Town of Braintree v. Town of Westford , 17 Vt. 141 ( 1844 )

The opinion of the court was delivered by

Royce, J.

The question now presented is the same which was decided in Strafford v. Hartland, 2 Vt. 565. That case must, consequently, govern the present, unless the question has since become affected by a change of statutes.

Prior to the act of 1817 it was not contemplated that an appeal would be taken until .after an actual removal of the pauper, as no means were then provided for giving notice to the defendant town, except by executing the warrant of removal. Accordingly the act of 1797, in authorising an appeal “to the county court, next to be holden ” &c., was always understood to mean the term of the court next after the removal was actually made. The additional act of 1817 directed that all appeals from orders of removal should be taken to the Supreme court, and to the term thereof to be holden in the same county “ next after notice of said order shall be given to the adverse party.” It was also required, by a subsequent section of the act, that an attested copy of the order of removal should be left with some overseer of the town, to which the removal was ordered, within thirty days after the making of such order. By the judiciary act of 1824 the county courts were again invested with appellate jurisdiction in all pauper cases. The case then arose, which has been referred to.- The facts were precisely similar to those in the present case, and it was decided, upon full argument and consideration, that the - appeal could not be sustained.

It will be borne in mind that the act of 1817 spoke only of an appeal from the order of removal; so that, had the right existed to appeal from the warrant of removal alone, that right was not affected by the act, and such an appeal might still have been taken to the county court. And the same right must have continued, after the entire appellate jurisdiction was restored to the county courts by the act of 1824. But all this is fully denied in the case cited, by which it was settled, that, as the statutes then stood, the settlement of the pauper was conclusively fixed by the order of removal, when that had been notified to the defendant town according to the statute, and no appeal had been taken as therein limited ; and that no right was given to appeal from the warrant of removal, after the order had thus become final and unalterable.

That determination was manifestly in accordance with principle and analogy. The legitimate purpose of an appeal is to revise' some decision of the inferior tribunal, and not merely to qorrect abuses in the execution’ of their sentence, or judgment. It is true, that, when the appeal has been taken in season to try the validity of the order, such subsequent irregularities have been examined upon amotion to quash, as in Barnet v. Concord, 4 Vt. 564. But this does not prove that they ever constitute, of themselves, a sufficient ground of appeal. It is otherwise with those which precede the order, since they tend to impeach its validity.

Such being the settled construction under the former statutes, it is clear that no change has been effected by the late Revision. The 8th section of the present statute enacts, like that of 1797, “ That? if any overseer shall think himself aggrieved by any order, or warrant, of removal, he may appeal therefrom,” &c. And the 11th section requires a copy of the order to be left, as directed by the act of 1817. The term of the court, to which the appeal must be taken, is at present only designated, as in the act of 1797, by the word “ next,” which is not made expressly to refer to the time of giving notice of the order, as it was by the act of 1817. But since we are neither to treat the requirement in the 11th section as useless and nugatory, nor to suppose that two opportunities for taking an appeal in the same case were intended to be given, the word “ next ” must here be understood with the same reference which was expressed in the act of 1817. The decision in Strafford v. Hartland, has, therefore, the same force and authority under the present statute, that it possessed under those which were superseded by it. The conclusion is, that the appeal in this instance, being from the warrant of removal, when the previous order was no longer open to litigation, was unauthorised by law, and was properly dismissed.

Judgment affirmed.