Town of Starksboro v. Town of Hinesburgh

13 Vt. 215 | Vt. | 1841

The opinion of the court was delivered by

Bennett, J.

It seems, the pauper was born in Connecticut, where he resided until about the year 1790, when he removed into Essex, in this state, and resided in that place till 1797 or 1798, when he removed into Hinesburgh, where he resided till March, 18Q2 ; and the inquiry is, whether he gained a settlement in Hineshurgh under the act of 1797. It is contended, on the part of Starksborough, that the pauper gained a settlement in Hinesburgh, under that clause of the statute of 1797, which enacts that a settlement may be gained in cases where the person “ shall have been charged with, and paid his or her share of the public rates or taxes of such town or place, for the space of two years.” All that the case shows in this respect, is, that the pauper, during his residence in Hinesburgh, was called on by the highway surveyor, and labored on the highway. There was no evidence that he ever had a list, or that any taxes were ever made up against him. The English statute of the 3d W. & M. has a similar provision, from which ours was probably copied. The words of the English statute, are, “ or shall be charged with and pay his share towards the public taxes or levies of the said town or parish.”

In England,, it has been held, that a tax assessed for the repair of highways, is not a public tax, within the meaning pf this statute, a,nd, consequently, the payment of such a. tax will not entitle the person to a settlement under their statute. 5 T. L. D. 221. The statute of 1801, in New York, was the same, in its provisions, as ours, and, in the case of Amenia v. Stanford, 6 Johns. R. 92, it is also' held that the assessment and performance of labor on the highway, is not the payment of a tax, within the meaning of the statute. The word taxes, it is said, means a contribution in money, and not labor or personal services.

If it was necessary to decide the question, perhaps the same construction would be given to our statute. But, in the case now before us, it does not appear that the pauper had been assessed, or, in the language of the statute, charged with the payment of any tax. For ought that appears, the labor performed by the pauper might have been gratuitous. The authorities are very ample to show that there must have been an assessment of a tax against the person paying it, as well as the payment, in order to acquire a settlement under the statute. Besides, all that the case shows, is, that the pauper was calk ed upon, during his residence in the town, by the surveyor* and that he labored on the highway. The statute requires that he should pay his share of the public taxes for the space of, two.years \ and it would, probably, be held two successive years. This has not been done, and the pauper has gained no settlement under this clause of the statute.

Though the pauper resided several years in Essex, before the passage of the act of 1797, yet, it cannot be pretended that he gained a settlement in that town, by such residence, under the act of 1787. That statute makes property a necessary qualification in gaining a settlement. The pauper resided in Hinesbugh more than a year, while the act of 1797 was in force, having no settlement in the state, and for aught that appears, was an able bodied person, and of peacea-. ble behavior. The first section of this statute provides for several different modes in which a settlement may be gained, the last of which is that “ every other healthy, able bodied per-= son, coming and residing within this state, and being of peaceable behavior, shall be deemed and adjudged to be settled in the town or place in which he or she shall have first resided for the space of one full year.” It has been con~. tended that this provision is prospective, and only extends to persons coming into the state after the passage of the act. It no doubt is prospective, and was intended to provide fo^ and be extended to only, those cases where the person had no settlement in any town in this state. But, to hold that its provisions cannot apply to such persons as were in the state, at the passage of the act, who had no settlement in it, would, indeed, be illiberal. The expression, “ in which he or she shall have first resided one full year;” may mean first after the passage of the act. The paupers, being and residing in Hinesburgh one full year, while the act of 1797 was in force, was tantamount, in spirit and essence, to coming and residing. The case of Burlington v. Calais, 1 Vt. Rep. 385, is to the same effect, and must govern this case.

It has been insisted, in argument, that, though the pauper may have gained a settlement under the first section of the act of 1797, still, as that section was repealed in the fall of 1801, without any saving clause as to rights of settlements already gained, the effect of the repeal must be to terminate such settlements with the act itself. But we cannot concede to this proposition. It is well settled law, no doubt, that after the expiration or repeal of a statute, no penalty can be enforced for violations of the law, while it was in force, unless there is some express provisiop for that purpose, and of this character are the two cases to which we have been referred in 2 Peters’ Cond. United States Rep. That principle can have but little or no analogy to the question under consideration. The pauper, by gaining a settlement under the act of 1797, acquired a right, while it was in force. It is a principle of the English common law, that a statute should have a prospective and not a retrospective effect; and in the case of Beadleston v. Sprague, 6 Johns R. 101, the court say, “ a statute is not to be construed so as to work a destruction of a right previously attached.” Though one legislature may repeal the laws of another, yet the rights which have been acquired under them, while in force, do not thereby cease. It would, indeed, be the height of injustice to abolish with a law, all the effects which it had produced.

The legislature, by the repealing act, have not professed to give it a retrospective effect. It leaves the rights of all persons, under the act of 1897, just where it found them, and the repeal can no more affect those rights than if the act had expired by its own limitation. The repealing act has a reasonable object, and a full operation, prospectively; and it would be a subversion of all principle, to give it a retrospective effect, by construction, to the destroying of rights previously acquired, and then perfect. That, in the repeal of other settlement laws, there has been a saving clause, as to settlements then acquired, proves nothing. This proceeded from abundant caution, rather than from a recognition of its indispensable necessity. The case cited from IS' Mass. R. Commonwealth v. Bird, is not in point. The question there, was, whether the legislature had the power to revoke an exemption from the performance of military duty, which had existed under the former laws. That they had undertaken so to do, was regarded too clear to admit of a doubt.. The result then, is, that there is error in the decision of the county court, in directing a verdict for the defendant. The judgment of that court is reversed, and the cause remanded for a new trial.