City Of Augusta v. Inhabitants Of Town Of Mexico.

• Decision Date: 22 August 1944
• Citation: 38 A.2d 822
• Parties: CITY OF AUGUSTA v. INHABITANTS OF TOWN OF MEXICO.
• Court: Maine Supreme Court

38 A.2d 822

CITY OF AUGUSTA

v.INHABITANTS OF TOWN OF MEXICO.

Supreme Judicial Court of Maine.

Aug. 22, 1944.

Report from Superior Court, Kennebec County.

Action by City of Augusta against Inhabitants of the Town of Mexico to recover for pauper supplies. The case is before the Supreme Judicial Court on a report on an agreed statement of facts.

Remanded for entry of judgment for plaintiff.

Before STURGIS, C. J., and THAXTER, HUDSON, MANSER, MURCHIE, and CHAPMAN, JJ.

George H. Hunt, of Augusta, for plaintiff.

Fred E. Hanscom, of Rumford, for defendant.

HUDSON, Justice.

This pauper case is reported upon an agreed statement of facts. The principal question is whether the pauper settlement of an illegitimate child derived at birth from its mother follows and changes with her subsequent pauper settlements. Herein there was neither emancipation nor acquisition by the child of a new pauper settlement in its own right.

R.S.1930, Chap. 33, Sec. 1, Par. III, provided that “Illegitimate children have the settlement of their mother, at the time of their birth ***.” (Italics ours.) But this statute was amended by P.L.1933, Chap. 203, Sec. 3, to read as follows: “Illegitimate children have the settlement of their mother ***.” Prior to this amendment it is conceded that an illegitimate child took the pauper settlement of its mother at birth, and that that settlement remained until it gained one in its own right, even though the mother subsequently acquired another. City of Hallowell v. Augusta, 52 Me. 216, 219; Inhabitants of Houlton v. Lubec, 35 Me. 411, 413; and Inhabitants of Biddeford v. Saco, 7 Me. 270, 272.

In the case at bar, the mother's pauper settlement at the time of the birth of the child, the pauper, was in Augusta, and consequently it took its settlement in that city. Subsequently the mother married one not the child's father, whose pauper settlement, when the supplies were furnished in 1939 and 1940, was in the town of Mexico, which then, by reason of the marriage, became the settlement of the mother. The claim of the plaintiff is that under the law as amended the child's settlement followed that of its mother and so was in Mexico. The defendants, however, insist that in spite of the amendment it remained in Augusta, the mother's settlement at the time of the child's birth.

Thus we must decide whether the amendment of 1933 changed the existing law. We seek the intention of the legislature, for that is fundamental in the construction of statutes. Inhabitants of Guilford v. Monson, 134 Me. 261, 265, 185 A. 517.

The only change in the reading of the statute when amended was the deletion of the words “at the time of their birth.” It is said that this was simply a striking of surplusage without change of meaning. We do not think so. Before the amendment the pauper settlement taken by the child was only that of the mother at the time of birth. The statute fixed the time and place when and where it was taken and as taken it remained. The effect of omitting the words “at the time of their birth” was to remove the specific time when and place where the child first took its settlement and leave it so that it had the settlement of the mother at any and all times prior to its emancipation or acquisition of a settlement in its own right.

Thus by the amendment was established in this regard the same law for the illegitimate child with relation to the mother's pauper settlement that obtained for a legitimate child with relation to its father's settlement. As a legitimate child follows its father's pauper settlement, so under the amendment an illegitimate child would follow its mother's settlement. Giving the illegitimate child the pauper settlement of the mother not only at birth but later when and if changed would tend to prevent their separation when being relieved from distress and preserve intactness of the family. To prevent such separation and to accord the illegitimate child the same privilege that the legitimate had we think was the reason for the amendment.

Furthermore, it “recognizes the underlying principle that settlement of children should follow that of the parent who was responsible for their support.” Inhabitants of Guilford v. Monson, supra, 134 Me. on page 264, 185 A. on page 519. Following the marriage of this pauper's mother, the mother still had the duty to support her illegitimate child.

