute. A lease cannot fairly be implied where none was intended, and the fact that such person occupies -a separate sleeping room does not warrant the implication that he is a tenant,'there being in him no distinct and exclusive title to a particular part of the premises : Walker v. Marion, 148 Pa. 1.

The answer to the appellants’ third point of law contains all that need be said concerning the proposition that Dr. Smith had gained a settlement by payment of taxes. The mere fact that he voted in the township would not raise the presumption that he had qualified himself by- payment of taxes, especially in the face of his uncontradicted testimony that he had not paid any.

The associate judges were present at the argument of the case, and when the opinion and findings of fact were filed and the decree was entered. There is nothing on the record nor indeed in the certificate of the president judge, to show that they did not concur either in the decree or in the findings on which it is based; therefore these must be taken as the action of the court and not of a single member thereof. It is none the less the decree of the court because the findings of fact and conclusions of law were framed, and reduced to writing by the president judge, and this is all that can be implied from his certificate.

It would unnecessarily prolong this opinion to discuss the twenty-five assignments of error separately. We have touched on the main questions discussed by counsel, and after a careful examination of all the assignments find no error calling for a reversal of the decree of the court below.

The decree is affirmed and the appellants directed to pay the costs.