
    The People of the State of New York ex rel. Samuel T. Russell as Supervisor of the Town of German Flats, App’lt, v. The Board of Supervisors of the County of Herkimer, Resp’t.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed November, 1887.)
    
    1. Lunatics—Expense op supporting indigent lunatics in state asylums IS A TOWN CHARGE—LAWS 1874, CHAP. 446, TITLE 1, ART. 1 § 14.
    Four lunatics, who were in indigent circumstances, but not paupers, were admitted into the state asylum for lunatics at Ovid or Utica upon the certificates or orders of the county judge of Herkimer county made in proceedings duly instituted for that purpose, and after they had been duly adjudged to be such lunatics and in such indigent circumstances. Before being adjudged lunatics they resided in and had a legal settlement in the town of German Flats in said county. The distinction between town and county poor is maintained in said county, and there is a poor house within the county which is supported as required by law. Held, that under the provisions of Laws 1874, chapter 446, title 1, article 1, § 14, as amended, the expense of supporting such indigent lunatics was to be paid by the town of German Flats, where they had a legal settlement, and not by the county of Herkimer.
    2. Same—Effect of Laws 1874, chap. 446.
    The fact that these indigent lunatics, although they had a legal settlement in the town, had not previously become chargeable to it, did not absolve the town from the burden of their support. That the purpose of the statute of 1874 was to remove the distinction which had previously existed as to the support of indigent lunatics.
    
      German Flats is one of the towns of Herkimer county. Arma Conklin, William Regan, Mike McGuire and Hannah Dodge were residents of and had a legal settlement in that town. They were lunatics in indigent circumstances, but not paupers. The persons named were admitted into the state asylum for lunatics at Ovid or Utica upon the certificates or orders of the county judge of Herkimer county, macje in proceedings duly instituted for that purpose, and after they had been duly adjudged to be such lunatics and in such indigent circumstances.
    The respondent, at its annual session for the year 1885, decides and determines that the expense of supporting the lunatics named was properly chargeable to the town of German Flats, and added to the accounts which were to be levied upon the taxable property of that town the expense of their support.
    Similar action had been taken by the board of supervisors of that county for several years preceding the year 1885.
    The distinctions between the town and county poor are maintained in that county, and there is a poor house within the county, which is supported as required by law.
    The relator applied for and obtained an., alternative writ of mandamus to compel the respondent to charge the expense of supporting their lunatics upon the county of Herkimer, instead of the town of German Flats, or to show cause, etc. Issue was joined by the respondent’s return to such-writ.- The trial was had before the court without a jury. It resulted in a dismissal of the writ on the merits, with' costs against the relator. From the judgment entered upon that decision, the relator appeals.
    
      J. B. Rafter, for app’lt; E. A. Brown, for resp’t.
   Martin, J.

The single question presented, so far as the merits of this controversy are involved, is whether the expense of supporting indigent lunatics, not paupers, who are committed to the state asylums by a judge’s order, made under the provisions of section 14, article one, title 1, chapter 446, Laws of 1874, as amended, is to be paid by the town where they have a legal settlement," or whether it is to be paid by the county.

Prior to 1874, the statute provided, that if the judge certified that satisfactory proof had been adduced, showing the person’s insanity, and the insufficiency of his estate to support himself under the visitation of insanity, on the judge’s certificate, duly authenticated, such person was to be admitted into the asylum and supported there, at the expense of the county, until he should be restored to soundness of mind,- if effected in two years (Laws of 1842, chapter 135, § 26). While that statute remained in force, it was held by the supreme court the support of such indigent lunatic was a county charge, and that the county could not charge the expense thereof to the town where the lunatic resided. The People ex rel. v. Supervisors of Genesee, 7 Hill, 171.

_ This decision seems to have been based upon the provisions of the Laws of 1842, above quoted, which it was held expressly made the county liable, and that the town was not liable under another provision of that statute, because the lunatic was not by statute, chargeable to the town.

In 1874, an act to revise and consolidate the statutes of the state relating to the care and custody of the insane, was passed (Laws 1874, chapter 446). That section 14, article 1, title 1, chapter 446, Laws of 1874 was intended as a substitute for and an amendment of section 26, chapter 135, Laws of 1842 is manifest.

