Town of Bristol v. Town of Braintree , 10 Vt. 203 ( 1838 )

The opinion of the Court was delivered by

Williams, Ch. J.

The case comes before us on exceptions to the judgment of the county court, overruling a motion to quash the proceedings.

The first exception to the proceedings of the magistrates is, that the constable, who served the process issuing from the magistrate, was the person who made the complaint. It appears that Mr. Case was overseer of the poor of the town of Bristol, as well as constable of the town.

The proceedings to be had before magistrates, for the removal of paupers, are pointed out by statute. The complaint must be made by the overseer of the poor, and the warrant must issue to the constable of the town, to bring the pauper before the magistrates. It is no objection to any of the persons who are to perform the several duties required by the statute, that they have an interest in the removal. The magistrates may be inhabitants of the town. The hearing before them is ex parte, and but initiatory to the litigated proceedings which may be had when any other town becomes interested, in consequence of an order of removal. The statute, in its enactments, and in the form given, requires that the warrant should be directed to, and served by, the constable, and he is no more in interest because he happens to be the overseer of the poor and the complainant. We can see no good reason why the enactment of the statute should be dispensed with, nor can we see any thing improper in the constable serving the warrant, when he has preferred the complaint as overseer of the poor.

It is also objected that it does not appear that the pauper was examined on oath.

The statute requires the magistrates to examine the pauper upon oath, and this must be done when it is practicable. This examination is the evidence or proof upon which they are to act. The form of making the record, as prescribed in the statute, and which it appears was followed by the magistrates in the case before us, is, that, “ after hearing the proofs “ and allegations, and examining the same, it is considered,” &c. From this, it sufficiently appears, that they made all necessary examination, whether of the pauper or others. It is not required that they should state, in the record, that the pauper was examined, and it would be wholly superfluous and unnecessary to set it forth,

The third and fourth exceptions have been abandoned. Whether notice was given, or notj is not to be certified by the magistrates, as it will not appear from any proceedings had before them.

It is further objected, that the names of the family are not inserted in the order of removal. The statute, neither in its enactments nor form, requires that the names of the family should be inserted in the complaint, order, or warrant of removal. The third section contemplates a proceeding only against the pauper. The form is general, to remove the pauper with his family and effects, and we can see no more difficulty in executing the warrant, by removing the family, without their being’ named, than in removing their effects, when not particularized.

If, however, the order is bad, on this account, as it respects the family, it should only have been quashed as to the family, and would have been good as to .the pauper, and should have been affirmed as to him.

To avail themselves of this objection,the town of Braintree should have made it appear that the pauper had a family, and the motion should have been to quash the order, as to the family. But they would not have been entitled to have the whole order quashed, which is made in the form given by the statute,and which might have been bad if not made in that form, unless it had been made to appear that .there was a family, on which it was to operate, and who, by the order, were to b,e removed, and made chargable, to the town of Braintree.

It is no where alleged or stated that the pauper had any family who were to be removed.

The judgment of the county court must, therefore, be affirmed.