26 N.W.2d 249 | Wis. | 1947
Lead Opinion
Holland v. Cedar Grove was decided February 7, 1939. The statute there under consideration was sec. 49.03 (8a), Stats. of 1937. By ch. 242, Laws of 1939, sub. (8a) of sec. 49.03 of the statutes of 1937 was repealed and recreated and as so recreated became a part of the statutes of 1939. The amendment of 1939 disposed of most, if not all, of the objections urged against the section in the case of Holland v. CedarGrove, supra.
One of the principal objections urged against sec. 49.03 (8a) of the statutes of 1937, was that sec. 49.03 (8a) of the statutes of 1937 did not do away with a pre-existing statutory action in favor of a county which had paid for the relief of a pauper having a legal residence elsewhere. By the amendment it was provided: *621
"(8a) (a) All relief claims by one municipality or county against another municipality or county which have been disallowed or which have not been acted upon as required by statute, may be prosecuted before the industrialcommission which is hereby given the exclusive power andduty to hear, try and determine such controversies and to render its findings therein. . . ."
We have given the arguments of counsel careful consideration and see no reason for reversing the conclusions reached in Holland v. Cedar Grove, supra.
The amendment certainly removed the objection that the previously existing statutory action had not been destroyed.
Second, it is undisputed in this case that if Maurice Connery did not gain a residence in the county of Dane between August 1, 1932, and August 1, 1933, the order of the circuit court should be affirmed. Connery arrived in Madison from Illinois in October, 1931. He was a transient. After his arrival in Madison, he obtained some employment as an extra cook at various restaurants in the city and, after a lapse of a few weeks, married Lucille O'Donnell on February 24, 1932, who at the time of her marriage was the mother of two illegitimate children, which Connery adopted in 1935. At the time of their marriage, between them, they had two or three dollars. After the marriage and up until 1932, both Mr. and Mrs. Connery were employed to some extent. On May 1, 1933, Mrs. Connery left her employment due to illness, Connery continued to work as an extra cook whenever he could procure employment. His average earnings were $9 to $10 a week. Some weeks he testified that he worked but a single day but thought on the average he was employed two or three days a week at $3 a day.
Connery applied for assistance on July 25, 1933. Assistance was granted the Connery family in July, August, and September as follows: *622
Date Paid Date of Type of Aid Amount
Grant
1933
July 28 Utility (June 8 to July 10) $1.10
Aug. 3 6-25 to 7-25 Rent (back) ............... 15.00
Aug. 28 7-25 Groceries ................. 4.30
Aug. 17 7-26 Kerosene .................. .45
Sep. 30 7-10 to 8-8 Utility ................... 1.02
Clothing .................. .80
Sep. 2 7-25 to 8-25 Rent (back) ............... 15.00
Total .................$37.68
After September 2, 1933, the following items were paid for which were authorized during August:
Groceries from August 1 to August 22 ........................ $15.76 Fuel authorized August 2 ..................................... .45 Medical expense granted August 1 ............................. 3.00
We cannot set out all of the detailed facts as to which there is conflicting evidence relating to the amounts received by the Connery family. It is undisputed that the amounts stated above were received. The principal claims made on behalf of the defendant are, (1) that Connery by reason of his employment and the use of his credit based thereon could have provided for his family; (2) that a person must make a fair effort to meet his expenses, and in the absence of such effort he does not acquire the status of a pauper by receiving public assistance. These contentions raise questions of law. We shall consider them in their order.
Sec. 49.03 (1), Stats., provides: "When any person not having a legal settlement therein shall be taken sick, lame, or otherwise disabled in any town, city or village, or from any other cause shall be in need of relief as a poor person and shall not have money or property to pay his board, maintenance, attendance and medical aid and shall make a sworn statement as to his legal settlement, the town board, village board or common council shall provide such assistance to such persons as it may deem just and necessary, and if he shall die, it shall give him a decent burial. It shall make such allowance for such board, maintenance, nursing, medical aid and burial expenses as it shall deem just, and order the same to be paid out of *623 the town, city, or village treasury." (Stats. 1943 and prior.)
Sec.
The statutes in force at the time involved in this case did not define the term "pauper" nor was the term "poor person" defined. It is to be noted that sec. 49.03, Stats., under which the local municipality is required to give such assistance as it may deem just and necessary, uses the words "poor persons" while in sec.
"the present available money or income or property or credit, or other means by which the same can be presently obtained, sufficient to provide the necessary commodities and services *624
specified in subsection (1) [which defines relief]." (Sec.
We do not mean to intimate that the revision of 1945 governs this case. But in the chapter as amended the same term "dependent person" is used in the section requiring relief to be furnished (sec.
The statute of 1939 relating to appeals was as follows:
Sec. 49.03 (8a) (d): "Such appeal shall be heard upon the record made before the commission. The findings of fact made by the commission, acting within its powers, shall, in the absence of fraud, be conclusive. . . . Such findings and order shall be set aside only upon the following grounds: (1) that the commission acted without or in excess of its powers, (2) that the findings were procured by fraud, (3) that the findings of fact by the commission do not support the order."
The department, which is the successor of the industrial commission, found:
"(2) That Maurice Connery came to the state of Wisconsin and took up residence in the city of Madison, Dane county, in October, 1931, and has thereafter continuously resided therein.
