3 Vt. 122 | Vt. | 1830
The opinion of the Court was delivered by
The issue which was tried in this case in the county court was, whether Johnson, the pauper, removed from Londonderry to Acton, was likely to become chargeable to the former town at the time of removal. On the trial, exceptions were taken to the decision of the court in rejecting certain testimony offered by the town of Acton, and also to the charge of the court. A verdict was given for Londonderry, and on these exceptions the cause was passed to this Court.
On the trial of an appeal from an order of removal made by two justices,the same inquiry may be had,as was,or ought to have been, had before the justices. It will be proper, therefore, to inquire what must be found by the justices previous to making the order. The statute says that “ if the overseers of the poor of any town or place shall find, suspect, or have reason to believe, that any stranger who shall have come to reside in such town or place, and has not gained a legal settlement therein,” they may make complaint, &.c. The justices must find the fact that the person alleged to be a pauper has come to reside in such town — that he has not gained a legal settlement therein — that he has already become,or is likely to become, chargeable to the town whose overseers of the poor make the complaint. And then, having ascertained the place of his legal settlement, they order him to remove there by a time by them prefixed, and, on his neglect, issue a warrant for his removal. This, being a power given by statute, cannot, and ought not, to be exercised in any cases except in those especially authorized or directed. Every person who can support himself without being a public charge should be permitted to take up his abode where his inclination may direct, and seek his living in those places where he can find the best prospects of success in his business or calling, and to consult his fancy or his interest in selecting the place of his residence without being liable to be directed in his choice, except in obedience to the laws of the government. The policy of the law, however, has directed that if from misfortune or fault he becomes unable to maintain himself or family, he may be restricted in his choice,and must remain in that place which the law points out as the place of his settlement. It may be remarked
The pleadings in the case under consideration put in issue the fact whether Johnson, at the time the order was made for his removal, was likely to become chargeable to the town of London-derry. It will readily suggest itself to the mind of every one that this inquiry is important in its nature, and is the lact on the existence of which all the proceedings of the justices are to depend. For unless the person to be removed is actually chargeable to the town, or there is a rational prospect of his becoming so, there can be no reason why he should be disturbed in the choice of his residence. And if the proceedings are not made to depend on this, any one may be compelled to leave his domicil and depart for the place where chance or accident may have fixed his settlement, at the caprice of those who may wish to drive him from a town in which he chooses to remain.
In the different statutes upon this subject to which the Court have been referred, it will be observed there is a great similarity in the phraseology made use of. The English statute of 13 and 14 Car. II. c. 12, is in the following words ; “ two justices of the division where any such person, that is likely to become chargeable “ to the parish, shall come to inhabit, may by their warrant re- “ move,” &c. The statute of Massachusetts is, “ all persons ac- “ tually chargeable, or who through age or infirmity, idleness or “ dissoluteness,are likely to become chargeable,” may be removed. The statute of this state is, “ any stranger that has already, or is “ likely to become chargeable,” &c.
It will be noticed that in our statute, the term stranger is made use of, which it has been remarked cannot be applied to persons having a fixed residence. The English statute, however, was made for persons who had no fixed residence ; the preamble to which recites, “ that poor people are not restrained from going “ from one parish to another, and, therefore, do endeavour to set- " tie themselves where there is the best stock, the largest com- “ mons or wastes, to build cottages, and tire most woods to burn
Our first inquiry is whether the evidence which was offered and rejected tended to prove the issue joined in this case ? It has been urged that the evidence offered to prove that the constable of Londonderry endeavoured to procure Johnson to sign a writing requesting the town to afford him assistance, ought to have been admitted : for if it was made with sinister views it should operate strongly against the town of Londonderry. We think, however, that this is a very strong reason why it should be rejected. If the constable acted with improper views in presenting this writing, it ought not to cast any prejudice on the town who are here prosecuting this suit, or have any effect on the question which was then before the jury. And further, it was wholly irrelevant to the subject in dispute. Equally irrelevant was the conduct of the constable in making a larger seizure than he should have done for satisfying the taxes due from Johnson, to wit, in taking an ox for a tax of four dollars, when he might have taken property of less value. It is urged that this last testimony was admissible to show the property of Johnson ; and it would have proved either that he owned the ox, or had a right of action therefor. It does not appear that it was offered with this view, and if it was,the party offering it had all the benefit which he could have derived from the fact, inasmuch as it appears that the tax was paid, -and, of course, any property which the constable may have levied on for the purpose of collecting that tax musthave been released from the levy. We are of opinion diat this testimony was properly rejected as wholly irrelevant and not tending to prove the issue then on trial.
The next question which was argued to the Court arises under the charge to the jury, “that, if upon a full consideration of all the cirPumstances of the family and property of Johnson, they believed h^ could meet and go through such a fit of sickness of himself or either of his family asmight reasonably be expected in such a family, without aid from the town or charity of individuals, he was not likely to become chargeable,” &c. But if he could not meet such sickness without such charity or aid, he was likely to be?