Omission of words in an amending statute appearing in the amended statute raises an inference that a change in the law was intended. Guilford & Sangerville Water District v. Sangerville Water Supply Co. et als., 130 Me. 217, 222, 154 A. 567, and cases therein cited. Also see Opinions of Justices, 46 Me. 567, on page 578. The Court must not assume that such omission was accidental and then by construction insert what may have been omitted by design. Union Ins. Co. v. Greenleaf, 64 Me. 123, 129. It belongs to the legislature to supply an accidental omission. Kelton v. Hill, 59 Me. 259, 261. We regard the omission of these words in the instant case intentional and for the purpose of changing the law for the benefit of illegitimate children, as above indicated.

Chap. 33, Sec. 3, R.S.1930, as amended by Chap. 113, P.L.1937, reads in part as follows:

“Settlements acquired under existing laws, remain until new ones are acquired or until lost under the provisions of this section. Former settlements are defeated by the acquisition of new ones.”

The defendants contend that the pauper herein never acquired a settlement in its own right and consequently that the settlement it derived from its mother at birth remained, although the mother's settlement changed.

But a settlement may be acquired derivatively as well as otherwise. The defendants construe the words “remain until new ones are acquired” as not embracing a settlement acquired by derivation. The statute does not so state. If that construction were accepted, then a legitimate child of a father having a derived pauper settlement in the state would continue to retain its settlement as taken at birth and not follow its father's settlement subsequently acquired by derivation. Such is not the law.

In the instant case there was no new settlement gained by the pauper itself as distinguished from a derivative settlement We are dealing only with two claimed derived settlements, the one at birth from its mother and the other derived later from its mother upon its mother's marriage. It is not a question of loss of the first derived settlement by reason of a later one acquired by the pauper in its own right, but whether the second alleged derived pauper settlement in the defendant town defeated the first derived settlement in the plaintiff town.

In Inhabitants of Albany v. Inhabitants of Norway, 107 Me. 174, 77 A. 713, the child pauper, a minor, was born in the plaintiff town. Its parents were divorced, and custody was decreed to the mother. At that time neither parent had a pauper settlement in this state, and the father did not subsequently acquire one. Following the divorce, the mother married again, and her second husband had a pauper settlement in the defendant town. They too were divorced and afterwards the mother, during the minority of the child, married her third husband, whose pauper settlement was in the plaintiff town. The pauper was a minor at the time the supplies were furnished and had not gained a settlement in its own right. The Court held that in spite of the statute now appearing in Chap. 33, Sec. 3, R.S.1930, as amended, relied upon by the defendants herein, the first derived settlement by the child from its mother followed the subsequently derived settlements of the mother, and so gave judgment for the defendants.

We hold that an illegitimate child when born not only has the then pauper settlement of the mother but, since the amendment of 1933, takes newly derived settlements of the mother as they come into existence until the child acquires another in its own right.

The defendants also contend that the amendment in 1933 had only prospective operation and so did not alter the status of settlements already existing at the time of its passage. But “Such is not the law.” Inhabitants of the Town of Mercer v. Inhabitants of the Town of Anson, Me., 36 A.2d 255; Inhabitants of the City of Hallowell v. Inhabitants of the City of Portland, 139 Me. 35, 26 A.2d 652.

In accordance with the stipulation, liability of the defendants having been established, this case is remanded to the Court below for entry of judgment for plaintiff in the amount of $152.46 and costs.

So ordered.

MURCHIE, Justice (dissenting).

I am unable to persuade myself, notwithstanding a real effort to do so induced by the fact that my associates are unanimous in the view, that the Legislature intended P.L.1933, Chap. 203, the third section of which is construed by them without reference to other changes made by the Act in our pauper law, to provide that an illegitimate child should follow a settlement of its mother derived by her through marriage. In my view the intention, as part of a general policy that the settlement of every member of a family should follow the family head, was that an illegitimate child should follow...