State v. Ackerman

• Decision Date: 08 June 1893
• Citation: 55 N.J.L. 422,27 A. 807
• Parties: STATE (ACKERMAN, Prosecutor) v. ACKERMAN.
• Court: New Jersey Supreme Court

27 A. 807

55 N.J.L. 422

STATE (ACKERMAN, Prosecutor)

v. ACKERMAN.

Supreme Court of New Jersey.

June 8, 1893.

(Syllabus by the Court.)

Certiorari to court of quarter sessions, Union county.

Action by the state, at the relation of John M. Ackerman, against John W. Ackerman, to require defendant to support plaintiff, a poor person. To review the order granting the petition, defendant brings certiorari. Reversed.

Argued November term, 1892, before VAN SYCKEL and MAGIE, JJ.

P. H. Gilhooley, for prosecutor.

G. R. Lindsay, for defendant.

MAGIE, J. The proceedings brought into review by this writ were taken under the provisions of section 30 of the "Act for the settlement and relief of the poor," approved March 27, 1874, (Revision, p. 834.) The proceedings were commenced by the petition of John M. Ackerman, representing that he was poor and an inmate of the poorhouse of Woodridge township in Middlesex county; that he was old, and, by reason of age, unable to work; and that his only son, John W. Ackerman, resided in Union county, and was able to relieve his father's necessities, but refused to do so. The court allowed a rule to show cause, which was served upon John W. Ackerman, who appeared by counsel; and, after testimony taken by both parties, the order complained of was made.

It is first objected that the petition which initiated the proceedings was made, not by the overseer of the poor, but by the indigent person himself. The provisions of the poor act on which the proceedings were taken may be traced back in our legislation to section 17 of the "Act for the settlement and relief of the poor," passed March 11, 1774, (Patterson'3 Laws, 31.) That section re-enacted, with some modifications, the act 43 Eliz. c. 2, § 7, (3 Burn, J. F. 495.) These provisions were not designed to establish any personal or private right to relief and maintenance from the relatives named therein, but were intended for the indemnity of the public against the maintenance of paupers. 2 Kent, Comm. 191. By the statute of Elizabeth, and section 17 of the act in ratterson, the penalty designed to enforce an order for the relief and maintenance of an indigent relative within the degrees named was expressly declared to be for the use of the poor. Although the supplement of June 10, 1820, (Rev. Laws, 764,) in modifying the provision as to penalty, omits to expressly state that the penalty is to be appropriated to the use of the poor, I think there is a necessary implication to that effect from the language of section 3, and its position in an act for the relief of the poor. The like construction must be given to section 30 of the present poor act. The section does not, however, provide the manner in which the action of the quarter sessions shall be invoked. It may most properly be done by a complaint or petition of the overseer of the poor of the municipality liable to support the pauper. But the jurisdiction of the sessions does not depend upon the mode in which the facts essential to jurisdiction are presented. The court might decline to act if the application appeared not to be designed for the protection of the public. But, if it acts upon a petition showing jurisdiction, its action will not be invalidated because the petition was presented by the pauper.

It is next insisted that the proceedings are unsustainable because prosecutor was not brought into court by summons or other process, but only by a rule to show cause. The act does not expressly require the issue of process or giving of notice to the relative who may be effected by the order of the court. But an order made when it did not appear that the person charged had been summoned or notified, or was present or heard in respect thereto, was quashed. Kiser v. Frankfort, 3 N. J. Law, 5. Without doubt, the relative against whom the order is applied for must have reasonable notice,...