Burke Cnty. v. Brusven

• Decision Date: 20 February 1932
• Docket Number: No. 6025.,6025.
• Citation: 241 N.W. 82,62 N.D. 1
• Parties: BURKE COUNTY v. BRUSVEN et al.
• Court: North Dakota Supreme Court

62 N.D. 1

241 N.W. 82

BURKE COUNTY

v.BRUSVEN et al.

No. 6025.

Supreme Court of North Dakota.

Feb. 20, 1932.

Syllabus by the Court.

1. Under the laws of North Dakota relating to residence of persons entitled to poor relief (C. L. 1913, § 2501, subd. 4), each male person and each unmarried female over the age of twenty-one years, who has resided one year continuously in any county, thereby gains a residence in such county; and every person who has resided one year continuously in the state but not in any one county has a legal residence or settlement in the county in which he has longest resided within such year.

2. Under section 2500, C. L. 1913, which provides that the question of whether an applicant for poor relief has legal residence in the township so as to entitle him to relief it shall be determined by the overseers of the poor according to the provisions of section 2501, C. L. 1913, “subject to appeal to the county commissioners who may bring action in the district court to determine the legal residence of applicants for poor relief, when the question is an issue between the overseer of the poor in two or more townships and when an agreement cannot become effected,” the same rules are applied in determining the place of legal residence or settlement of an applicant for poor relief in a dispute between two or more townships, cities, or villages, as is applied in fixing such place as between counties.

3. Where it has been established that an applicant for poor relief has a legal residence in a given county and is entitled to poor relief therein, the legal residence of such person is in any township, city, or village in such county in which he has resided continuously for more than one year; but if such person has resided in one or more townships, cities, or villages within the county but less than one year in any one of them, his legal residence or settlement is in the township, city, or village in which he has longest resided within such year.

Appeal from District Court, Burke County; Lowe, Judge.

Action by Burke County against A. H. Brusven and others, Overseers of the Poor of Fay Township, Burke County, and others. From the judgment, plaintiff appeals.

Reversed and remanded.

B. L. Wilson, State's Atty., of Bowbells, for appellant.

Thos. J. Burke, Asst. Atty. Gen., amicus curiæ.

CHRISTIANSON, C. J.

This is an action brought by Burke county under section 2500, C. L. 1913, to determine the legal residence of an applicant for poor relief in that county. The material facts are undisputed, and the ultimate question presented for determination is one of statutory consideration. The material and undisputed facts are as follows: For more than one year prior to April 1, 1931, one Lewis Allen and his family were residents of Fay township in Burke county. On that day they moved to the city of Columbus in that county with the intention of making their home in that city. They remained in the city of Columbus for approximately two months and then moved to Ward county. They resided in Ward county until on or about August 21, 1931, when the authorities of Ward county caused them to be removed and returned to Burke county on the ground that they were likely to become public charges and had no legal residence in Ward county so as to entitle them to poor relief therein. It is admitted that Lewis Allen and his family have a legal residence in Burke county and are entitled to poor relief in that county; but there is a dispute as to whether such residence is in the city of Columbus or in Fay township.

The district court held that Lewis Allen and his family had a “legal residence” and “settlement” in the city of Columbus, and Burke county has appealed.

Our laws relating to residence as a condition prerequisite to entitle a person to poor relief read as follows:

“Residence may be acquired in any county so as to oblige such county to relieve and support the persons acquiring such residence in case they are in need of relief, as follows:

1. The residence of a married woman follows that of her husband if he has any within the state, otherwise her own at the time of her marriage, and if she then had any residence it shall not be lost or suspended by the marriage; and in case the wife shall be removed to the place of her residence, and the husband shall need relief, he shall receive it in the place where his wife shall have her residence.

2. Legitimate children shall follow and have the residence of their father if he has any within the state, until they gain a residence of their own, but if the father has no residence they shall in like manner follow and have the residence of their mother if she has any.

3. Illegitimate children shall follow and have the residence of their mother at the time of their birth, if she then has any within the state; but neither legitimate nor illegitimate children shall gain a residence by birth in the place where they were born, unless their parent or parents had a residence therein at the time.

4. Each male person and each unmarried female over the age of twenty-one years, who shall have resided one year continuously in any county in this state, shall thereby gain a residence in such county. Each minor whose parents, and each married woman whose husband has no residence in this state, who shall have resided one year continuously in any county in this state, shall thereby gain a residence in such county. Every person who has resided one year continuously in the state, but not in any one county, shall have a settlement in the county in which he has longest resided within such year. The time during which a person has been an inmate of a hospital, poorhouse, jail, prison or other public institution and each month during which he has received relief from the poor fund of any county, shall be excluded in determining the time of residence hereunder. Every minor not emancipated and settled in his own right shall have the same settlement as the parent with whom he has last resided.

5. Each minor who shall be bound as an apprentice to any person shall immediately upon such binding, if done in good faith, thereby gain a residence where his master has a residence.

6. Each residence when once legally acquired shall continue until it is lost or defeated by acquiring a new one in this state, or by voluntary absence from the county in which such residence had obtained for one year or more; and upon acquiring a new residence, or upon the happening of such voluntary absence, all former residence shall be defeated and lost, and the provisions of this section shall apply to cases of residence begun to be acquired or lost or defeated, as well heretofore as hereafter.” Laws 1907, c. 183, § 2501, C. L. 1913.

The foregoing statute in its present form was enacted by the Legislative Assembly in 1907 and has remained in force without change since that time. Laws 1907, c. 183, C. L. 1913, § 2501.

At the time of the enactment of this statute, and at all times thereafter until 1913, an organized civil township, a city, or a village had no responsibility, as such, to furnish aid to indigent persons; but that duty rested solely upon the county. Rev. Codes 1905, § 1851 et seq. It was made the duty of each county to “relieve and support all poor and indigent persons residing therein, whenever they shall be in need thereof,” and the board of county commissioners was authorized to “raise money for the support and employment of the poor.” Rev. Codes 1905, § 1853. The county commissioners were constituted overseers of the poor and charged with all duties incident thereto. Rev. Codes 1905, § 1851 et seq. In 1913 the Legislative Assembly adopted a new plan as regards poor relief and placed the burden of relieving and supporting poor and indigent persons residing within an organized civil township, a city, or a village jointly upon the county and such township, city, or village. Laws 1913, c. 121. The supervisors of the several townships, the aldermen or city commissioners, or village trustees are constituted ex officio overseers of the poor within their respective townships, cities, or villages and charged with corresponding duties. Laws 1913, c. 121, §§ 1, 28, C. L. 1913, §§ 2496, 2527. The board of county commissioners, however, are given authority to increase or decrease allowances made by an overseer of the poor, where justice seems to require it, “and to grant relief where an overseer of the poor of a township,” city, or village has refused to grant it. Laws 1913, c. 121, § 11, C. L. 1913, § 2508. It is provided that the township, city, or village “where such poor person has a legal residence shall pay a sum equal to twenty-five per cent” of the amounts allowed for the aid and maintenance of such poor persons, and that the county shall pay the remaining 75 per cent. thereof. Laws 1913, c. 121, § 11. As regards the question in what township an indigent person has a “legal residence,” within the purview of the statute, the Legislature said: “The question of whether an applicant for poor relief has legal residence in the...