Town of Glover v. Anderson

• Decision Date: 03 September 1957
• Docket Number: No. 1853,1853
• Citation: 134 A.2d 612,120 Vt. 153
• Court: Vermont Supreme Court
• Parties: TOWN OF GLOVER v. David V. ANDERSON, Auditor of Accounts.

Page 612

134 A.2d 612

120 Vt. 153

TOWN OF GLOVER v. David V. ANDERSON, Auditor of Accounts.

No. 1853.

Supreme Court of Vermont.

Sept. 3, 1957.

Lee E. Emerson, Barton, for plaintiff.

Frederick M. Reed, Atty. Gen., and Stephen B. Richardson, Deputy Atty. Gen., for defendant.

Before CLEARY, ADAMS, HULBURD and HOLDEN, JJ., and SYLVESTER, Superior judge.

ADAMS, Justice.

This is a petition for a writ of mandamus to compel the petitionee as Auditor of Accounts to issue his warrant to reimburse the petitioner, the Town of Glover, for $565 expended for the care and support of Walter Place, an alleged non-settled poor person.

The parties have filed a stipulation of agreed facts in substance, as follows: Walter Place was born in Holland, Vermont, April 30, 1908. He is a person of sub-normal mentality, of the mental age of approximately eight years, a moron and incapable of establishing a settlement in his own right. He resided with his mother in the town of Glover from 1916 to the date of her death on May 1, 1953 and her residence and pauper settlement was in that town. After the death of his mother, Place was placed under guardianship and from that date until August 5, 1956, there were sufficient funds in the guardianship estate to provide for his care and support. Since that date the town of Glover has been required to provide for his care and support. On October 26, 1956, by a notice that was in proper form and timely, said town notified the Auditor of Accounts and the Commissioner of Institutions that it would seek reimbursement from the state of Vermont for aid furnished Place. November 15, 1956, on a form provided by the state, a claim for reimbursement for $260 was made. On March 21, 1957, the date of the petition herein, the town had expended $565 in providing for the care and support of Place. The petitionee, as Auditor of Accounts, disallowed the claim upon the ground that Place was not a nonsettled person for whose care the state is ultimately responsible because he has a pauper settlement in the town of Glover.

The petitionee filed a motion to quash and an answer. We are not required to consider the answer because of the agreed statement of facts. The motion to quash is based upon two grounds: (1) That the obligation of the state to reimburse the petitioner is not clearly established by law, depending upon the interpretation of the statutes as to whether or not Place may or may not have a settlement in the town of Glover, so the consequent duty of the petitionee is not clear and the writ will issue only when the petitioner has a clear legal right to the performance of the particular duty and when it appears that the law affords no other remedy. (2) That the petitioner has a full, adequate and complete remedy by way of declaratory relief and such relief is a bar to mandamus action.

It is fundamental that in order to justify the issuance of a writ of mandamus, it must appear that the petitioner has a clear legal right to the performance of the particular duty at the hands of the petitionee and that the law affords no other adequate remedy. Matter of Savage, 112 Vt. 89, 92, 22 A.2d 153, and cases cited.

Mandamus lies in a proper case to enforce the performance of a ministerial act by a public official. Gaffney v. Commissioners of Jail Delivery, 111 Vt. 196, 200, 13 A.2d 192. If the duty is one that necessarily involves an inquiry of fact and an exercise of judgment on the case presented, it is not considered ministerial but discretionary and the disposition of it made by the official will be binding upon the courts. Proctor v. Hufnail, 111 Vt. 365, 369, 16 A.2d 518. A decision that rests solely upon the construction of a statute does not involve that exercise of judgment which the law contemplates. State v. Howard, 83 Vt. 6, 14, 74 A. 392. See Peck v. Powell, 62 Vt. 296, 19 A. 227; Fay v. Barber, 72 Vt. 55, 47 A. 180; Carpenter's Adm'r v. Brown, 118 Vt. 148, 102 A.2d 331.

This points up the question involved here. Did or did not Walter Place, under the pertinent statutes, have a pauper settlement in the town of Glover in 1956?

