Rackliff v. Inhabitants of Greenbush

• Decision Date: 05 June 1899
• Citation: 93 Me. 99,44 A. 375
• Parties: RACKLIFF v. INHABITANTS OF GREENBUSH.
• Court: Maine Supreme Court

44 A. 375

93 Me. 99

RACKLIFF

v. INHABITANTS OF GREENBUSH.

Supreme Judicial Court of Maine.

June 5, 1899.

(Official.)

Report from supreme judicial court, Penobscot county.

Action by Charles E. Rackliff against the inhabitants of Greenbush. Judgment for plaintiff.

Argued before PETERS, C. J., and EMERY, HASKELL, WHITEHOUSE, STROUT, and FOGLER, JJ.

Clarence Scott and Hugo Clark, for plaintiff.

F. H. Appleton and H. R. Chaplin, for defendant.

FOGLER, J. Pub. Laws 1887, c. 33, § 1, provides that whenever any person who served in the army, navy, or marine corps of the United States during the Rebellion, and was honorably discharged therefrom, shall die, being at the time of his death a resident of this state, and being in destitute circumstances, the state shall pay the necessary expenses of his burial, not exceeding $35, and the burial shall be in some cemetery not used exclusively for the burial of pauper dead. Section 2 of the same chapter provides that the municipal officers of cities and towns in which such deceased has his residence at the time of his death shall pay the expenses of his burial, and, upon satisfactory proof by such town or city to the governor and council of the fact of such death and payment, the governor shall authorize the state treasurer to refund said city or town the amount so paid.

Andrew Oakes, who, it is admitted, served in the army of the United States during the Rebellion, and was honorably discharged therefrom, died on the 30th day of November, 1890, in Greenbush, in which town he had his residence at the time of his death. The testimony proves that he died in destitute circumstances. He had been a sick man and unable to perform labor for several years. His only property was a parcel of real estate which was mortgaged to its full value, or more, to secure the payment of his attending physician. The plaintiff, an undertaker residing in Old Town, furnished, at the request of one John C. Hinckley, a brother-in-law of Oakes, for the burial of Oakes, a casket, the price of which was $22, and a robe, the price of which was $2. At the time of ordering the casket and robe, Hinckley informed the plaintiff that "the state allowed thirty-five dollars for burial money, and it came through the town; the town paid it, and drawed it back." Oakes was buried in the casket and robe in a general burying ground in the town of Greenbush. When the casket and robe were delivered, the plaintiff gave Hinckley a bill of them, and subsequently Hinckley presented the bill to the municipal officers of the town of Greenbush, who refused payment, saying, "Why didn't you come and tell us that he was dead, so we could go and bury him?" and, further, that they did not know that the state furnished any money to pay it, and they were not going to pay it out of their own pockets. The plaintiff brings this suit to recover payment for the casket and robe. Is the action maintainable? We think it is.

It is true, as a general rule, that no man can make himself, by his own act, a creditor of a town. The rule obtains in all cases where the statute imposes upon the officers of a town the performance of some duty,—the doing of some act,—as in cases of furnishing pauper supplies, of pauper burials, the repair of highways, or in case of contagious diseases, etc. In such cases no person, other than the proper officers of the town, can perform such duties or do such acts at the expense of the town. Thus, a town is required by law to furnish relief, through its overseers of the poor, to any person found within its limits destitute and in need of relief; but, in the absence of any statute authorizing it, no other person can furnish relief, however urgent the necessity may be, on the credit and at the expense of the town. But in the case at bar the statute does not require or authorize either the town or its officers to take charge of or provide a burial for the deceased soldier, nor is it required that the expenses of the burial shall be authorized by the municipal officers, or by any officer representing either the town or the state. The state undertakes, through the instrumentality of the town, to "pay" the burial expenses of the soldier. The municipal officers are required to perform no duty, to do no act in the matter of the burial, but are simply required to "pay" the burial expenses; and the state, "upon satisfactory proof by such town or city * * * of the fact of such death and payment," undertakes to refund said town or city the amount so paid. The obvious intention of the statute is that the town shall pay the expenses of burial to whomsoever shall incur them. The case is somewhat analogous to the payment of the expenses of the burial of any deceased person by any proper person, in which this court has held that such expenses, so incurred, are a proper charge against the estate of the deceased, though no one is authorized to bind the estate. Phillips v. Phillips, 87 Me. 324, 32 Atl. 963; Fogg v. Holbrook, 88 Me. 169, 33 Atl. 792.

In the case last cited the court says: "The services must be rendered. It is better that those things should be done upon the credit of the estate than that there should be hesitation and inquiry as to who is liable to pay."

This construction of the act is in accord with the manifest intention of the legislature, which was that no honorably discharged soldier who had served his country during the war of the Rebellion should, at...