Town of Tiverton v. Town of Fall River , 7 R.I. 182 ( 1862 )

Bratton, J.

It appears from the statement of facts, agreed upon by the parties, that on the first day of February, 1858, the town council of the town of Tiverton, in the county of Newport, upon complaint to them made by the overseer of the poor of said town, regularly adjudged, that the said town of Fall Eiver was the last place of legal settlement, within this State, of the pauper, Edward B. Durfee, and ordered him to be removed thereto; that by virtue of said order, he was removed to said town of Fall Eiver, and delivered to the overseer of the poor of said town, with an authentic copy of the order, of removal; and that no appeal was taken from said order, by said town of Fall Eiver. It does not appear, from the statement of facts, that since said order, the pauper has gained any new settlement in said town of Tiverton. If this order is held to be conclusive upon the town of Fall River, as to the place of settlement of the pauper on the first day of February, 1858, then the plaintiffs claim that they are entitled to recover; but if the town is at liberty to impeach said order, and to submit evidence to show where the last place of settlement of the lunatic was on said first day of February, then the defendants claim that upon the statement of facts, he was not settled in Fall River, and that the plaintiffs have no right to recover.

By the provisions of Chap. 51, section 13, of the Revised Statutes, the town council is empowered, upon complaint of the overseer of the poor, to inquire “ in what town the pauper was last legally settled, and to adjudge and determine to what town he belongs, and .to order him to be removed thereto.” The statute provides, that the town to which the removal is made, may, by the overseers, appeal from such order and adjudication, jf aggrieved thereby. These provisions are the same in substance as those of the statutes 13 and 14, Charles II., ch. 12, where the order is made by two justices, and an appeal to the sessions is given to the parish to which the order is made. Indeed, the statute of Charles II. was in force here until 1748, when this power to remove' was given to the town council, because that statute “ was not so agreeable to the constitution of the government, as might be.” Under that statute it was and is well settled, that an order of removal by two justices, unappealed from, is conclusive; and that no evidence can be given to impeach such order, or to show that the settlement of the pauper was, at the time of the order made, elsewhere than by such order is adjudged. See Rex v. Inhabitants of Bakewell, Burro. Sett. Cases, No. 60; Rex v. Inhabitants of Woodchester, Ib. No. 67; Rex v. Inhabitants of Livington, Ib. No. 96; Rex v. Inhabitants of Silchester, I b. No. 176. In this last case, the paupers had been sent by an order, from the parish of Newberry to that of Enborn, by the names of George Wise and Jane his wife. Afterwards, the parish of Enborn ascertaining that the said Jane was not married, an order of removal was made, whereby she was removed, as a single woman, back to the parish whence she came. It was held, that the first order was conclusive upon the parish of Enborn,— they not having appealed, and that the parish could not now question the fact that the pauper was married; and so clear was this to the court, that they declined to hear the counsel for Silchester, and said, that, however this matter might be, if it were res integra, “ yet it being fully settled, was a reason for them not to depart from it now“ for that stare decisis was a good rule, and never more so than in cases of the settlement of paupers.” “ If she were not his wife, it might have been controverted; but as they have neglected to appeal when they had a proper opportunity to-show it, they are estopped to say so now.”

This construction followed the statute when it came into use here, and continued when the statute was so altered as to make it more agreeable to the constitution of the government here. We think there has never been any question here upon this subject, more than in .England; and we are of opinion that the order made by the town council of Tiverton, unappealed from, as it was, concludes the town of Fall River, and estops that town from denying that the settlement of the lunatic was, at the time of the order made, in the town of Fall River ; and it appearing further, that no settlement has, since that time, been gained by the pauper elsewhere, his settlement must be held to be in that town.

It appears from the statement submitted by the parties, and agreed to by them, that the lunatic, the expenses of whose maintenance at the hospital is sought to be recovered in this suit, was committed to that institution by the overseers of the poor of the town of Tiverton, under the provisions of section 11, of Ch. 58, of the Revised Statutes, — “ Of the restraint and cure of the insane,” — and not by a justice of the peace, under the provisions of the first three sections of that act. If committed by a justice of the peace under those provisions, the costs and expenses of the lunatic, if he has no property wherewith to pay them, is chargeable, in the first instance, to the town in which he was apprehended ; to be recovered, however, by such town, of that in which the lunatic was last legally settled, when such settlement shall be ascertained. The liability is incurred, in such case, without any act of the town or of its overseers; and it is in such case only, that a town is made liable for the support of a pauper not legally settled in such town.

The eleventh section authorizes the overseer of the poor of any town to place in the hospital insane persons chargeable to such town, if they are paupers. It gives, however, no authority to such overseer to remove to the hospital any lunatic settled in any other town. It makes no provision for the payment of the, expenses of such lunatic. The expenses of such are put upon the same footing as those of lunatics placed there by a parent or guardian, or by relatives or friends, and are to be paid by the persons placing the lunatics there. If placed there by overseers of the poor, their act could only bind the town whose overseers they were, and not the town where the pauper was settled. In order to charge the town where the lunatic was settled, he must be removed thither; and if, instead of making such removal, a town will assume to incur any expenses for the pauper of another town, it must do it at its own proper charge, irrecoverable. The lunatic in this case was placed in the hospital without authority, and without the assent or request of the town of Fall River, where he was settled, and the expenses therefor, though paid by the town of Tiverton, are not recoverable. '

Judgment must be for the defendant for costs.