Walbridge v. Walbridge

46 Vt. 617 | Vt. | 1874

The opinion of the court was delivered by

Peck, J.

This is a petition for a writ of certiorari to be issued for the purpose of quashing the proceedings of the county court, in which that court, on petition of James H. Walbridge against Edward Walbridge and Henry S. Walbridge, apportioned between the three, being brothers, the sum each should contribute to the support of their father, Stebbins D. Walbridge, under the statute on this subject. As the issuing of a writ of certiorari is, to a great extent, matter of discretion, the practice is to hear the merits of the case upon the petition for the writ, and practically decide the whole case upon the granting or refusing of the writ.

The objection which the petitioner urges against the judgment and order of the county court sought to be quashed, is, that it was not alleged and proved in that proceeding, that the town had actually incurred any expense for the support of the father of the parties. It is insisted on the part of the applicant for this writ, that no order can be made in any case upon any of the kindred, apportioning the amount each shall pay toward such support, either past or future, either on petition of the town or of any of the kindred, till the town has actually expended something for such support. The statute, among other things, imposes the duty upon every town, to “ relieve and support all poor and indigent persons lawfully settled therein, whenever they shall stand in need thereof.” Gen. Sts. ch. 20, § 1. Section 19 of the same chapter provides that “ the kindred of any poor person, who shall become chargable to any town, in the line or degree of father or grandfather, mother or grandmother, children or grandchildren, by consanguinity, living within this state, and of sufficient ability, shall be bound to -support such pauper in proportion to their respective ability.” Section 20 of the same chapter, giving the remedy, provides that the county court in the county where any one of such kindred to be charged shall reside, upon complaint by any town or by any kindred who shall have been at any expense for the relief and support of such pauper, may, on due hearing, either upon the appearance or default of the kindred supposed to be chargeable, assess and apportion upon such of the kindred as they shall find of sufficient ability, and in proportion thereto, such sum as they shall judge reasonable for or towards the support of the pauper,” &c. The argument of the petitioner for this writ of certiorari, is, that the liability and remedy given by § 19 and § 20, do not attach so as to give the right of any of such kindred to maintain the complaint given by § 20, against the others, till such “ poor person” has become chargeable to the town ; and that the word chargeable in § 19, imports that the “ poor person” has become charged upon the town by the town’s having actually incurred expense for his support. It is true, that in proceedings under the- provision of the statute authorizing towns to remove a person who “ has or is likely to become chargeable to such town,” a.distinction in form has been made in the finding of the justices, between chargeable and likely to become chargeable; a distinction, however, wholly immaterial to the right of the town to procure an order of removal. The word chargeable, in its ordinary acceptation as applicable to the imposition of a duty or burden, signifies, capable of being charged, subject to be charged, or liable to be charged, or proper to be charged, or legally liable to be charged. In this sense the word chargeable is used in §19, creating the duty on the kindred therein named to support such “poor person,” or “ such pauper,” in proportion to their respective ability. The word chargeable, in § 20, prescribing the mode of enforcing this duty upon the kindred, is used in this sense, giving the right to proceed against “ the kindred supposed to be chargeable,” that is, such as are supposed to be of the requisite degree of kindred, and of sufficient pecuniary ability to be legally liable to be charged with such support in whole or in part. The word pauper, used at the close of §19, does not necessarily imply a person who has actually received support from the town, as the word in this chapter is used indiscriminately to designate poor and indigent persons standing in need of relief, and poor persons likely to become chargeable, as well as such poor persons as have actually received support from the town. It is in this common and ordinary sense of the word chargeable, that the county court uses it in their finding of the facts in the original proceeding sought to be quashed. In this sense, that finding of the county court is free from that confusion of ideas” attributed to it by the criticism of counsel. When the father of these brothers became poor and in need of relief, and in such a state of destitution that the town should and would have relieved him, but for the act of his son James H., in affording the relief, James H. had the right to render the necessary aid, and resort to the statutory remedy to compel contribution. It was not necessary for him to go through with the useless and humiliating ceremony of refusing his father food and shelter, and compel him to receive support at the hands of the town, and then compensate the town therefor, in order to entitle himself to this remedy. It is to bo noticed that our statute does not give the remedy exclusively to the town, but to the town or to “ any kindred who shall have been at any expense for the relief and support of such pauper.” To enable one of the kindred to maintain the complaint, it is not necessary for the town and such kindred both to have actually incurred expense for such relief and support. This view of the case upon the facts found by the county court, substantially disposes also of the objections to the original complaint, raised by the motion to dismiss and the demurrer to the complaint. The complaint is sufficient to sustain the judgment, although the ground of the relief sought is not set forth therein as specifically and accurately as in the finding of the court on trial. But even if the complaint and proceedings under it are open to the objection made, the objection is of a purely technical character, for which this court would not quash the order of the county court, when upon the whole record it appeal's that justice has been done in enforcing a legal obligation substantially according to law. The writ of eartiorari is therefore denied, and the petition dismissed with costs.