Matter of Chirillo

Loughran, J. In 1926 Rosario Chirillo became a citizen of the United States by naturalization. He lived thereafter at Wooster, Ohio, until January, 1939, when he removed *419 with his wife and minor children to the town of Mamaroneck, Westchester county, New York. Beginning in September, 1939, the family received public relief from the Commissioner of Public Welfare of Westchester County in installments amounting altogether to $116.60. Upon a petition of the Commissioner, the County Court of the county on February 19,1940, made an order as follows: “ Ordered, that the respondents, Rosario Chirillo and Josephine Chirillo, his wife, together with the minor children of said Rosario Chirillo and Josephine Chirillo, namely: Louis Chirillo, Mary Chirillo, Joseph Chirillo and Joseph Calabre, leave the State of New York within twenty (20) days after the service upon said Rosario Chirillo and Josephine Chirillo, his wife, individually and as parents and natural guardians of the aforesaid minor children, and on each of the said minor children, Louis Chirillo, Mary Chirillo, Joseph Chirillo and Joseph Calabre, of a certified copy of this order; and it is further “ Ordered, that upon the failure of said respondents to leave the State of New York as hereinabove provided, the Sheriff of Westchester County be and he hereby is ordered and directed to remove the said respondents herein, namely: Rosario Chirillo and Josephine Chirillo, his wife, and the minor children, Louis Chirillo, Mary Chirillo, Joseph Chirillo and Joseph Calabre, from their present residence in the Town of Mamaroneck, Westchester County, New York, to the City of Wooster, County of Wayne, State of Ohio.” This order was made in professed exercise of the jurisdiction conferred by section 71 of the Public Welfare Law (Cons. Laws, ch. 42) which reads as follows: “ Removal of non-resident and alien poor to other states and countries. When any person who is an inmate of any public home or is otherwise cared for at the expense of the state or of any public welfare district belongs to or has friends willing to support him or to aid in supporting him in any other state or country, the state department of social welfare may cause his removal to such state or country, *420 provided, in the judgment of the state department of social welfare, the interest of the state and the welfare of such person will be thereby promoted. After notification of the proposed removal, if such person shall refuse to be so removed, the commissioner of the public welfare district wherein such person is being cared for may, with the prior approval of the state department, apply to the county judge of his county for the issuance of an order to the sheriff of the county in which such person is being cared for, or to some other person or persons, to remove the person to the state or country or district therein legally responsible for or willing to support him, and cause his removal thereto. The expense of such removal shall be paid from the state treasury on the warrant of the comptroller pursuant to a verified account submitted by the proper officer of the state department of social welfare.” Contending that the provisions of section 71 of the Public Welfare Law violate the Federal Constitution, the Chirillo family have as of right appealed from the order of removal of the County Court of Westchester County directly to this court as in a case “ where the only question involved on the appeal is the validity of a statutory provision of the state or of the United States under the constitution of the state or of the United States.” (N. Y. Const. art. VI, § 7, subd. 3; Civ. Prac. Act, § 588, subd. 3.) What is meant by section 71 of the Public Welfare Law when it speaks of a person who “ belongs to * * * any other state or country? ” The answer of the court below was that a person “ belongs to ” that State or country where he has the right to have his need relieved under poor laws. The court found that the appellants had their poor law settlement at Wooster, Ohio — where, as the court also found, the relief authorities were willing to support the appellants on their return. Likewise the court was of opinion that the phrase “ non-resident poor,” as used in section 71, means indigent persons who have not gained a settlement in a town or city of this State by continuous residence for one year without receiving certain types of *421 public relief or care. (See Public Welfare Law, art. VII, particularly, § 56.) This construction of section 71 is denied by the appellants. It is argued for them that “ residence ” has here its ordinary legal meaning (i. e., domicile), and that consequently they must be taken to be residents of Westchester county, New York. Questions of the intent and scope of the statute are thus major issues. Amici curios attack section 71 with the claim that it attempts to direct the compulsory removal of any indigent person from this State to any other place where he “ has friends willing to support him or to aid in supporting him.” It may be, however, that section 71 will bear the restrictive interpretation that the consent of an indigent person is essential to his deliverance to such chance kindred,— if indeed the section must necessarily stand or fall in its entirety. The foregoing plainly shows that this case is not one “ where the only question involved on the appeal is the validity of a statutory provision of the state or of the United States under the constitution of the state or of the United States.” I am aware that there are cases in which this court on a direct appeal has determined the constitutional validity of a statute upon the basis of a construction thereof made by a court of first instance with the assent of all parties to the controversy. (Cf. Doubleday, Doran & Co. v. Macy & Co., 269 N. Y. 272.) In respect of that edge of our jurisdiction, it seems to me to be enough to say that such a case is not now before us. The appeal should be dismissed, without costs.