Overseers of the Poor v. Overseers of the Poor

1 Vt. 464 | Vt. | 1829

HutchinsoN, J.

delivered the opinion of the court. The question presented in this case is of considerable importance, and attended with some difficulty. The question is, whether the expression, last legal settlement, in our statute, when it relates to orders of removal, means a legal settlement any where, or only within this state ?

The decisions in Massachusetts and Connecticut are contradictory upon this point. Whether this has resulted from their different views of policy, or from the different provisions of their several statutes, does not appear. The decisions in Massachusetts, seem to regard the impossibility of giving effect to any provision or construction of their statute, that should include a settlement in another state : those in Connecticut, seem to regard the policy of excluding from a settlement, in that state, those who may have gained one elsewhere. The question of policy has now been urged, with ingenuity, by the defendant’s counsel, as leading to a construction of our statute favorable to the defendants. The ar-gnment is, that, upon the construction contended for by the plaintiffs, those who have once gained a settlement in any town in this state might be publicly brought back with impunity to such town, even after they have gained a legal settlement in another state.— And even those, who should derive a settlement from, these, might be publicly brought back in the same way.

This argument should have its weight if the sense of the statute were so doubtful as to receive a construction from mere principles of policy. The cases, however, affected by this principle, are probably less numerous than the argument, supposes. When there is a determination to procure a pauper to return to the place of his former residence, there is usually some way to affect it with-' out any exposure ; and without that publicity which would be restrained by law.

In searching for the true construction of our statute, in relation to this question, we observe, that the first section regulates what shall gain a settlement. The second section provides that each town and place shall relieve, support and maintain their own poor; and makes it the duty of the overseers to take effectual measures to prevent the poor, resident within their respective towns or places, from strolling into any other town or place. The third section provides for the orders and warrants of removal. This, in its various circumstances, occupies the fourth, fifth, sixth and seventh sections. The eighth provides for the compensation to the officer for removing paupers. The ninth section provides, that relations of ability, and within certain degrees, shall support their poor re-látions. The tenth section is omitted; and I conjectured at the hearing; and so did the defendants’ counsel, that this section,when in existence, provided for the removal of paupers to, or towards, their last legal settlement, if out of this state. If so, it might affect the construction of the third section-of this statute. Bat, lam now convinced that the tenth section made provision for a support, at the expense of the state, of those paupers who had gained no settlement within this state. The whole provisions about removal precede the ninth section. That provides for support by relations. The tenth was repealed November 8th, 1797, and directed by the repealing act, to be expunged from the statute, which had not then been published. And, in the margin is printed, “Residents out of state provided for.” The 11th section provides for transient persons, suddenly taken sick, &c. when out from home. Hence it is fair to conclude, the whole business of removing having closed before the ninth section, that the ninth, tenth and eleventh sections regulated the support, not the removal of paupers. Besides, I have no recollection of ever knowing, or hearing of, but one statute of this state which attempted a provision for the removal of paupers out of the state ; and I find that to be the statute of 1787. Its total inefficiency was too apparent,|in and before the year 1797, to render probable a repetition of its provisions in a new statute.

Hence we are disposed to treat the statute as made to regulate the support of the poor within this state. Indeed, there is but one-expression of the statute that would lead us to suspect that any thing else was ever intended, or eyen thought pf. That expression is in the third section, where the constable is directed to transport the pauper to his legal settlement, it is added, “if within this ; state.” This, it is argued, and plausibly too, supposes some case of transporting, if without this state. But, let the same expression be applied to the justices’ issuing the order, instead of the officer’s executing it, and there would be no suspicion of such intention, Any provision for removing out of the state would be a. nullity, ,and as such would be resisted by the other state.

The same expression is susceptible of another meaning, full of caution, .and implying no absurdity. The warrant commands the constable to remove and transport such stranger, with his family, &c. on the nearest and most convenient route, to the place of such stranger’s legal settlement, if the same shall be within this state. Now, if, without regard to nicest grammar, this last clause be referred to the expression “nearest and most convenient route,’’the whole would not be the worst constructed sentence tobe found in any statute whatever; and the sense would he, that the officer must keep within the state, though he might find a shorter route by, crossing the line.

Whether this or the’other conveys the actual sense of the legisla-,ature,all the other provisions of the statute ar.e so framed, asnecessa-jly to have their whole effect within this state. Of this character are the several provisions mentioned by the plaintiffs’ counsel — the officer’s leaving a copy with the overseers — the penalty upon a town that should refuse to repay the expenditures in sickness, after an .order of removal — penalties on towns for not receiving paupers when removed; — the , right of appeal from the order, &c. These, .and other provisions of the statute, must be inoperative and absurd, if applied to a settlement’out of the state. Every provision made com templates a settlement within tl>e state. Settlements out of the state are virtually excluded from any future consideration by the 2d section, which obviously compels each town to .support all the poor residing in such town, without any reference to their legal settlement. That is, they are to be treated and supported as legally settled in the town where they reside, till such town finds a place fo.remoye them, and-proceeds to such removal according to thg following sections.. This is virtually say-jng, that those who have a settlement out .of the state, but none within it, shall be treated as settled in the town where they reside. This .has been the practical construction of the statute for thirty years, and must inevitably continue to be its practical construction. Under all these circumstances, if would be rather a forced construction, and not very just towards the plaintiffs, should we now say, when the plaintiffs have found a place of settlement to which they can remove, and have removed, the pauper, they are to be defeated by being told of a place of settlement to which they cannot remove him. I have examined the books in our chamber for a case decided in England, which I have sometime seen, but cannot now find, which might have some bearing upon this point. My recollection of it is this : A having a settlement in Ireland, but none in England, married a wife in England, who had a legal settlement in some town there. They resided in .another town still, and became paupers,and needed support. It was decided that she did not lose her settlement in England, by marrying a man whose settlement was in Ireland; but they could not remove him to the place of her settlement, nor remove her from her husband : so they were suffered to remain where they were. This may not be the exact state of the case, but probably is nearly so.

■ There is a case reported in JYew-York,that favors the construction we have adopted.—5 Johns. R. 15, Wyncoop vs. Overseers of the Poor of the City of New-York. S W who had her legal settlement in Stamford, m Connecticut, resided several years in the city of New-Yorh, but under such circumstances as gained herno settlement. She had a bastard child born there. The special justices of the city made an order upon Wyncoop for the support of the child. The Sessions affirmed this order, and before the Supreme Court, the question arose whether the child had its settlement in the city ? The judges were all agreed that its legal settlement was there. Kent, C. J. in delivering his opinion, says, ■“The law declaring that every bastard child follows the settlement of its mother, applies only to cases where the mother has a legal settlement within the state. If she has none, the child must be ' chargeable to the town where it was born ; and it cannot' be sent out of the state. It becomes a native cit_ feen by birth, ánd is- entitled to protections as well as bound to allegiance.” This case seems directly in point, and serves to confirm our own views of the subject.

Smith, for appellees. Smalley and Adams, for appellants.

Upon what we, therefore, deem the most fair construction of the statute, and the greatest weight of authorities, we have arrived at the decision that the plea in bar is insufficient, and that the decision of the county court, affirming the order of removal, be itself affirmed.