Town of Morristown v. Town of Fairfield

The opinion of the court was delivered by Peck, J. The justices who made the order of i-emoval having been rated inhabitants and tax-payers in the town of Morristown at the time they made the order, would be disqualified to act as justices in the case by the general provision of Gen. Sts. ch. 31, § 22, prohibiting justices of the peace from taking cognizance of a cause or matter, or doing any judicial act, in which they are interested. But Gen. Sts. ch. 20, § 4, provides that “any two justices, though inhabitants of said town” from which the removal is made, may make the order. The particular provision of the — 40 — statute must prevail over the general provision, if the two provisions conflict. The particular provision that any two justices, though inhabitants of said town,” &c., must be construed to include justices who are rated inhabitants; otherwise the words, though inhabitants of said town,” are without legal significance or effect; as a justice who is an inhabitant of the town, but not rated or taxed therein, would not be interested or disqualified under the general provision of ch. 31, § 22, by reason of being such inhabitant. A statute should be so construed as to give effect to every part of it, unless it is thereby rendered repugnant or irreconcilable with its obvious intent. It is so generally true that the inhabitants of a town are rated, and tax-payers therein, that it is manifest that the legislature used the word inhabitants as synonymous with, or as including, rated inhabitants. This has long been the practical construction of this provision of the statute, and of former statutes on this subject containing similar language. The plea to the jurisdiction of the justices was properly overruled. As the mother of the pauper, whose maiden name was Charlotte A. Bartram, resided in Fairfield with her father, Willis Bartram, at the time she arrived to the age of majority, she took the settlement of her father which he then had in Fairfield ; and having continued to reside there with her father until about 1848, when, twenty-five years old, she married James Hogaboon, her settlement at the time of this marriage was stil'l in Fairfield. The pauper in question is the fruit of this marriage, and if the marriage was a legal marriage, the pauper had from his father a derivative settlement in Highgate, where his father’s settlement ever was up to and at the time of his death in 1869 ; and on this hypothesis the pauper was unduly removed. But the case shows that “James Hogaboon, at the time he married Charlotte A., had a wife living, and by that marriage had several children; and such wife was proved to have been living some two years ago.” Hogaboon having another wife living at the time of his marriage to the pauper’s mother, rendered this marriage void ; and therefore neither the mother of the pauper, nor the pauper, derived any settlement from Hogaboon, the pauper’s father. The — 41 — position of the defendant’s, counsel that from the long time Hogaboon and the pauper’s mother lived together as husband and wife, the law, in favor of innocence, would presume a divorce of Hogaboon from his former wife, is not tenable. In a criminal prosecution for bigamy, it is necessary to a conviction that the government prove, not only two marriages of the accused, but also that the former wife or husband of the accused was living at the time of the subsequent marriag’e ; as the presumption of innocence prevails over the presumption of the duration of life. The same legal presumption of the legality of a second marriage is generally applied in civil suits between towns in questions of settlement under pauper laws. Such presumption would be made in this case, did it not appear that it was proved that the former wife of Hogaboon was living at the time of his marriage with the mother of the pauper. But to presume a divorce, of Hogaboon from his former wife, is quite a different matter from presuming her death, especially as a divorce, if any, is matter of record, and generally easily proved. Death is an event that happens to all, and the only uncertainty attending it is that of time ; but a divorce is a rare and unexpected event, happening to but few, and is the exception and not the rule. A divorce from the bonds of matrimony generally involves a gross violation of the obligations of the marriage relation, and often a crime, in one of the parties; hence, to presume in favor of innocence, a divorce in this case, would be too much like presuming one crime to avoid the conclusion of another. The paper found by the pauper’s mother in Hogaboon’s pocket soon after her marriage to him, which she called a “divorcement,” with no evidence of its contents, is not sufficient with- the other facts in the case to warrant such presumption. The settlement which the father of the pauper’s mother acquired in Bakersfield after her majority, was not communicated to her, and hence her son, the pauper, took no settlement in that town. It is insisted on the part of the defense, that the orders of removal of James Hogaboon and family in 1868 and in 1869, from Morristown to Highgate, with the officer’s return of service, from — 42 — which there was no appeal, conclusively fixed the pauper’s settlement in Highgate. Copies of those orders have not been furnished us, but the substance of them appears to be stated in the exceptions. .Whatever the effect of those orders may have been in the absence of any arrangement between those towns in relation to them, as it appears that the overseers of the two towns made an arrangement by which James Hogaboon was received as a pauper properly chargeable to Highgate, and the orders of removal were waived by Morristown as to Charlotte A. and the children, and that Highgate forbore to take an appeal from the orders by reason of such arrangement, the orders of removal had no effect to change the settlement of the