HomeMy WebLinkAbout2552 Report of a court ruling in the case of City of Fall River vs. City of Taunton, concerning Edwin R. Burr, October 24-November 12, 1889City of Fall River vs. City of Taunton
Bristol. Octo. 24, 1889. - November 12, 1889
Present: Devens, C. Allen, Holmes, T Knowlton, J.J.
Pauper_Soldier_Minor_military Settlement
Under the Pub. Sts. C. 83 § 1, d. 11, a soldier, who was a minor
at the time he enlisted into the military service of the United States
during the late civil war as a part of the quota of a city or
town, acquired, together with his wife or widow and minor children,
the same settlement therein as if he had been of full age at the
time of his enlistment.
Contract. The declaration alleged that Edwin
R. Burr on March 1, 1864, being then eighteen years
old, enlisted in Company "E", 58th Regiment Massachusuetts
Volunteers, and was duly mustered into the military
service of the United States during the late civil war, to
the credit and upon the quota of the defendant city,
and served until he was honerably discharged on
July 14, 1865; that Edwin R., whose present
residence was in New Bedford, had never otherwise
gained a settlement within this Commonwealth;
that Orianna Burr, who was married to Edwin
R. in 1864, was on April 24, 1888, committed to
the lunatic hospital located in the defendant city
as an insane pauper; that she was at the time
of her commitment residing in Fall River, and
had resided there more than five years continuously
since she became twenty-one years of age; that
the plaintiff was called upon to pay, and did
pay on August 8, 1888, the sum of $31.57 for the
support of Orianna at such hospital; that the
plaintiff gave the defendant due notice of such
payment, and of its claim that Orianna had a
legal settlement in the defendant city, but the de-
fendant denied that Edwin R. had ever gained
a settlement therein, and that the defendant owed
the plaintiff $31.57, with interest thereon.
The defendant demurred to the declaration
on the ground that it did not set forth a legal
cause of action. The Superior Court overruled
the demurrer and the defendant appealed to this
court.
A. M. Alger, for the defendant.
J. F. Jackson for the plaintiff.
Knowlton, J. If the husband of the pauper gained
a settlement by his enlistment and service as a
soldier upon the quota of the defendant city in the
late civil war, the demurrer must-be overrulled.
It has undoubtly been a part of the wise and
humane policy of the Commonwealth, in its legislation
for the relief of paupers, to prevent, so
far as possible, that compulsory seperation of
members of a family. A wife follows the settlement
of her husband, and legitimate children
follow the settlement of ther father it he has any
in the State, and if he has none, they follow that
of their mother, if she has any. Pub. Sts. G.83, S1.
The St. of 1865, c. 230, which first created military
settlements, was passed when there were many
soldiers in the State who had not attained their
majority and it recognized this policy by limiting
its provisions to persons who were at the time of
enlistment of the age of twenty-one years. It also
contained an exception of those who had not resided
in the city or town six months next previous to the
time of entering service. It further provided,
that a person who by reason of want, of age or
residence should not be entitled to a settlement under
the act, should be nevertheless be entitled, for himself,
his wife or widow, or minor children, to support
in the city or town, if they should fall into distress
therein, and should not be sent thence to the State
almshouse, not removed to any other place.
The St. of 1870. C. 392, SS 3,5,6, repealed the former
legislation upon this subject, and substituted the
same law, with the exception of the provisions as to
age and inhabitancy and the provision last above
stated, and with a clause including persons who
served on the quota of the Commonwealth but
not on the quota of any city or town. At the time
of the passage of this act, the war had been
ended more than five years, and there were very
few, if any, who had served a year in the war
who had not attained their majority. We
think the omission by the Legislature of the original
provisions in regard to minors was for the purpose
of making a material change in the statute, and
of including a large class who had become of full
age, and who were not included in the former
statute because many of them were then minors.
The extension of the liberal provisions of the law by
the St. of 1871, c. 379, S2, and the re-enacment of
the St. of 1878, c. 190, in the Pub. Sts. c. 83, s1, cl. 11,
confirm this opinion. Since the passage of the
St. of 1870, c. 392, soldiers who were minor at
the time of enlistment are entitled to the same
benefits under this law as if they had been of
full age.
Demurrer orverruled