138 Mass. 256 | Mass. | 1885
This is an action to recover for aid furnished to one Pomeroy, his wife, and two minor children, whom the plaintiff alleges to have been paupers having a settlement in the defendant town. The case was tried without a jury, and the court found for the plaintiff, subject to the defendant’s exception to the refusal to make certain rulings as requested.
1. The court refused to rule that, for any relief furnished by the plaintiff to Pomeroy and family prior to January 22, 1879, it is not entitled to recover, but did so rule as to Pomeroy personally. The defendant’s argument goes on the ground that Pomeroy, being entitled to his support under the St. of 1878, e. 282, was not a pauper until that act was repealed, at the date mentioned, by the St. of 1879, c. 1. We cannot agree to this position, and still less to the conclusion drawn from it. The St. of 1878 provides relief for soldiers “ who are poor and indigent and stand in need of relief,” using substantially the same language that is used by the settlement laws to describe paupers.
But even if, honoris causa, they were relieved of the title of paupers, we do not see why their right to have their personal necessities provided for should disentitle their families to relief. To maintain the ruling asked for, it would be necessary to argue that the relief provided by the St. of 1878, c. 282, was a compulsory substitute for that given by the poor laws, apart from any election on the soldier’s part, not only as to the soldier himself, as to whom it seems to have been st) ruled, but as to his family; in other words, that an act which, in terms at least, only provided what was necessary for the soldier in person was intended to make nugatory during his life the act creating military settlements, which was passed in the same year, and which is still in force. St. 1878, c. 190, § 1, cl. 10. Pub. Sts. c. 83, § 1, cl. 11.
2. The notices sent to the defendant both stated that “ Amos B. Pomeroy and family (wife and two children), whose legal settleihent is in your town, but now residing in this town, being in needy circumstances," had applied for relief, &c. Pomeroy had four children, but only two were living with him. Where the other two were does not appear. The defendant asked a ruling that the notices were bad, at least as to the children. It has been said, in a case where it was held that the defect was waived, that “ D. R. and his family ” was not sufficient. Shutesbury v. Oxford, 16 Mass. 102. And it has been held that “ E. S. and her three children ” was bad, when there were four in fact. Walpole v. Hophinton, 4 Pick. 358. On the other hand, it has been held that a notice like the last was good, where it was not shown or suggested that there were more than three. Lynn v. Newbury port, 5 Allen, 545. Perhaps it would be enough to say that, in this case, it is not shown or suggested that there were more than two children “ residing in this town." But we pre- » fer to put our decision on the firmer ground, that, taking the words “ Pomeroy and family " before the words 61 now residing,"
3. Pomeroy did what was necessary, in-1861, to gain a settlement, by military service, in the plaintiff town, and, in 1863, he reenlisted and did what was necessary to gain a like settlement in the defendant town, under the St. of 1878, c. 190, § 1, cl. 10. The defendant contended that, as the act creating such settlements was not passed until long after the war was over and both services had been rendered, the act created both settlements at the same moment, and neither prevails over the other, or at least the latter does not prevail over the former, in an action between the two towns. A ruling was asked to that effect. But the act is to be construed as far as possible as if it had been in force at the time the respective services were rendered; or, in other words, “ the settlement conferred upon him is not a settlement acquired at the time of the passage of the statute, but, by virtue of the retroactive force of the statute, is to be treated in all respects as a settlement acquired by him at the expiration of his service for a term not less than a year.” Boston v. Warwick, 132 Mass. 519, 520. Hence it could be replaced by a new military settlement under the same act, as well as by a new settlement under the ordinary law gained after the service but before the act went into effect, as was the case in Boston v. Warwick.
4. The last ruling requested was “ that Pomeroy, being a resident of Granville at the time of his second enlistment, and, the quota of Granville not then being filled, was by virtue of the St. of 1863, c. 254, § 8,
Judgment on the finding.
This section is as follows: “ Residents of any town or ward of any city in this Commonwealth, enlisting in any other town or ward, shall nevertheless be counted in the quota of the town or ward of which the person enlisting is a resident, until the quota of that town or ward is filled.”
