Inhabitants of Whately v. Inhabitants of Hatfield

• Decision Date: 15 October 1907
• Citation: 196 Mass. 393,82 N.E. 48
• Parties: INHABITANTS OF WHATELY v. INHABITANTS OF HATFIELD.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

196 Mass. 393

82 N.E. 48

INHABITANTS OF WHATELY v. INHABITANTS OF HATFIELD.

Supreme Judicial Court of Massachusetts, Franklin.

October 15, 1907

Oct 15, 1907.

COUNSEL

Samuel

D. Conant, for plaintiff.

John B O'Donnell, for defendant.

OPINION

BRALEY J.

The amount disbursed by the plaintiff for the relief as paupers of the wife and children of John Wagner cannot be recovered from the defendant if he previously had gained a settlement in Whately. Rev. Laws, c. 81, § 1; Id. c. 80, § 1 cls. 1, 2. In the agreed facts his domicile of origin is not stated, but he is shown to have removed with his family from Hatfield to the plaintiff town in March, 1896, where he continued to reside until October, 1902, unless his absence therefrom for four months in 1897 under a sentence to the house of correction is to be treated as an interruption. But for this term of imprisonment, having been assessed, and paid a poll tax for three years, although the assessments were not consecutive, under Pub. St. c. 83, § 1, cl. 5, then in force, he gained a settlement. Taunton v. Wareham, 153 Mass. 192, 26 N.E. 451. It often has been decided in the construction of our statutes relating to the settlement of paupers, and of taxation, that residence for either purpose includes something more than mere physical presence. There must be on the part of the pauper, and of the taxpayer, the settled intention of choosing his place of residence with the object of making it his home. Borland v. Boston, 132 Mass. 89, 42 Am. Rep. 424; Lyman v. Fiske, 17 Pick. 231, 234, 28 Am. Dec. 293; Stoughton v. Cambridge, 165 Mass. 251, 43 N.E. 106; Phillips v. Boston, 183 Mass. 314, 316, 67 N.E. 250. It is settled for these purposes that no man shall be regarded as without a domicile either of birth or of choice, and when an acquired status is once established the presumption of its continuance follows until a contrary purpose is manifested by an actual change of residence with the intention of remaining permenently at the place of removal. Jennison v. Hapgood, 10 Pick. 77; Chicopee v. Whately, 6 Allen, 508; Shaw v. Shaw, 98 Mass. 158, 160; Hallet v. Bassett, 100 Mass. 167, 710. A change of this nature being voluntary involves the exercise of the power of choice, and for this reason adults mentally incapable have been held unable to acquire a settlement for themselves. Phillips v. Boston, ubi supra, and cases cited. There is no statement that during the time of his absence it was the intention of Wagner to change his place of abode nor are any facts recited from which as matter of law such an inference can be drawn. See Brooks v. West Springfield, 193 Mass. 190, 79 N.E. 337. The house of correction was not his residence but his place of punishment and his temporary detention in prison in another town of the county being compulsory did not of itself work any change of domicile. Collester v. Hailey, 6 Gray, 517; Langdon v. Dowd, 6 Allen, 423, 83 Am. Dec. 641; Hallet v. Bassett, 100 Mass. 167; Mooar v. Harvey, 128 Mass. 219; Cobb v. Rice, 130 Mass. 231, 235; Freeport v. Stephenson County, 41 Ill. 495; Grant v. Dalliber, 11 Conn. 234, 238; Topsham v. Lewiston, 74 Me. 237, 43 Am. Rep. 584; Young v. Pollak, 85 Ala. 439, 5 So. 279; Barton v. Barton, 74 Ga. 761.

We are not unmindful that in the cases of Reading v Westport, 19 Conn. 561, and Washington v. Kent, 38 Conn. 249, a different conclusion was reached, but the earlier case of Grant v. Dalliber, ubi supra, seems to us not only more in harmony with our own decisions on the question of domicile, but on the exact point presented is in accord with the cases previously cited from other jurisdictions. If, however, his legal settlement remained, the plaintiff further contends that its acquisition was interrupted because while a prisoner Wagner having been unable to pay for his support must be considered as a pauper. East Sudbury v. Sudbury, 12 Pick. 1; East Sudbury v. Waltham, 13 Mass. 460; Worcester v. Auburn, 4 Allen, 574; Taunton v. Wareham, 153 Mass. 192, 26 N.E. 451. See St. 1874, p. 188, c. 274, § 4; St. 1878, p. 139, c. 190, § 1, cl. 6; St. 1879, p. 570, c. 242, § 1; Pub. St. c. 83, § 2; Rev. Laws, c. 80, § 2. But upon his conviction and sentence to imprisonment for larceny, under Pub. St. c. 203, § 20, he must be classified as a criminal whose support during confinement was first to be borne by the county, as provided in Pub. St. c. 220, §§ 53, 54. The right conferred upon the county commissioners by Pub. St. c. 220, §§ 60, 61, re-enacted in Rev. Laws, c. 224, §§ 34, 35, to recover from him any excess that remained due for maintenance ...