Town of Dorset v. Town of Rutland

The opinion of the court was delivered by Hebam), J. Two principal questions arise in this case: 1. Was it necessary for Rutland to take an appeal from the order of removal 1 2. If it was necessary, then was the appeal taken in season ? The statutory provision is, that, “ when any order of removal is made, a true and attested copy of such order shall be left with the overseer of the town to which such pauper is ordered to be removed, within thirty days after the making of the order, unless such pauper is removed in that time.” In relation to the appeal, it is provided that, “ if the overseer shall think himself aggrieved by any order or warrant of removal, he /may appeal therefrom to the county court next to be holden within and for the county in which such order was made.” In this case the order of removal was not served upon the overseer of Rutland within the thirty days, nor before the county court next after the order was made, nor was the pauper removed in that time. Then there was nothing from which to appeal in that time. The copy of the warrant, which the constable left with the overseer on the 26th of .September, was no compliance with the law, and was no act, of itself, which the law required to be done, and, of course, Rutland was in no way bound to regard it; and, until a copy of the order was served as the statute requires, or the pauper was actually removed, the order would not become operative upon Rutland. But, when the pauper is in fact removed, the town must then appeal, to avoid the consequences of having the settlement of the pauper fastened upon them, — for such would the effect, at least in all cases where the pauper had no legal settlement in the state. No proceeding, under the statute, could be sustained against .the constable for [422] transporting the pauper under a warrant legal upon the face of it. Bradford v. Corinth, 1 Aik. 290. The statute provides that the town aggrieved may appeal to the court, next to be holden in the county in which such order, is made. Now what is the meaning of that? "What construction will it bear? and what construction must it have, in order to answer the purpose which was intended ? It is obvious that it must mean the next county court after the order of removal has been served upon the overseer of the town to which the pauper is ordered to remove, or to the county court next after the pauper is actually removed, in case the order is not served as the statute requires. Suppose the order of removal to be made one week before the session of the court, and, on the 29th day after the order is made, a copy of the order is regularly served upon the overseer of the poor of the town fo which the pauper is ordered to remove, and a term of the court has intervened ; — the town making the order has strictly complied with the letter and spirit of the law, and still the other town is deprived of all remedy by appeal, unless we adopt the construction already suggested. The view that we have thus taken meets both branches of the inquiry. It was necessary that Rutland should appeal, because the proceedings on the part of Dorset were merely voidable, and not void, and Rutland could in no other way avoid the effect of them than by appealing; — and as to the other branch of the inquiry, the appeal was taken in season, because it was taken to the county court next to be holden after the town of Rutland was made a party to the proceedings. The judgment of the county court is affirmed.