City of Enderlin v. Pontiac Township

• Decision Date: 23 March 1932
• Docket Number: 6029
• Citation: 242 N.W. 117,62 N.D. 105
• Court: North Dakota Supreme Court

242 N.W. 117

62 N.D. 105

CITY OF ENDERLIN, a Municipal Corporation, Respondent, v. PONTIAC TOWNSHIP, CASS COUNTY, a Public Corporation, Appellant

No. 6029

Supreme Court of North Dakota

March 23, 1932

Appeal from the District Court of Ransom County Hutchinson, J. Pontiac Township appeals from the judgment of the district court holding that one George Marks has a "residence" and "settlement" within Cass County and not within Ransom County.

Reversed and remanded.

Frank I. Temple, for appellant.

The likelihood that the pauper will become chargeable must be from one of the causes specified in the statute, and must depend on his condition at the time when the proceedings for removal are taken. 48 C.J. 494, § 141.

There can be only one residence and it cannot be lost till another is gained, and it cannot be changed, only by the union of act and intent, the statute itself says, when the residence is changed. Burke County v. Oakland, 56 N.D. 343, 217 N.W. 643.

Tim A. Francis and Charles S. Ego, for respondent.

It is error in the proceedings before a justice of the peace or on appeal before the court of common pleas, for the removal of a pauper, if the pauper be not summoned or present, but the pauper only can avail himself of such error, and not either of the principal parties. Shirley v. Lunenberg, 11 Mass. 379.

The word "settlement" in reference to paupers is technical, and is used exclusively in relation to the dispensing of public charity. When it is said that a person has a settlement in a particular town or county, the meaning is that such town or county is legally bound to support him in case of need. 48 C.J. 448.

"Settlement" is not synonymous with "domicile." Winana v Winans, 205 Mass. 388, 91 N.E. 394, 28 L.R.A.(N.S.) 992; 48 C.J. 448 (note).

The legislature has full power to fix the settlement of paupers and prescribe what shall constitute such settlement. 48 C.J 449.

Statutes generally prescribe conditions under which citizens and inhabitants removing from one place to another in the state may obtain settlement. 48 C.J. 452; Kost v. Sheridan County, 46 N.D. 75, 179 N.W. 703.

Christianson, Ch. J. Birdzell, Nuessle, Burr and Burke, JJ., concur.

OPINION

CHRISTIANSON

This appeal involves a controversy, under the laws relating to poor relief, as regards the "legal residence" of one George Marks and his family. The case originated in a justice's court in Ransom county upon a complaint of an overseer of the poor. The justice of the peace made an order for the removal of said George Marks and his family from the city of Enderlin in Ransom county to Pontiac township in Cass county. An appeal was taken to the district court from such order. In the notice of appeal it was stated that the appeal was taken "both on questions of law and fact and from the whole of said order" and that a new trial was demanded in the district court. The appellants further assigned and specified certain errors in the proceedings had in the justice's court which, for reasons later stated, we find it unnecessary to set forth at length. In the district court the case was submitted upon the following stipulated statement of facts:

"That prior to February 29th (28th) 1929, the said George Marks and Tina Marks, his wife, and their family resided in Shenford Township in the County of Ransom and State of North Dakota for more than twenty years and that all of their said children hereinbefore mentioned were born in Ransom County, North Dakota.

"That from February 29th (28th) 1929 to August 19, 1929, the said George Marks and his family lived and resided in the Town of Anselm in the County of Ransom and State of North Dakota.

"That on August 19th, 1929 the said George Marks and his said wife and family moved to Richland County where they lived and resided until November the 12th, 1929.

"That on or about the 12th day of November, A.D., 1929, the said George Marks, his wife and family moved to what is known as the John Hoffman place in Cass County, North Dakota, where they lived and resided until May 17th, 1930.

"That on or about the 17th day of May, A.D., 1930, the said George Marks and his said wife and family moved to Colburn Township in the County of Ransom and State of North Dakota, where they lived and resided until on or about the 21st day of October, A.D., 1930.

That on or about the 21st day of October, A.D., 1930, the said George Marks and his said wife and family moved to the Adolph Nustul place in Cass County where they lived and resided until on or about March 11th, 1931.

