Town of Barre v. Town of Morristown

Williams, J., delivered the opinion of the Court. — From the facts which are stated in this case the following questions arise. 1st. Whether the warning to Brigham and his wife, made by the select-men of Morristoion, a copy of which was offered in evidence, and rejected, prevented the paupers from gaining a settlement in Morristown. 2nd. Whether the proceedings of the overseers of the poor of Barre, in taking the paupers from Morristoion, and supporting them in Barre, are conclusive evidence of their being settled in Barre. 3d. Whether the order made by the justices of the peace of Orleans county, in December, A. D. 1823, in connection with the other proceedings of the overseers of the poor of Barre, are conclusive evidence, that the settlement of the paupers was in Bane. This last is the most important question in the case, and the only one on which the Court have had any doubts. On the first question it will be only necessary to remark, that we cannot give to the warning the effect to prevent the paupers from gaining a settlement in Morristoion, without overturning the numerous decisions which have been made on this subject, and without dispensing with the requisitions of the statute. The return does not state with whom, or where, in the house, the copy was left, and is manifestly bad, either as a return on a writ of summons, or on a warning under the statute then in force. On the second question it will Be sufficient to remark, that the proceedings of the overseers of the poor of Barre may be legal evidence, and, as such, may affect the interest of the town ; but are not conclusive: they are tobe considered in connection with the other evidence, which may be produced. In like manner, relieving the pauper in Morristown, or taking him home when notified that he and his family were becoming chargeable, and supporting and maintaining them, for a long time, was evidence, that the pauper was settled in the town relieving. But if this was done under a mistake, as to the facts, or as to the law,and if it can be shown that the settlement of the pauper was not in the town whose overseers have supported him ; such proceedings are not, and ought not to be, conclusive upon the question of settlement. Jt may be further remarked, that it is not stated in this case, [584] that the overseers of the poor of Barre actually did relieve the paupers while residing in Morristown. Since the argument the case has been amended by adding a vote of the town of Barre, passed in July, A. D. 1823. This vote does not make any difference in our views of this question. It conferred no additional power on the overseers, was probably passed at their request to sanction any course which they might think proper to take ; but did not by any means enable them to fix the settlement of the paupers in Barre, if they had none there before. It might authorize or justify them in pursuing, or in omitting to pursue, certain measures, the effect of which might have fixed the settlement in Barre. But the vote itself did not alter the character or nature of their proceedings ; and had no tendency in itself directly to alter or affect the settlement of the paupers. On the last question, as to the effect of the order made by the justices of the peace of the county of Orleans, adjudging the settlement of Brigham to be in Barre, the Court are of opinion, that the order was not conclusive evidence that the settlement was in Barre. An order or removal unappealed from is conclusive evidence of the settlement of a pauper in the town to which the removal is made. So is an order affirmed on appeal j and such order is not only conclusive between the towns who are parties thereto, but upon all other towns, on the question of settlement. This was decided in a case between Manchester and Dorset, 3 Vt. Rep. 370. An order of removal reversed on appeal is only conclusive between the parties to the order. To give an order bf removal this effect, and to make it conclusive as to all the world, it must be executed ; that is, the pauper must be actually removed, unless prevented by sickness or death ; or the order must be perfected by giving legal notice of the same. When such actual removal is made,- the parish to which the removal is made has notice of the proceedings. Under the statute in England the justices do not order the pauper to remove himself, but direct the overseers of the poor of the parish, making the application, to remove the pauper, and, at the same time, to leave a copy of their proceedings with the overseers of the poor of the parish to which the removal is made. In this state it is required, that an attested copy of every such order shall be left with the overseers of the poor of the town to which the removal is made, within thirty days after making the [585] •order. This is not only for the purpose of giving notice to the town 5 but it also determines the term of the court to which an appeal is to be had. The appeal is to be taken to the term of the •court holden next after notice of the order is given. ° The leaving this copy is a positive requisition of the statute,and was undoubtedly so required on sufficient and adequate reasons ; and it is not for us to say that it may be dispensed with, or that it is an unnecessary requirement. In the case of Hartland vs. Williamstown, 1 Aiken, 341, the Chief Justice, in giving the opinion of the Court,remarked, that he presumed “ an order would not be conclusive upon the parish to which the pauper was removed ■without notice.” This presumption is fortified by the whole current of authorities, and is founded on principles, which ought never to be departed from. In the same case he remarked, that the statute having made provision for giving notice in a particular way, notice in any other way would not be good. These remarks would lead us to think, that the opinion of the Chief Justice, in •that case, was, that to make such order conclusive, notice of it must be given in the way pointed out by statute. And we in this case come to the conclusion, on examining the statute, that to make an order of removal conclusive, not only between the towns who are parties thereto, but also, as to all others, it must be perfected by giving the notice required by the statute, that is, by leaving a true and attested copy within thirty days after the order of removal is made. The arguments which have been urged against the view of the case which we have taken, may deserve some consideration. It has been said, that the proceedings of the town of Barre, and their overseers, and the other proceedings, amount to a waiver of the requisitions of the statute. To this it may be replied, that, if this requisition could be waived, the facts in this case would not amount to such waiver. But further, by no agreement of the parties can a proceeding, wholly imperfect and incomplete, be considered as complete ; by no agreement can a parol contract be treated as a specialty ; an opinion of individuals, as a judgement of a court; a judgement incomplete, and not perfected, as a judgement executed. If the overseers of the poor of Barre had received the paupers, without any order of removal, it could not be contended that this agreement was like an order of removal, conclusive upon the question of settlement as to all others. In only one case has it ever been intimated from the bench, that leaving the copy required by the fifth section of the statute of 1817, in [586] relation to the settlement of the poor, could be dispensed with. It has been intimated, that where an appeal was taken’ irom the order before the expiration of the thirty days,, the party taking suc^ aPPea^ could not object that such copy was-notleft. There may be some ground for this suggestion, as the appeal might be taken, and a decision had thereon, before the expiration of the thirty days. Whether this intimation is correct or not, is not material for us to say. It has been decided, however, that where the appeal was taken after the expiration of the thirty days, the omission to leave such copy was a defect, wich the party appealing might insist on, as an objection to the order ; and the proceedings, on that ground, would be quashed. — Town of Georgia vs. Town of St. Albans, 3 Vt. Rep. 42. Smith & Peck, for Barre. Upham & Keith, & Merrill & Spaulding, for Morristown. The proceedings of both these towns were evidently had under a mistaken view of their respective liabilities. It was-believed that the paupers were settled in Barre, and under this belief the town of Morristown neglected to complete their order by leaving the copy required by the statute. The town of Narre,under the same belief, consented to receive the paupers without taking any appeal or without any actual removal. And it may as well be considered, as an abandonment of the order, on the part of Morristown, as to consider it a waiver on the part of Barre of the notice necessary to perfect the order. If a town intends to prevent a person from gaining a settlement therein, they must pursue the statute made for this purpose in ever ry essential particular, and not omit any of its provisions, relying upon any agreement, as supplying such omission. A town could not neglect to warn out a pauper, relying on an agreement express or implied on the part of another town, and insist that such agrees ment shall have the same effect as a warning. Nor can they neglect to do every thing required of them by statute to give validity to an order of removal, and insist, that such order shall have all the effect of a valid order. The town of Morristown did not perfect their order of removal made in 1323, by giving the notice required ; and the order, therefore, cannot be received as conclusive evidence that the paupers were settled in Barre. The judgement of the county court must, therefore, be affirmed.