Under our former pauper law unemancipated minors living with and supported by their parents did not acquire a pauper residence in their own right. They were deemed incapable of exercising any choice or volition of their own. Marshfield v. Tunbridge, 62 Vt. 455, 457, 20 A. 106. For the same reason it was held that a person who is mentally defective is incapable of any choice or intention as to residence and while living with his parents did not acquire a residence in his own right. Upon the death of the father, who was the head of the family, the mentally incompetent son who was living in the family had no pauper settlement, there being no such thing as a derivative residence. Fairfax v. Westford, 67 Vt. 390, 392, 393, 31 A. 847. The matter of impaired intellect was also recognized in Westmore v. Sheffield, 56 Vt. 239, 244; Town of Topsham v. Chelsea, 60 Vt. 219, 222-223, 13 A. 861; Rowell v. Vershire, 62 Vt. 405, 409, 19 A. 990, 8 L.R.A. 708; Town of Danville v. Hartford, 73 Vt. 300, 50 A. 1082.

There being no such thing as a derivative settlement, a married woman, who was not considered sui juris, could not acquire a settlement in her own right. Upon the decease of her husband she did not, therefore, take the settlement that he had while they were living together. Town of Jericho v. Morristown, 77 Vt. 367, 369-370, 60 A. 233, decided in 1906. The legislature at its next session by No. 102 of the Acts of 1906 provided that a married woman lives with her husband in a town where he last resided for three years supporting himself and family shall be deemed to have gained a pauper residence in such town. This statute with some modifications and additions is now V.S.1947, § 7099 and a part of Chapter 303.

In Town of St. Johnsbury v. Sutton, 102 Vt. 451, 150 A. 133, this Court had before it the pauper settlement of four children by a first marriage when the father had died and the mother had remarried. It was there held, 102 Vt. at page 455, 150 A. 133, that the children did not retain their father's residence, citing Fairfax v. Westford, supra, 67 Ct. 390, 31 A. 847. It was also held that No. 102 of the Acts of 1906 related to the residence of the wife only and had no effect upon that of the children.

The petitionee concedes in his brief that Place, the pauer in the instant case, according to the holding in Fairfax v. Westford, supra, would have had no pauper settlement in the town of Glover upon the death of his mother in 1953. He says, however, that in 1947, there was a material revision of the statutes in regard to the settlement of minors. He refers us to No. 202 of the Acts of 1947 by which, what are now V.S.1947, §§ 7100, 7101 and 7104, upon which he relies, were enacted. These sections so far as material here provide: § 7100; 'The settlement of a minor child born in wedlock shall be that of his parents or surviving parent * * *.' § 7101; 'In the event of the death of the parent having the custody of such minor child, the settlement of such minor shall be that of the surviving parent. In case both parents die * * * the settlement of such minor at the time of such death * * * shall continue until his majority or until he shall gain a separate settlement as provided in section 7103.' § 7104; 'A minor upon reaching his majority shall continue to have the settlement he acquired as a minor * * * or until he gains a separate settlement.' Then follows a provision in this section about the settlement of one enlisting or inducted into the military service.

The petitionee claims that by these statutory changes in the law in 1947, it is clear that it was the intent of the legislative to give to minors a settlement which continues until they acquire a separate settlement in their own right. We agree with him as to that premise. He says that because of these statutory changes, although Place reached his majority in 1929, that because he was a mentally defective and unable to gain a separate settlement, the settlement that he gained as a minor prior to 1929 continued indefinitely and was not lost when his mother died. In other words he says that, although Place became of age in 1929, he was still considered a minor because he was a mental defective and, therefore, unable to gain a settlement in his own right. We do not agree.

It should be noted here that section 7102 provides for the settlement of a minor born out of wedlock and section 7103 provides how a minor may gain a separate settlement. These five sections are all a part of chapter 303 pertaining to the relief of the poor.

Sections 7100-7104, inclusive, refer to minors only except that part of section 7104 referring to persons entering the military service by reason of enlistment or induction. If the mother had died subsequent to 1929, when Place became of age and prior to 1947 when the foregoing sections became effective, his settlement with his mother would have been at an end as conceded by the petitionee. His settlement acquired from his mother continued after 1929, not because he was a minor but because he was a mental defective. The sections of the statutes that became effective in 1947,...