Section 14, as amended by chapter 164, Laws 1880, provides that when a person in indigent circumstancess, not a pauper, becomes insane, application may be made to the county judge, and he shall fully investigate the facts both as to the indigence and the insanity of the alleged lunatic. If the judge certifies that he is insane and indigent, it becomes his duty to cause a notice to be given to a superintendent of the poor of the county chargeable with the expense of supporting such persons in a state asylum, and then proceed to ascertain when such person became insane. The judge granting the order of indigence is required to file his papers and decision with the county clerk, and report the fact to the supervisors, “ whose duty it shall be, at their next annual meeting, to raise the money requisite to meet the expenses of support of such indigent lunatic.”

Section 16 of the same article contains the following provision: “The expense of sending any lunatic to a state asylum, and supporting him there, shall be defrayed by the county or town to which he may be chargeable.”

By section 31, title 3 of this act, which relates to the State Lunatic Asylum at Utica, it is provided “that the expense of clothing and maintaining in the asylum at Utica, a patient who has been received upon the order of any court or officer, shall be paid by the county from which he was sent to asylum. Said county shall, however, have the right to require any individual, town, city or county, that is legally liable for the support of said patient, to reimburse the amount of said bills, with interest, from the day of paying the same.”

The same provision is made in regard to patients sent to-the Willard asylum, for the insane located at Ovid. Section 6, title 4, chapter 446, Laws of 1874.

This examination of these statutes discloses (1) that the provision of the Laws of 1842, that a lunatic should be supported at the expense of the county was not re-enacted and hence in effect repealed, and (2) that the statute of 1874 expressly provides, that the expense of sending any lunatic to or supporting him at the state asylum shall be defrayed by the county or town to which he may be chargeable.

These changes in the statute have an important bearing upon the question under consideration. We think they indicate an intent to release the county from its absolute liability to support indigent lunatics not paupers, who are confined in the asylum of the state in counties where the distinction between town and county poor is maintained, to impose the burden of their support upon the town in which they have a legal settlement.

The relator, however, contends that the provision of section 14 requiring notice to be given to the Superintendent of the poor of the county chargeable with the expense of supporting such persons ” and making it the duty of the board of supervisors at their next annual meeting to raise the money requisite "to meet the expenses of the support of such indigent lunatics, ” furnish potent evidence that such was not the intent of the statute. But when we remember that by this statute all lunatics committed to the asylums are made chargeable to the county in the first instance and that the County may recover from any city, town, county or individual liable therefor much of the force of this contention is dispelled.

The provision relied upon can well be construed as relating to the relations between the county and the asylum and as not bearing upon the question whether the expense of support is in the end to be defrayed by the town or by the county.

The relation also claims that these indigent lunatics although they have a legal settlement in the town had not previously become chargeable to it, and hence the provisions of this statute do not apply.

To whom were they chargeable ? The county is absolved, and the expense of their support is be defrayed by the town of any to which they may be chargeable. Until insane they had been chargeable to neither town or county. When they became insane they became a public charge. They were to be supported at public expense. If other disease or misfortune had rendered them wholly or partially incapable of supporting themselves, the burden of their support must have fallen upon the town. They then would have become a charge upon the town. As the law now stands, we perceive no sufficient reason for a distinction between poverty caused by insanity and that caused by other disease or misfortune. We think it was not the intent of the law that such a distinction should be preserved, but that the purpose of the change in the statute of 1874 was to remove the distinction which had previously existed as to the support of indigent lunatics.

This construction seems to us to be in harmony not only with all the provisions of the statutes of 1874, but with the other statutes of the state relating to the care and support of the poor and indigent.

We are therefore of the opinion that the expense of the support of the lunatics named was properly charged to the town of German Flats, and that the case was properly disposed of by the trial judge.

The respondent contends that the decision of the trial judge can be sustained on these grounds; that the writ of mandamus was not the proper remedy, and cites many cases to sustain that contention. Having, however, concluded that the decision of the learned trial judge dismissing the writ on its merits was proper, it became unneces-. sary to examine the other questions raised on the argument.

The judgment herein should be affirmed, with costs against the relator and appellant.

Hardin, P. J., and Follett, J., concur.  