48 Pa. 402 | Pa. | 1865
The opinion of the court was delivered, by
— This was an action of assumpsit, by the overseers of Nippenose, to recover against the overseers of Jersey Shore a sum of money expended by the plaintiffs in keeping Hester Clark, a coloured pauper, and for medical attendance, funeral expenses, &c. As the suit was founded on no express promise, it is necessary to consider whether the law would imply a promise from the circumstances of the case.
Hester was an illegitimate girl, born at Lewistown, Mifflin county, Pennsylvania. At about six years of age she was
The argument in support of the writ of error is, that no appeal was given by law from the order of relief, but that there was a legal duty upon Jersey Shore to provide for the pauper because accident befell her there, and that the law would imply a promise on the part of Jersey Shore to pay another for performing this her own proper duty.
In the first place it appears to fis very clear that Hester’s only legal settlement was.in Lewistown, where she was born. The 11th section of the Act of June 13th 1836, Purd. 797, declares that every illegitimate child shall be deemed to be settled in the place where the mother was legally settled at the time of the birth of such child. Though the child may acquire a settlement of her own subsequently, and perhaps may derive from her mother a subsequent settlement acquired by her, yet it is unquestionable that neither mother nor child in this instance ever acquired a settlement either in Nippenose or Jersey Shore. The district, therefore, which was liable for the pauper’s support, under the 23d section of the Act of 1836, and to which she might have been removed, was Lewistown.
In the next place, it was plainly the duty of the overseers- of Nippenose, after the order of relief was issued, to furnish the relief required. The 5th section of the act is express to this I oint. Under that section it was immaterial that Hester’s set
Thirdly. Jersey Shore was under no legal liability to provide for the pauper, because, 1st, though she got her hurt there, she could be removed and was removed from that district, and therefore the case, as to Jersey Shore, did not fall within the 23d section of the act; 2d, because no application for relief was made to the overseers of Jersey Shore by or on behalf of the pauper, as required by the 5th section; 3d, because no order of relief has ever been issued to the overseers of Jersey Shore; and, finally, because no order of removal to Jersey Shore-could be made, the pauper having no settlement there.
Now, in view of these conclusions, which result out of the admitted facts, when taken in connection with the various provisions of the Acts of Assembly, it may be asked, What would the overseers of Nippenose have gained by appealing from the order of relief, if, indeed, an appeal from such an order be within the 44th section of the act ? What could the court have done on such an appeal ? The order was regular, though issued by magistrates of Jersey Shore. It was issued to the overseers of the district within which the pauper then was; it enjoined the relief demanded by humanity, and prescribed by law, and the ultimate liability for her support rested on Lewistown, and not on Jersey Shore. We cannot feel the force of the reason which the court gave for not sustaining the action. Their conclusion was better than the reason they gave for it. But it is equally apparent that the argument of counsel, against the conclusion which the court reached, is not well founded. We have shown there was no legal liability on Jersey Shore, no more than there would be on the part of a district in which a railroad passenger might be hurt who
In both of these cases the words of the 23d section, “so that he cannot he removed,” must have been considered as applying to the legal removal provided for by the 25th section, because, in point of fact, there was a removal of the pauper in each instance from the township in which he was hurt; but because their settlements were without the state, it was assumed that they could not be removed to them, and that provision of the 25th section which requires the removal to be to the place of the last legal settlement, “whether in or out of Pennsylvania,” was not noticed.
We will not quarrel with these cases. They may be good law upon their peculiar facts, though it is certain they overlooked some of the material provisions of the statute. But they do not rule this case, because here, the pauper had a settlement within the state to which she might easily have been removed, unless indeed the severity of her hurt was such as to forbid her removal, and if it was, Nippenose had remedy against Lewistown for costs and charges: Overseers of South Huntingdon v. Overseers of East Huntingdon, 7 Watts 528.
As to the construction of the words of the statute, “ so that he cannot be removed,” it may be that their primary reference was to the provision for a legal removal by order of two magistrates, but we do not think they should be limited to this meaning. If a pauper be carried from the township or district in which he is hurt, before any application for relief is made, and that removal be voluntary on his part, and be made in good faith
It thus appears very clear to us that Nippenose was bound to administer the necessary relief in this instance, and to seek compensation therefor from Lewistown, and not from Jersey Shore. The implied assumpsit is grounded entirely upon the legal duty. I have endeavoured to show that the legal duty pertained not to Jersey Shore but to Lewistown. It may be said that Jersey Shore ought to respond to Nippenose, and herself seek satisfaction of Lewistown. Even if there was a duty on Jersey Shore, it might be asked why such circuity of action ? But if there was no duty to ground an action against Jersey Shore upon, then, very plainly, the action should have Leen in the first instance against Lewistown.
These common-law actions in pauper cases ought not to be favoured. I know they have been brought and sustained in a few instances — but the theory of the Poor Law is, that the Quarter Sessions are to administer it. It was intended to be a system, which, with the aid of that court, should execute itself, and work out its own results without calling in the common law. The legislature having committed the care of paupers to the Quarter Sessions, and clothed that court with summary powers, which are equal to all exigencies, common-law remedies would seem to be displaced by the necessary construction of the Act of 1806. Not, however, to insist upon this as a decisive objection to the present action, it is nevertheless a reason which adds itself with considerable weight to the other reasons I have suggested for affirming the judgment.
In doing this we do not mean to approve of the court’s mode Of trying the cause. Not only was the ground of the ruling ill-chosen, but it was quite irregular to take a verdict for the plaintiff, upon the facts of the case, and then to enter judgment non