Schuylkill County Directors v. Jackson Township Overseers

Opinion by Rice, P. J., This case came into the court below by appeal of the directors of the poor of Schuylkill county from an order of re [570] moval issued by two justices of the peace upon the information of the overseers of the poor of Jackson township,- Northumberland county. It is contended that the appeal was improperly taken, and that the order of removal should have been confirmed because the attorney for the former district, by writing indorsed on the copy of the notice of the hearing before the two justices, assented to the granting of the order. An examination of that paper shows that, while the attorney agreed that the order might issue “ the same as if the facts,” set forth in the information, “ were legally and regularly proven,” he did not expressly admit that they established the legal settlement of the pauper in the district he represented, but only that “ the only question in the case is a question of law arising on the facts.” The evident purpose was to bring this question of law to final and conclusive adjudication without unnecessary delay and expense. It would require a strained construction of the paper to hold that it precluded the district he represented from the right to appeal, and to have the question adjudicated by the court, even though it be assumed that the attorney had authority to bind the poor district by an agreement to that effect. Moreover, this was not the construction which the parties put upon the paper. No motion to quash the appeal was made, but the case was brought to hearing before the court upon an agreed statement of the facts, which concluded as follows : “ The court is to decide and ascertain the legal settlement of the said Harrison Cleveland Kembell, whether the same be in Jackson township poor district or in the Schuylkill poor district on the foregoing facts, and to affirm or discharge the order of removal. ■ The costs to follow the finding or judgment, and each of the parties reserves the right to appeal to a court of error.” The court was- clearly right in holding that it had jurisdiction to decide the question above presented as to the legal settlement of the pauper, and to affirm or discharge the order of removal in accordance with its decision of that question, notwithstanding the foregoing assent of the attorney to the issuing of the order. The 11th section of the act of June 13,1836 declares that every illegitimate child shall be deemed settled in the place where the mother was legally settled at the time of the birth of such child. In Overseers, etc., of Nippenose Twp. v. Over [571] seers, etc., of Jersey Shore, 48 Pa. 402, Chief Justice WoodWABD intimated that the child “perhaps may derive from her mother a subsequent settlement acquired by her,” but the question did not arise upon the facts of that case, and therefore was not decided. It did arise, however, in Overseers of Limestone Twp. v. Overseers of Licking Twp., 1 Penny. 475, and it was there distinctly held that the settlement of an illegitimate does not follow the mother when she changes her settlement. This case was decided in 1881, and the ground stated in the opinion for the decision, but not expressly stated to be the only ground, was, that the act of April 27, 1855 only confers upon illegitimate children the capacity to take or inherit real and personal estate from their mother, but none of the other rights of legitimate children are conferred upon them. This decision unquestionably would control the present case, whether the settlement of the mother of the illegitimate in Schuylkill county was acquired by the ownership and occupancy of, and payment of taxes upon, a freehold, or by service, or derivatively from her husband, unless the act of July 10, 1901, P. L. 639, requires a different ruling. The first section reads as follows : “ That illegitimate children shall take and be known by the name of their mother, and the common-law doctrine of nullius filius shall not apply as between the mother and her illegitimate child or children. The mother and her heirs, and her illegitimate child and its heirs shall be mutually liable one to the other, and shall enjoy all the rights and privileges one to the other in the same manner, and to the same extent, as if the said child or children had been born in lawful wedlock.” We are not prepared to say, in view of the foregoing provisions, that the settlement acquired by the mother in another district by her own act would not, under any circumstances, become the derivative settlement of the illegitimate child. It is to be borne in mind, however, that in this case the illegitimate did not remove with his mother to Schuylkill county, but remained in the poor district where he was born, became a charge thereon before his mother acquired another legal settlement, and before the passage of the act of 1901, and remained a charge thereon from that time to- the date of removal, which was August 17, 1904. In general, a person who is chargeable to and receiving aid as a pauper from one district cannot acquire a settlement [572] in another so long as that relation exists. Overseers, etc., of Lewisburg v. Overseers of Milton, 18 W. N. C. 141; Overseers, etc., of Penns Township v. Overseers, etc., of Selinsgrove, 18 W. N. C. 143; Poor District of Lock Haven v. Poor District of Chapman Twp., 22 W. N. C. 114. An apparent exception to this general rule was established by the case of Scranton Poor District v. Directors, etc., of Danville and Mahoning, 106 Pa. 446. It was there held that a man may gain a new settlement by residence and paying taxes in a new district, notwithstanding the fact that during the same time his wife, whom he had abandoned, was receiving relief as a pauper in the district of his former settlement, and that in such case an order is proper for the removal of the wife to the new settlement acquired by her husband. It is argued that upon the same principle the pauper in this case should be held to have acquired a settlement derivatively from her mother in Schuylkill county. We think, however, the cases are plainly distinguishable. In the first place the act expressly declares the rule as to the settlement of an illegitimate child, and in the second place the point for decision in the case last cited was whether the husband could acquire a settlement in another district while his wife was receiving aid as a pauper in the first district, and that question having been determined affirmatively it followed by express direction of the act, that the settlement of the husband became the settlement of the wife. Whatever may be the effect of the act of 1901 as to future cases, we are unable to conclude that its effect was, under the facts of this case, to transfer the legal settlement of the pauper from the place where he was born, and where his mother was legally settled at the time of his birth, to the place in Schuylkill county to which she had removed. The order and judgment are affirmed.