State ex rel. Wood County v. Dodge County

56 Wis. 79 | Wis. | 1882

Cole, O. J.

This is a common law certiorari, directed to the state board of supervision of charitable and penal institutions, requiring such board to certify and return to this court its proceedings, decisions, and orders in the matter of the application of Dodge county for relief from the charge of supporting one George Carr, an insane person. Carr had been committed to the northern hospital for the insane, and his support for some years had been charged to the county of Dodge. On the hearing of this application the board — acting under the provisions of ch. 229, Laws of 1881 ■ — ■ found that Carr was a resident of Wood county when he was sent to the insane hospital, and that the expense of his maintenance had been erroneously charged to Dodge county. Thereupon the board made an order that from and after the 30th day of September, 1881, the expense of supporting Carr in the hospital be charged to the county of Wood; that Dodge county be credited under the law with the sums it had theretofore paid out for his support, amounting to $581.46; and that Wood county be charged therewith. It is the correctness of this order made by the board that we are called upon to consider.

The argument contesting the correctness of the order took a wide range. The eminent counsel who appeared for the county of Wood assailed the law of 1881 as being unconstitutional. He claimed that it was a plain attempt to confer on the board of supervision judicial power which the constitution vests exclusively in courts. The questions, he says, whether Carr was a resident of Wood county when he was taken insane, and whether that county was legally chargeable with his past and future support, were purely judicial questions, which could only be investigated and finally determined by the courts organized under the constitution, in some appropriate proceeding.

In this case we do not find it necessary to enter upon a discussion of the grave objections which counsel has taken to ch. 229. It may well be, as he insists, incompetent for the legislature to clothe the board with power to finally determine,— without examination or review by the courts,— the question whether Wood county is liable for the past or future support of Carr; nor is it clear that it is the intent of the law to confer that authority upon the board. But it doeis not seem to be the exercise of a doubtful legislative power to confer upon the board authority to correct mistakes when satisfied that an insane person was charged to the wrong county, and to make an order,— such as is contemplated by the law,— stating therein the county to which such inmate was chargeable, which order should be deemed prima facie proof of the liability of the county.

Assuming, then, as we may, that the law is valid, at least to that extent, and without attempting to precisely define the powers vested in the board by its provisions, we proceed to consider a further question in the case. The board has incorporated in its return to the writ the evidence upon which its order was made. On this common law cerbiorari, which brings up for review the proceedings of an officer or board which acts in a summary manner out of the course of; the common law in the exercise of quasi judicial powers, this court will look into the proceedings, not only for the purpose of ascertaining whether such officer or board acted according to law and within its jurisdiction, but will also correct errors and irregularities in the proceedings. Milwaukee Iron Co. v. Schubel, 29 Wis., 444; State v. Whitford, 54 Wis., 150. It will also examine and review an order based upon facts, where there is no contention as to what the real proof in the case was. State v. Whitford, supra.

' Observing this rule on looking into the evidence upon which the board charged Wood county with the support of Carr, and we think it totally fails to sustain that part of the order. To our minds the proof is entirely clear, conclusive, and uneontradicted that Carr was not a resident of that county, within the meaning of the statute, when he was taken insane. The testimony in regard to Carr’s residence prior to and at this time is found in the affidavits of his wife, who gives a very clear statement as to his residence after she married him in 1863. She says they first resided in the village of Horicon, Dodge county, where they lived until the spring of 1812. Then they removed to the county of Pepin, where they lived until November, 1812, spending the following winter in visiting friends in various places in this state and in Illinois. They returned to Pepin county in April, 1813, and kept house in that county until about the 19th of September, when they again left the county, and spent the following winter in visiting relatives and friends in different places in this state. In the month of March, 1814, they went to Appleton, and staid about two weeks. In April, they went to Wood county, and boarded for a time at the village of Grand Eapids. About the last of June they removed to a place about nine miles north of the village, where Carr wmrked in a stave mill, and they went to keeping house there, because they could obtain no boarding place. ■ She says the object of Carr’s going to Wood county was to make a sale of some stave machinery which he owned, and that he sold such machinery to Clark & Scott; that it was a condition of the sale that he should set up the machinery and assist in sawing out some stave bolts which the firm had ou hand. She says when they went to Wood couhty it was not with the purpose or intention of making their residence in that county, but was solely for the purpose of disposing of the machinery. Also, that when they left #ie county, about the 27th of August, when Carr’s mind became affected, it was' with the intention of not returning thereto.

These are the real essential facts in regard to the residence of Carr in Wood county, and they show, beyond all doubt, that he was in Wood county, when taken sick, merely for a temporary purpose — in order to make sale of some machinery which he owned. On the sale of that machinery he agreed to set it up and work for a short time. He had no intention of remaining in the county after he had accomplished his end in going there. Our statute provides that the support of an insane person shall be charged to the proper county, when his proper residence shall have been ascertained. Sec. 590, R. S. The “proper residence ” here spoken of means something more than stopping in the county for a mere temporary purpose, as on business, or for pleasure. It imports something more than this. We would not say that a person’s “ proper residence ” was where he was making a visit, or where he was temporarily staying to transact some business, or for some transient purpose, without any intention of remaining in that place after he had accomplished his object in going there. Such a temporary stay in a place would not make one a “ resident ” within either the letter or spirit of the statute. But where a person takes up his abode in a county with the present intention of remaining there, where he expects to reside, where he would exercise his political right to vote, .if an elector, where his personal property would be taxable in that county he might justly be said to have a “ proper residence.” These words are used in the statutes in very much the same sense as the words “ aequired domicile ’’ in some authorities; that is, the place where a person has voluntarily fixed his abode, not for a mere special or temporary purpose, but with the present intention of making it his home. See Hall v. Hall, 25 Wis., 600; Dutcher v. Dutcher, 39 Wis., 651. Now it is very obvious that Carr had no such residence in Wood county when he was taken insane. He was in that county only for a temporary purpose, intending to go away when he had accomplished- the object which called him there. Therefore he was not legally a resident of the county, and his support should not have been charged upon that county.

It follows from these views that so much of the order of the board of supervision as charges Wood county .with the expense of supporting Carr in the hospital from and after September 30,1881, must be reversed. We also reverse that part of the order which directs a certificate to issue under chapter 229, Laws of 1881, to the secretary of state, requiring that officer to charge Wood county with the sum of S587.46 as an item of its state tax for the next year.

By the Gowrt.— Ordered accordingly.