Town of Essex v. Town of Milton , 3 Vt. 17 ( 1830 )

The opinion of the Court was delivered by

Williams, J.

This action is brought under the provision of the 4th section of the act defining what shall be deemed and adjudged a legal settlement, he. to recover the amount paid by the town of Essex for the support, maintenance and cure of a pauper, whose legal settlement is alledged to be in the town of Milton, but who was sick and disabled in the town of Essex.

On the trial of the action in the county court, a variety of objections were taken to the admission of the evidence offered, a special verdict was found and judgment rendered thereon for the plaintiffs,and the cause now comes before this Court for are-exam-¡nation of the several questions decided by the county court.

It will not be necessary for us to decide all the questions which are presented in the case, and which have been argued, as we are all agreed that on one of the most material points presented by the special verdict, the law was with the defendants, and judgment should have been rendered accordingly.

It appears from the verdict that Almon Mansfield and his wife Sally, living with him,had a legal settlement in the town of Milton ; that in the year 1826, they went to the town of Essex to reside ; that on the 26th of October, 1826, the said Sally fell into the fire, was badly burnt, was in need of relief and support from the town, .and that such support was offered by the town of Essex ; that on the 22nd day of November, 1826, on the complaint of the overseers of the poor of the town of Essex, two justices of the peace in pursuance of the regulation of the statute, adjudged the settlement of Mansfield to be in the town of Milton, and ordered him to remove with his family and effects on or before the 27th day of the same November. The verdict further finds, that the said Sally Mansfield could not be removed before the 26th day of February, 1827, probably on account of the disability occasioned by the accident before mentioned, although this is not distinctly stated ; that on the 26th February, 1827, she was carried, without the knowledge of the overseers of the poor of the town of Essex, to her friends in Burlington ; that at this time she was sick and disabled and ought not to have been removed ; that in the month of April, in the same year,she came back to Essex, remained there from six to eight days, then went with‘her husband to the town of St. George, and in September, 1827, came back with her husband to Essex, where they have ever since remained; that in the month of April, when she was in Essex, she might have been removed without any danger, and nothing is said as to her situation after September of that year. The order of removal was unap-pealed from. The proper demand in writing, of the town of Milton, was made by the town of Essex, for the expenses incurred, anda refusal on the part of Milton to pay the same_ is also found.

The question in this case arises upon the construction of the section of the statute before mentioned. This action being founded on the statute which creates the right and gives the remedy. it is obvious that the plairitifFs cannot receiver unless a-case within its reasonble meaning and intent is made out. Independent of the positive enactment of the legislature on this subject, there aré no principles either of equity or the common law which would cast thd burden of the expenses incurred in support of the pauper in question on one of these contending towns more than on the other. - But in the section of the statute abové mentioned it has beeh. provided, that in certain cases where one town is under the necessity of providing for the poor belonging to another, and the circumstances of the persons requiring relief and support as paupers are such that they cannot be sent to the place of their legal settlement, such town may recover the charges or expenses incur-ed for the relief and maintenance of such poor persons. By the third section of the act, any two justices of the peace, on a complaint regularly made to them, may málte an order that any persons chargeable,or likely to become chargeable,to the town where they reside, shall remove to the place of their legal settlement,and by their warrant may actually remove such persons with their families to the place of their settlement; and it may be observed that whatever costs or expenses may have been incurred by the town procuring this order to be made, either for the support or maintenance of the persons removed, or in making the enquiry and examination before the justices, or in executing the warrant of removal, must in ordinary cases be'paid by such town without any remedy against the town where such persons are settled and to which they are removed. The only exception to this is found in the fourth section of the act which is a proviso to the third,and it provides for those 'cases where from sickness or other disability the order or warrant of removal cannot be executed. By this section it is made the duty of the overseers of the poor of the town which procures the order of removal, in case the order cannot be executed without endangering the life of the person to be removed, to provide for his of her support, maintenance and cure, and after recovery, to cause him or her to be removed, and all the expenses occasioned by such sickness, maintenance or cure, as well as the expenses of the removal, are to be paid by the town where the poor person is settled ; and if the removal is prevented by the death of the pauper, the expenses before mentioned are then to be paid by the town where the settlement of the pauper is. From both these sections it is apparent that the legislature meant that no town should have a claim on another for any expenses arising from the support of a pauper where an order of removal could be made and executed; but if it could not be executed without endangering the life of the persons who were the subject of it, then the expenses arising after the order was made, and until it could he executed, or until the death of the pauper, should be paid by the town where his or her settlement is adjudged to be; but no part of the expenses before the order was made can be recovered. This point was decided in the case of Jamaica vs. Windham, and also in the case of the town of Londondery vs. the town of Windham, 2d Vt. Rep. p. 149; and the case of St. Albans vs. Georgia, in Brayton, p. 177, was overruled.

It is expressly made the duty of the overseers of the poor of the town procuring an order of removal, the execution of which has been delayed by the sickness or disability of the pauper, to cause him to be removed after his recovery; and when this is done, or when it is prevented by the death of the pauper, then they have a claim on the town where the settlement is found to be for the repayment of the expenses incurred subsequent to the order. It would seem that as the legislature have made provision for a recovery of these expenses in two cases, and in two cases only, viz. when there has been an actual removal, or where such removal has been prevented by death, they did not intend to give a right or a remedy in any other case; and a part of the Court are of opinion that there cannot be a recovery in any case under this statute, unless the pauper has been actually removed to the place of his settlement by his voluntary compliance with the order, or by being carried thither by a warrant of removal, or unless this removal was prevented by his death before the order could be executed, and that such removal or death must be averred in the declaration. A statute similar to ours exists in Great Britain, by which the magistrates are empowered to suspend the execution of an order of removal of sick or infirm persons until they are satisfied it can be executed without danger to the persons who are the subjects of the same, and the charges incurred by such suspension are to be paid by the parish to which the removal is made, which are to be levied by virtue of a warrant of distress issued by the justices. The statute itself we have not had the opportunity of examining. But we find that under this statute in the case of the King vs. the Inhabitants of Chagford, (4 Barn. & Ald. 235,) it was decided that the charges incurred during the suspension of an order of removal were to be repaid by the parish to which the order was made in two cases only, viz. the death or removal of the pauper; and when the pauper became irremoveable in consequence of having a freehold estate descended to him, no order could be made for the payment of the charges.

Adams and Bailey, for plaintiffs. Allen and Whittemore, for defendants.

But the case before us does not require us to make a decision to this extent, and say th at there can be a recovery only in case of the removal or death of the pauper. We all are agreed the statute contemplates that the pauper should be sent home to the place of his settlement if practicable, and although all the Court will not say that a case may not arise where a sufficient reason can be given, and alleged, for not making an actual removal, yet we are all of opinion there is no such reason existing in the present case. The pau-perwas carried toiler friends in Burlington in Feb. 1827,-although it might have been imprudent for the overseers of the poor of the town of Essex then to have executed the warrant of removal. In the month of April she was six or eight days in Essex : from that time until September she was in St. George, in the same county : she then returned to Essex where she has ever since remained, •and no satisfactory reason is given why she was not removed during- this time. I have no doubt the constable of Essex might have executed the warrant if he had found the persons named in it in any part of the state : but it seems no attempt was made to execute it, either during the time she remained with her husband in Essex, or with her friends in Burlington. Under these circumstances the Court are all agreed that the town of Essex cannot recover of the town of Milton, in this case.

Judgment must, therefore, be rendered on the verdict for the defendants.