pauper in question in this case. It follows, therefore, that the settlement of the pauper’s mother continued in Fairfield to the time of her marriage with Gale ; and the pauper, from his birth down to the time of this marriage, had a derivative settlement from his mother, in Fairfield. The marriage of the pauper’s mother with Hogaboon being void, her subsequent marriage with Gale was valid, and by it she took a derivative settlement from Gale in Elmore, where his settlement then was, and still is. It is insisted that if the marriage of the pauper’s mother with Hogaboon is invalid, and the pauper regarded as illegitimate-, and that the marriage with Gale is valid, then the pauper, being a minor, took the derivative settlement of his mother in Elmore, which she acquired by her marriage with Gale. It is only by statute that an illegitimate child takes the settlement of the mother. By our statute it is provided that “ illegitimate children shall follow and have the settlement of their mother.” Gen. Sts. ch. 19, § 1. If the settlement which the mother acquired in Elmore had been acquired by her in her own right, the pauper would have taken that settlement. But the question is, whether this provision of the statute includes a derivative settlement which the mother of an illegitimate child acquires by marriage subsequent to the birth of such child. In Connecticut it is held, in relation to illegitimate children, that such derivative settlement thus acquired by the mother by marriage after the birth of such children, is communicated to them. New Haven v. Newton, 12 — 43 — Conn. 171 ; Newton v. Fairfield, 18 Conn. 352 ; Oxford v. Bethany, 19 Conn. 232. In Massachusetts and in New York, under statutes very similar and almost identical with ours in relation to illegitimate children taking the settlement of the mother, it is held that they follow the settlement of the mother acquired by her marriage after their birth, the same as if acquired in her own right. And in England, under the provision of 4 & 5 W. 4, c. 76, s. 71, which provides that illegitimate children, born after the passing of the act, shall have and follow the settlement of the mother, it is held that the settlement of illegitimate children, born after the passing- of the act, follows the mother’s settlement acquired by marriage after their birth. The Queen v. St. Mary, 4 Q. B. 581, (45 E. C. L. 579). But in Burlington v. Essex, 19 Vt. 91, it was decided that under the act of 1817, the provision that “ illegitimate children shall have the settlement of their mother,” did not extend to a settlement acquired by the mother after the birth of such children ; and in Newport v. Derby the same question was decided the same way under the present statute, the'court holding that notwithstanding the addition of the word follow in the present statute, the construction was the same as the act of 1817 in respect to this question. It is true that in Burlington v. Essex, the illegitimate child, the pauper, was born under the act of 1801, and took a settlement by birth by the common law, as the act of 1801 had no provision giving illegitimate children the settlement of the mother; and the court in that case seem to have attached some importance to that fact. But it is difficult to see how that fact was of any importance, as the subsequent marriage of the mother, relied on as changing the settlement of the pauper, took place under the act of 1817. It is evident from the opinion of the court in that case, the decision would have been the same, independent of that consideration. In Newport v. Derby, the illegitimate child, the pauper, was not born till after the act of 1817 was in force, the provisions of which remained in force till the present statute was passed ; and neither the pauper nor the mother ever had any settlement in the state except the settlement of the mother which she acquired by marriage after the birth of the pauper. The pauper in the case at bar did not take — 44 — the settlement of his mother which she acquired by her marriage with Gale. It is stated in the exceptions, that “the defendant also claimed • that the pauper being a minor residing with his mother, was not subject to removal under the statute.” No such question is presented by the defendant’s plea. The allegation in the plea that the pauper “ was unduly removed,” and that “ the town of Fairfield, defendant, is not chargeable with the support of said Hogaboon, pauper,” is not an allegation of any traversable fact, but is only a legal conclusion from the allegation that “ said town of Fairfield is not the last place of legal settlement of said Hogaboon.” But, as the question has been argued without any allusion to the fact that the point is not embraced in the issue formed by the pleadings, the court are not inclined to dispose of the question upon this ground, as the plaintiff’s counsel may have practically waived this objection in the county court by their silence. The simple fact that the pauper is still a minor, does not render him irremovable to the place of his legal settlement without the removal of his mother. Mifior children whose tender age, or physical or mental weakness or condition, make it necessary that they should have the care, sympathy, and control of their parents, rendering it improper, upon the principles of humanity, that they should be separated, are irremovable from them, notwithstanding the general unqualified language of the statute. But the facts found are not sufficient to bring this ca.c within this exception. The objection that the pauper being a minor, could not come to the town of Morristown to reside, within the meaning of the statute, does not appear to have been made in the county court; nor could it prevail if' it had been raised, as it appears that when his father and mother removed there to reside, and commenced their residence there, the pauper was with them as part of the family. Judgment affirmed.