Town of Hay River v. Town of Sherman

| Wis. | Mar 18, 1884

Cassoday, J.

The pauper having acquired a legal settlement in the original town, there can be no doubt but'what it became the dutjr of that town to support and maintain him down to the time of the division, and, in case of failure, that town was liable therefor. Such duty and liability, however, were upon the whole town, and not exclusively upon any fraction of it." Such legal settlement was in the original town as a whole, and not only in a fractional portion of it. The pauper had, therefore, in view of the statutes, a legal settlement in that portion of the original town which became the plaintiff town, as truly as in that portion which became.the.defendant town. Such legal settlement extended to the extreme’boundary of ever}1, portion of the original town. Such legal settlement in every part of the original town having been acquired as early as March 1, 1875, continued down to the very time oí the division. Subd. 7, sec. 1500, R. S. What effect did such division have upon such legal settlement and subsequent liability?

The statute provides, in effect, that “ whenever any territory shall be organized into . . . any town, . . . every person having a legal settlement in such territory, and who actually dwells or has his home . . . therein, shall thereafter have a legal settlement in such new town. . . . The organization into . . . any town ... of any territory, shall not prevent any person from acquiring a legal settlement therein, within the time and by the means by which he would have gained it there if no such new town . . . had been organized.” Subd. 8, sec. 1500, R. S.

The pauper in question, at the time of the division had a legal settlement in that portion of the territory of the original town which now constitutes the plaintiff town, and actually dwelt therein; and hence, by force of the first clause of the statute quoted, he thereafter had a legal settlement in such new town. This view is enforced by the second clause of that statute j for had Mr. Noble, without being a pauper, moved from some other town into the south half of the old town, May 1,1879, so as to become a resident therein, and continued to reside there until April 1, 1880, and on that day moved into and become a resident in the north half of the old town, and so continued such residence until May 1, 1880, and then become a pauper, he would, under the provisions of the statute quoted and subd. 4 of the same section, have acquired a legal settlement in the plaintiff town, notwithstanding his actual residence in that portion of the old town had only commenced five days before the division, and had continued in the new town for less than a month.

The words “actually dwells,” in the statute, are certainly broad enough to include one who is boarded or supported at a particular house; — certainly this is so when applied to a pauper having a legal settlement in a town. "When so used, they would seem to mean nothing more than the place where he actually remains, tarries, abides for some length of time, continues, staj?s, sojourns. The place where he actually lodges and takes his meals must come within the meaning of the words -“actually dwells.” The statute is not, who actually dwells and has his home therein, but “ who actually dwells or has his home . . . therein.” It contemplates that a person may have what may be called “ his home,” and yet be a subject of public charge; but, ordinarily, he is not so fortunate. Hence, to cover all cases, the disjunctive is used with the sweeping words, “actually dwells . . . therein.” The substance of the statute was taken from Massachusetts, though changed in phraseology and arrangement. There, instead of using the disjunctive, the words are, “ who actually dwells and has his home within,” etc. This change is significant. ¥e find no decision in that state directly in point, nor any in conflict with the view suggested. We must, therefore, hold that -where a pauper has a legal settlement in a town, and such town is divided into two parts, from each of which a new town is organized, the new town in which such pauper happens to actually dwell at the time of such division will thereafter be liable for his maintenance and support while he remains such pauper.

This view renders it unnecessary to consider the question of the statute of limitations, so ably discussed by counsel, or the question of reviewing the order on the demurrer, also discussed.

By the Gourt.— The judgment of the circuit court is affirmed.