Town of Plymouth v. Town of Mendon

The opinion of the court was delivered by Kellogg, J. The statute requires, that the justices, who make an order of removal, shall specify a time, within which the pauper shall remove himself to his place of settlement, and, upon his failing to comply with such order, the justices may, by warrant directed to a constable to be executed, cause the pauper to be removed. Under this provision of the statute, it is insisted, that the pauper could not be legally removed, though it be by his own consent, until after the expiration of the time specified by the justices for the pauper to remove himself; and the case of Barnet v. Concord, 4 Vt. 564, is cited to sustain this position. In that case one of the causes assigned in the motion to quash the proceedings was, that the warrant of removal was issued, and the officer to whom it was directed removed the paupers, before the time, prefixed by the justices for the paupers to remove themselves, had expired. And the judge, in delivering the opinion of the court, does indeed say, “ that the proceedings were irregular, in removing the pauper before the day given them by the court to remove themselves, — that the paupers might have gone out of the state and been no farther chargeable to any town, — and that the constable had no right to remove them before the day set for them to depart.” The reasons assigned by the judge for holding the proceedings in that respect irregular, and as constituting sufficient ground for quashing them, are not very satisfactory to us. [454] Indeed, we are unable to discover any ground, upon which the opinion can be supported, unless the removal were regarded as an invasion of the rights of the paupers by a forcible removal against their will; and for any thing that appears, such may have been the fact in the case then before the court. But even then, we are unable to see, how the town could avail themselves of this ground to quash the proceedings. For to us it seems quite obvious, that the provision of the statute, requiring the justices to specify a time, in which the paupers shall remove themselves, was made for the benefit and convenience of the pauper. It is a privilege, which he may waive by consenting to an earlier removal; but we are unable to perceive any interest, which the town can have in the matter. The pauper clearly has the right to remove at any time, after the order is made; and whether he does this with or without the aid of the officer, it seems to us, must be matter of indifference to the town. But the case at bar is distinguishable from Barnet v. Concord. There the case does not show, that the removal of the pauper was with his consent; while in this case it stands admitted upon the record, that the removal was made with the consent and at the request and procurement of the pauper. The case of Morgan v. Mead, 16 Vt. 648, is also relied upon, to support the judgment below. But we think no aid is to be derived from that case. The suit was to recover the penalty for bringing a poor person into a town, with intent to charge the town with his support. It appearing that the pauper had been duly ordered to remove to the plaintiff town, and that the defendant voluntarily aided him to remove within the time prescribed by, the justices, it was held, that the defendant was not liable to the penalty. And the court say, this is the only point necessary to be decided, — and in fact it was the only one decided. It appearing to us, that the judgment of the county court is erroneous, the same is reversed.