"(3) That Maurice Connery has never lived for one full year in the city of Madison, without being supported as a pauper."
The commission found that Maurice Connery married Lucille O'Donnell on February 24, 1932; that she was at the time of her marriage a minor, she being born March 24, 1911; that Joseph O'Donnell, the father of Mrs. Lucille Connery, resided continuously in the town of Rice Lake, Barron county, from March 5, 1930, to June 18, 1932, without receiving any form of aid; that the relief claimed here as $82.24 is for aid given Mrs. Lucille Connery and her six minor children from July 1 to July 28, 1940, and was arrived at by deducting one *625 eighth of the aid given in said month of July, 1940; that the Connery family stood in need of support as poor and indigent persons at all times material to these proceedings.
Under the decision in Holland v. Cedar Grove, supra, there being no fraud, the question of need was determined by the relief authorities of the city of Madison, and the finding is not open to question on appeal under the provisions of sec. 49.03 (8a) (d), Stats. 1939.
It is argued that Connery was not "supported as a pauper" within the meaning of the statute, sec.
There can be no dispute that Connery was under a duty to support his wife, his child born January 31, 1933. They constituted his family. As we shall see, it is well established under poor-relief statutes that support furnished to a member of a family is deemed to be furnished to the person who is under a duty to support the family. This court held that where relief was furnished to an emancipated minor son, that neither the son nor the father gained a settlement in the county where the son resided and to which the father had removed. LaCrosse County v. Vernon County (1940),
The fact that Connery had not acquired a settlement in the state of Wisconsin did not relieve him from the obligation to support his family, and under the authorities when relief was furnished to members of his family, so far as acquiring a settlement was concerned, the relief was furnished to him and, having received relief as a pauper, the fact that he may have some scant resources of which he did not avail himself, does not alter the situation.
In Scott v. Clayton (1881),
The question whether a person at the time support was furnished to him is a pauper within the meaning of the statute is a question of fact. Holland v. Belgium (1886),
In Saukville v. Grafton (1887),
The meaning of the words "pauper" and "poor" are quite extensively discussed in a will case, Estate of Hoffen (1888),
A town in which a married man lived who had considerable property of value over and above incumbrances was not liable for support of the man and his wife as poor persons. Rhine v.Sheboygan (1892),
A person who received aid out of the soldiers' relief fund provided by the state is precluded from gaining a settlement in another county where he received the aid on the ground that he was supported therein as a pauper. Juneau County v. WoodCounty (1901),
The determining factor whether a person was supported as a pauper is whether or not he received the support as a pauper.Sheboygan County v. Sheboygan Falls (1908),
In this state a distinction has been drawn between the degree of poverty and indigence which will entitle one to support from the town of his residence and that which will entitle him to temporary relief in an emergency. Coffeen v. Preble
(1910),
While relief was furnished by Outagamie county to a mother who was being supported as a pauper, when her minor son was living with her and sharing in the relief received by her and he continued to live with her after attaining his majority and being married and to share the relief furnished her, he not being self-supporting, he was supported as a pauper within the meaning of the statute. Outagamie County v.Iola (1942),
In Two Rivers v. Wabeno (1936),
One who receives support from relatives and friends, who come to his assistance because of affection or family pride, does not thereby become a pauper. Ellington v. Industrial Comm.
(1937)
Upon the general topic of under what circumstances a poor person is entitled to receive relief, see Peabody v. Holland
(1935),
From these authorities we conclude that support was furnished to Connery and received by him as a pauper or poor person, and as a consequence he gained no settlement in Dane county. There is a good deal of confusion in the cases in regard to the meaning of these words because they are used in different senses. See Estate of Hoffen, supra, at p. 527. *628
It is considered the department correctly held that Connery was at all times during 1932 and 1933 a pauper; that he received assistance as a pauper (or dependent poor person) and that he never acquired a residence in Dane county.*
We have reviewed the authorities because this case was presented on the basis that, because relief was not furnished to Connery personally but to his family in part, he was not supported as a pauper in Dane county. As we have seen, that contention cannot be sustained. As is said in the cases, the question whether one is a pauper or poor person is one which must be determined upon the facts of each case. A person with some property or resources under certain circumstances may be a pauper, but under certain other circumstances he may not be. It is a matter not to be determined by any rigid rule of thumb or by concepts as to what a pauper is which had their origin in the poor laws of the time of Queen Elizabeth.
By the Court. — Judgment affirmed.
FOWLER and RECTOR, JJ., dissent.
The following memorandum was filed May 13, 1947:
Addendum
In the opinion in this case the following paragraph appears: (p. 628.)
"It is considered the department correctly held that Connery was at all times during 1932 and 1933 a pauper; that he received assistance as a pauper (or dependent poor person) and that he never acquired a residence in Dane county."
On motion for rehearing, our attention is called to the fact that this is not a correct statement. That is true and the paragraph is stricken from the opinion and the following is substituted therefor:
"It is considered the department correctly held that Connery received assistance as a pauper (or dependent poor person) and that he never acquired a residence in Dane county during 1932 and 1933."
By the Court. — Motion for rehearing denied with $25 costs. *629