Merrimack County v. Town of Derry

• Decision Date: 31 May 1966
• Citation: 219 A.2d 703,107 N.H. 212
• Parties: COUNTY OF MERRIMACK v. TOWN OF DERRY.
• Court: New Hampshire Supreme Court

Page 703

219 A.2d 703

107 N.H. 212

COUNTY OF MERRIMACK v. TOWN OF DERRY.

Supreme Court of New Hampshire.

Argued Feb. 1, 1966.

Decided May 31, 1966.

George H. Grinnell, Derry, by brief and orally, for the Town of Derry.

LAMPRON, Justice.

There is no obligation at common law upon the state or any of the instrumentalities of government to furnish relief to the poor. Manchester v. Hillsborough, 100 N.H. 79, 81, 119 A.2d 333; Town of St. Johnsbury v. Town of Granby, 124 Vt. 367, 369, 205 A.2d 422, 41 Am.Jur., Poor and Poor Laws, s. 35, p. 707. The whole matter is purely statutory and 'where the statute imposes no liability, there is none.' City of Worcester v. Town of Charlton, 336 Mass. 525, 146 N.E.2d 675. However '(p)rovision for relief and support at public expense of persons unable to support themselves has long been a part of our statutory law.' Wolfeboro v. Milton, 103 N.H. 174, 175, 167 A.2d 435. 'The ultimate burden of such relief has consistenly been placed upon the town where the person aided had his settlement.' Id.; RSA 165:20.

RSA 165:21 provides however that 'No action shall be sustained against any town or person (for recovery of expense) unless a notice in writing, signed by the overseers of public welfare, stating the sums so expended, shall first have been given to such town or person'. Such notice must be served upon the town 'by the sheriff or his deputy' (RSA 165:22) and '(s)uch notice shall be sufficient for all sums so expended within ninety days previous to such service, and for any sum so expended within one year thereafter'. RSA 165:24.

These provisions as to notice are for the benefit of those towns who might be sued for the recovery of expenditures made by another town or county for paupers whose settlement is in the town against whom recovery is sought. They can therefore be waived by those for whose benefit they were enacted. Lyman v. Littleton, 50 N.H. 42, 44; Inhabitants of Town of Amity v. Inhabitants, etc., 153 Me. 29, 36-38, 134 A.2d 365; 70 C.J.S. Paupers § 68, p. 146.

The Trial Court has found that on May 27, 1957 the County of Merrimack began to furnish aid to the Walter Come, Jr. family. As a result of an investigation, Merrimack, on June 3, 1957, made a demand upon the Town of Derry alleging that the family settlement was in Derry, demand having also been made on the County of Rockingham. Thereafter up until March 31, 1959, the plaintiff wrote letters from time to time to Derry and Rockingham claiming that they were liable for the aid payments made to this family on dates and in amounts specified, and demanding reimbursement. Derry by letter dated July 2, 1957 refused to accept responsibility for this aid given to the Come family because of lack of a Derry settlement. The Town reiterated this position in several subsequent letters between the parties as well as orally.

The Trial Court found that Derry never received any notice in accordance with RSA 165:20, 165:21, but has been kept completely informed as to the amount of aid which has been given by Merrimack from the time aid was begun. 'The Court specifically finds that there never has been a formal waiver of the statutory requirement by the Town of Derry, but further finds that such statutory notice would not have given the Town of Derry and more information with reference to the aid furnished than they are now in possession of and were in possession of prior to the bringing of the suit by the County of Merrimack'. 'At no time prior to the bringing of suit did the Town of Derry through its Overseer of the Poor and Selectmen raise an objection to the fact that the Town of Derry had never received the statutory notice required by law'.

A purpose...