Overseer of Bridgewater v. Overseer of Bethlehem

14 A. 765, 50 N.J.L. 578, 1888 N.J. Sup. Ct. LEXIS 66

• Court: Supreme Court of New Jersey
• Decided: June 15, 1888
• Status: Published

Opinion

The opinion of the court was delivered by

Reed, J.

Th.e proceedings for the removal of a poor person are statutory, and must be pursued in strict conformity with the terms of the statute. Princeton v. South Brunswick, 3 Zab. 169; New Barbadoes v. Paterson, 3 Dutcher 544; McCoy v. Newton, 8 Vroom 133.

In the act for the settlement and relief of the poor there are two methods by which an order of removal can be brought •about. One is contained in section 17. Rev., p. 839. The other method is found in section 31 of the act (Rev., p. 843),. as amended by the act of 1880. Rev. Sup., p. 800.

The first is taken before two justices of the peace; the-second may be had before a single justice.

The jurisdictional fact upon which the first proceeding rests is, that an overseer shall have reason to believe that a person who has not obtained a legal settlement in the township is chargeable, or likely to become chargeable, thereto, and applies to two justices of the peace, and informs them thereof. Rev.f p. 839, § 17.'

The jurisdictional fact upon which the second proceeding derives its vitality is, that an application for relief shall be made to an overseer by or for a poor person. Princeton v. South Brunswick, 3 Zab. 169.

In the present case, an application was made by a poor person to an overseer, but the overseer, instead of proceeding, under the amended 'thirty-first section, before a single justice, took a proceeding before two justices. In this course of action there was an absence of the condition upon the existence of which only can an application be made to two justices.

The counsel for the defendants, however, insists that the-test to be applied in determining whether the proceedings shall be before a single justice of the peace, or before two justices, is whether the facts proven are such that it appears proper to make an order for a removal to the place where the poor person has last resided for twelve months continuously.

The force of this contention will be plain, when it is understood that section 17 of the Poor act, which, as already remarked, provides for a proceeding before two justices, contains the provision that if, in the examination, it appears that the poor person has no legal settlement, he may be removed to-his place of last twelve months’ continuous residence.

It also appears that there is no similar provision elsewhere in the statute, so that it is only when a proceeding is taken before two justices that a removal can be made to this place of twelve months’ continuous residence. From this peculiarity Of the act the counsel for the defendant draws the conclusion, "that, if it be shown that an order of the last kind can be made, then it must follow that two justices have jurisdiction to make the order.

But it is apparent that, Avhile it is requisite that the order ■shall be made by two justices, if made at all, yet that the jurisdiction of two justices to sit together, and make an order of ■any kind, rests entirely upon other ground.

The organization of the special tribunal precedes the period when the above stated condition of affairs, which justifies such ■an order, is ascertained to exist. The constitution of the tribunal, Avhether of one or two justices, is dependent, as already remarked, upon the fact whether the action of the overseer was with or without the previous application of the poor person.

There is, of course, no reason why the power to make an •order to the place of twelve months’ continuous residence ■should not be exercised in all cases; nor is there any reason why there should be two proceedings, one taken before a single ■and the other before two justices, but the statute, as it stands, is framed otherwise, and we are constrained, as already observed, to follow its provision strictly.

As the statutory facts to justify an application to two justices did not exist in the present case, the order made by them ■must be reversed.