It was urged on the argument of this case with great force, that this likelihood to become chargeable must be an immediate likelihood or prospect of becoming soon chargeable,in order to justify the justices or jury in saying a man should be liable to remove under this statute. The court in making this charge was undoubtedly governed by the opinion expressed in the case of Bradford vs. Corinth. That however differs from the charge here given,and contemplates a case of such entire destitution and poverty as might be evidence, especially if it was connected with other circumstances, of a person being likely to become chargeable. But the case to which the charge under consideration applies is that of a man in possession of property to some considerable amount, and nearly or quite free from debt. In the case between the parishes of Teelby and Willerton, 1 Str. 77, and 3 Burns, 444, the justices adjudged that a person may become chargeable, and this order was quashed and
The rule which was given .to the jury as a criterion by which to determine what persons may be removed as liable to become chargeable, would be applicable to a great number of persons whom it would not be considered as reasonable or proper to subject to any coercive measures to oblige them to remove to the place of their settlement. A great share of the single men who hire out by the month or the year, and who are industrious and enterprising, and most of those who are commencing business with but little property, but who are prudent, economical, and attentive to business, might not be able to meet the ordinary expense of a severe fit of sickness, and might exhaust all their means before their health would be so far restored as to enable them to resume their labour. And under the rule given it is not sure but that all such persons would be subject to be removed whenever the overseers of the poor should think proper* Upon a full consideration of the case we are of opinion that a person is notliable to be removed unless, at the time of making the order, there was a prospect or a strong probability arising from circumstances then existing that he or his family would soon become chargeable to the town; and that the charge of the court in this particular was erroneous.
There is another question arising in this case, which,as the cause is to be removed to the county court for trial, it is necessary we should decide. The court was requested to charge the jury that, while the said Johnson was owner of his real estate, he could not be removed to Acton, and, therefore, was not likely to become chargeable to Londonderry. The court did not so charge them, but charged them as before mentioned. This involves the question whéther a person owning and residing on his real estate can be the subject of removal. If this can be doné, it has been well said that nothing would have a greater tendency to reduce men to pauperism than to remove them from their homes and property, and thus compel them to dispose of that property at any price they could get, and that it would in fact operate as a confiscation of their property. Indeed, it would contravene the first
If recourse is had to authorities to settle this question,it will be found that it has received repeated determinations both in England and this country. The principle that a man cannot be removed from his freehold seems, in all the causes where it is mentioned, to be recognized as the settled law, and all the statutes which have been passed on the subject of the removal of paupers, have been made to yield to this well known and established principle. Indeed, to reside on the freehold was considered as a right derived under Magna Charla, and one of which the person could not be deprived unless for crime.
By the statute of 13 and 14 Car. 11. c. 12, the justices were authorized to remove any person who came to reside on a tenement under the yearly value of £10. In some of the earliest decisions under this statute there was some doubt whether this £10 should be understood £10 per annum of an estate of freehold, or £10 rent as a tenant. In a case in Skinner, the King vs. Inhabitants of Stanmore, 268, this question was made,'and it was urged that it was unreasonable to intend that the act should remove a person from his freehold though under£10per annum,and it was said that it had been so ruled by North, Ch. J. at the assizes in Buckingham, and Holloway said he had known it to be so adjudged ; but Herbert, the Chief Justice, was of another opinion, and the reporter says the other judges were silent. This is the only case where any doubt was expressed on the subject. In the case of Stanlock, vs. Bampton, Freem. Rep. 432 decided in 1676, it was held that a ,man.might go to his own house, though the value be ever so small, and an order to remove a man from his own house to the last place of his settlement was quashed. The proposition, that a man may reside on his own freehold,and cannot be removed, it wfll be found, has been recognized in all the cases to the present
I have examined the authorities upon this subject more than would seem to be necessary to establish the principle; but the question was never before presented for the consideration of the-Court, and it is said that many gentlemen eminent in the profession have expressed a different opinion. On examination it is found that this principle is not derived from any expressions in the English statutes or the statutes of Massachusetts, as has been argued, but it is considered as a well established principle of the common law giving a liberty or privilege to the freemen to which the operation of those statutes is compelled to bend.
It is objected to this that it would be the occasion of fraud, and that paupers would have estates given to them to enable them to reside in a particular town. To this it may be answered that it is a-well known maxim that fraud will vitiate every transaction, and a fraudulent act is as no act. And in many of the settlement cases it is considered that a residence or possession obtained or continued with a fraudulent intent will give no settlement — that a right cannot grow out of a wrong. 10 Mod. 393;—2 Term, 709;—2 Barn. & Ald. 527. And further, that no person can be chargeable while he has the means of supporting himself. When he has property either real or personal, he must first expend that in his own support before he can make any legal or effectual call upon the overseers of the poor for relief.
It results from this view of the case that the town of Acton was entitled to have the jury instructed, that Johnson, while living on his estate in Londonderry, was not liable to be removed to Acton, and more especially, as that estate was of the value of between two and three hundred dollars, and he but little in debt, in good
The judgement of the county court is reversed and a new trial is granted.