"That on or about the 11th day of March, A.D., 1931, the said George Marks and his said wife and family moved to the city of Enderlin in the County of Ransom and State of North Dakota, where they lived and resided until April 21st, 1931.

"That on or about the 21st day of April, A.D., 1931, the said George Marks and his said wife and family moved to what is known as the Kurtz place in Pontiac Township, Cass County, North Dakota, where they lived and resided until on or about August 15th, 1931.

"That on August 15th, 1931, the said George Marks, his said wife and family moved back to the City of Enderlin in Ransom County, North Dakota, where they lived and resided until August 19th, 1931.

"That on the 19th day of August, A.D., 1931, by an order of Fred Underwood, one of the Justices of the Peace of the City of Enderlin in the County of Ransom in the State of North Dakota, directed to one Christ Wold, Chief of Police of the City of Enderlin, in the County of Ransom and State of North Dakota, said George Marks, his wife and family were removed and conveyed to Pontiac Township in Cass County, North Dakota, by the said Christ Wold, Chief of Police of the City of Enderlin, Ransom County, North Dakota.

"That an appeal was taken from the order of the said Justice of the Peace by the above named Defendants and Appellants, Pontiac Township and Cass County, municipal corporations, on questions of law and fact and upon certain grounds of error set forth in such Notice of Appeal and which is filed herein and to which reference is hereby made.

"That during the month of February, 1931, the said George Marks, his wife and family received from Colburn Township in Ransom County, North Dakota, temporary aid and relief under the poor relief of Colburn Township in said Ransom County in the sum of Twelve Dollars ($ 12.00).

"That the foregoing facts are all of the facts and are stipulated to be the facts with regard to the residence of the said George Marks, his said wife and family."

Upon the facts as so stipulated the district court made conclusions of law "that the residence of the said George Marks, Tina Marks, his wife, and Ester Marks, Myrtle Marks, Pearl Marks and Wallace Marks, their children, for poor relief purposes is in Cass county, North Dakota," and ordered judgment, "that the Order of Fred Underwood, Justice of the Peace herein, removing said family, is in all things affirmed."

The proceedings in the justice's court, the appeal to, and proceedings had in, the district court, were had under the following sections of the Compiled Laws of North Dakota 1913:

Section 2515. "Upon complaint of any overseer of the poor, any justice of the peace may, by his warrant directed to and to be executed by any constable or by any other person therein designated, cause any poor person found in the township of such overseer likely to become a public charge, and having no legal residence therein, to be sent and conveyed at the expense of the county, to the place where such person belongs, if the same can be conveniently done; but if he or she cannot be so removed, such persons shall be relieved by such overseer whenever such relief is needed."

Section 2516. "If any overseer of the poor of any township in any county in North Dakota, to which any pauper shall have been removed, as above provided, shall feel himself aggrieved by such order of removal, he may at any time within twenty days after such removal shall be known to him, appeal from the decision of the justice of the peace ordering such removal, to the district court of the county from which the removal was ordered to be made; such appeal to be taken, tried and determined and costs adjudged as in other cases of appeals from judgment of the justice of the peace, and the order of removal may be vacated or affirmed according to law and the right of the cause."

Section 2517. "Such appeal shall be heard at the term of court next after the same is filed therein, if in the opinion of the court reasonable notice of the appeal has been given to the opposite party; but if not thus given, the cause shall stand continued until the next term of the court."

According to the provisions of the justice's code an appeal may be taken from a judgment of a justice of the peace on questions of law alone (Comp. Laws 1913, § 9164); or a general appeal may be taken for a review of all questions of law and fact (Comp. Laws 1913, § 9163). In the latter case it is provided: "The action shall be tried anew in the district court in the same manner as actions originally commenced therein. . . ." (Comp. Laws 1913, § 9172). In this case the appellants took a general appeal; they recited in the notice of appeal that the appeal was taken "both on questions of law and fact" and demanded a trial anew in the district court, and "that said matter and the whole thereof . . . be tried and determined in said District Court."

The appellants, having invoked the jurisdiction of the district court to hear and determine the controversy, cannot now be heard to say that that court should not have exercised the jurisdiction so invoked. Lyons v. Miller, 2 N.D. 1 48 N.W. 514; William Deering & Co. v. Venne, 7 N.D. 576, 75 N.W. 926; Mann...