Shields v. Johnson County

ON MOTION FOB, EEHEABING-. Burgess, J. At the April term, 1897, we reversed the judgment of the court below in this case, and remanded the cause for further trial. Since then the defendant has presented a motion for rehearing, and [80] upon further consideration we are of the opinion that upon one question raised in the motion to be hereafter passed upon, we committed error. It is insisted in the motion that it was a condition precedent to the right of plaintiff’s recovery that the county court of Johnson county must first find that Canute Farland was a citizen of that county; that he was insane and insolvent, and then make an order of record making him a county patient. That he was a citizen of the county at the time of his being sentenced to the penitentiary, has since become insane, and is insolvent, are conditions precedent to the liability of the county for his board and clothing at the asylum, may be conceded, but all of these facts are alleged in the petition, and being material averments stand admitted by the demurrer. But that the county court of the county must first find these facts to be true, and then make an order making Farland a county patient before her liability for his keeping attaches, if liable at all, we are unable to give our assent. By section 4247, Revised Statutes 1889, it is provided that “if any person, after having been convicted of any crime or misdemeanor, become insane before the execution or expiration of the sentence of the court, it shall be the duty of the Governor of the State to inquire into the facts, and he may by his warrant to the sheriff of the proper county, or the warden of the penitentiary, order such lunatic to be conveyed to the insane asylum, and there kept until restored to reason.” By this statute express power and authority are conferred upon the Executive of the State to inquire into the facts, in such manner as he may think best, with respect to the insanity of convicts who become insane after their conviction, and before the expiration of their sentences, and by his warrant, directed to the warden of the penitentiary, to order such lunatic to be [81] conveyed to the insane asylum, and there kept until restored to reason. There is no appeal from the conclusion which may be reached by the executive in such cases, and his warrant to the warden is conclusive with respect to such action. This power was conferred upon the Executive for the manifest purpose of avoiding the necessary inconvenience and expense of an attempt to remove convicts who become insane after their incarceration in the penitentiary to the county or place where convicted for the purpose of having them declared insane by a jury of the county where convicted. This same section further provides that “the expenses of the insane convict at the asylum for his board and clothing shall be paid as now provided by law in cases of the insane poor: provided, if such person shall have property, the costs shall be paid out of his property by his guardian.” The expenses for keeping the insane poor at the asylum are paid by the counties of their respective residences. R. S. 1889, sec. 484. While in this case the burden would rest upon the plaintiff of showing that Earland was a resident of Johnson county at the time of his conviction, and that he had no property, those issues are properly presented by the allegations in the petition, and it was not essential under the facts disclosed by the record in this ease, that they should have been first found to have been as alleged before the institution of this suit by the county court, or of any other tribunal of that county. Such proceedings were dispensed with, impliedly at least, by section 4247, supra. The circuit court being of general jurisdiction could inquire into such matters in an action of this character. The mode of payment simply means how and by whom paid, and has no reference whatever to the tribunal in or by which the conditions upon which [82] counties may be held liable for the keeping at the insane asylum of indigent insane convicts are to be determined. It is also insisted that section 4247, supra, is not retroactive in its operation and does not therefore include convicts who were sentenced to the penitentiary and became insane before it became a law on the twenty-sixth day of June, 1881. Farland was convicted at the October term, 1871, of the circuit court of Johnson county. In Leete v. Bank, 115 Mo. 184, it was ruled, Sherwood, J., delivering the opinion of the court, that a statute is to be construed prospectively unless the intent -that it is to be construed retrospectively is clearly expressed on its face. A similar ruling was announced in State ex rel. v. Auditor, 41 Mo. 25; State ex rel. v. Ferguson, 62 Mo. 77; Thompson v. Smith, 8 Mo. 723; State ex rel. v. Hays, 52 Mo. 578;. Reed v. Swan, 133 Mo. 100; Bartlett v. Ball, 142 Mo. 28. There is nothing in this statute which would seem to indicate with any degree of clearness that it was intended by the legislature to apply retrospectively, and under the rule announced by this court in the foregoing adjudications we must hold that it does not do so. It therefore logically follows that'the defendant county, can not be held responsible for the keeping at the insane asylum of the insane convict Farland, and that the demurrer to the petition was properly sustained. We therefore affirm the judgment. Gantt, P. J., and Sherwood, J., concur.