
    SUPERVISORS OF ONONDAGA COUNTY v. MORGAN.
    September, 1865.
    Under L. 1843, 149, c. 135, § 33, the committee of an insane convict, provided they have received sufficient funds, may be compelled to bear the expenses of his maintenance, clothing, &c., while in the State lunatic asylum.
    An action to recover back such expenses may be maintained against the committee, by the county from which he was sent, and which has advanced the money for his support.
    A person convicted of murder, before sentence was passed, was found to be insane, discharged from imprisonment, and sent to the State lunatic ■ asylum; his expenses there were paid by the treasurer of the county from which he was sent. Held, that the supervisors of the county could recover from the committee of the criminal’s estate the amount so advanced, it being proved that such committee held property of the criminal more than sufficient for the purpose.
    The plaintiffs sued Leroy Morgan and others, committee of Alfred Tyler, a lunatic, in the supreme court, for money paid by the treasurer of the county for the clothing and maintenance of the lunatic while an inmate of the State lunatic asylum.
    The complaint alleged that Tyler was tried and convicted at the oyer and terminer, in 1855, of murder. In May, while yet in prison and before sentence, the county judge, pursuant to the State lunatic asylum act, examined his mental condition and having ascertained him to be insane, ordered him discharged from imprisonment and to be put in the State asylum at Utica until restored to his right mind, on which event the superintendent of the asylum was to inform the judge, county clerk and district attorney, so that he might be remanded.
    That Tyler was accordingly confined in the asylum, and the county treasurer had paid the asylum treasurer the expenses plaintiff now sought to recover. It was also alleged that defendants had been duly appointed committee of Tyler’s estate, and as such had property more than sufficient to reimburse the county; also, that the court had given leave to sue.
    
      Defendants demurred, and relied upon the general provisions of law by which expense of maintaining prisoners in jail for criminal offenses, whether before or.after conviction, is a county charge.
    Plaintiffs insisted that Tyler when in the asylum was no longer “in prison” within the law, but that his estate was liable for his support, upon a fair construction of the State' asylum act. The provisions of the statutes are fully stated in the opinions.
    
      The supreme court at general term held that the right of the plaintiff to recbver was to be decided entirely upon the construction of the act (L. 1843, c. 135) under which the -lunatic was sent to the asylum, and that no aid could be derived by » reference to other acts since. There were no other acts in pari materia, because the act creating the State lunatic asylum was designed to create a system. complete in itself. That the intentof the legislature, as shown by sections 31, 33 and 36 of that act (the whole of the last clause of section 31, with its qualifications and modifications, being by reference incorporated into sections 33. and 33) was that the support of a patient at the State lunatic asylum should be charged, 1, upon the estate of the patient; 3, upon his relatives who who would be liable for his support under other circumstances; 3, upon the town or county that would otherwise be liable. That, therefore, the action was well brought.
    Defendants appealed.
    
      Morgan & Middleton, for defendants, appellants.
    
      N. B. Smith,-for plaintiffs, respondents.-
   Dentó, Oh. J.

[After stating the pleadings above.]—The

defendant’s counsel relies, in support of the demurrer, upon the general provisions of law by which the expense of maintaining prisoners in jail for criminal offenses, whether before trial or after conviction, is a. charge upon the county. The plaintiffs, on the other hand, insist that Tyler after his removal to the asylum was no longer in prison within, the meaning of these provisions, but that his estate, in the hands of his com-, mittee, is liable for his support, according to the effect and fair meaning of the statute to organize the State asylum.

Section 31 of the act (L. 1842, c. 135) declares that persons who have escaped indictment or been acquitted of criminal charges on trial, on the ground of insanity, shall, after careful inqury by the court and the ascertainment of the fact, be ordered into safe custody and be sent to the asylum. It further provides that the county from which such a person is sent shall defray all his expenses while there, and of sending him back, if returned, and concludes as follows: “ But the county may recover the amount so paid from his own estate, if he have any, or from any relative, town, city or county that would have been bound to provide for and maintain him elsewhere.” The next section (section 32) declares that if any person in confinement under certain circumstances mentioned, including those “under a criminal charge ... or under any other than civil process,” shall appear to be insane, the first judge of the county shall institute a careful investigation, aided by the testimony of physicians and others; and that if, after an invitation to the district attorney, and by a jury if thought necessary, he be sasisfactorily proved to be insane, the judge is to discharge him from imprisonment “ and order his safe custody and removal to the asylum, where he shall remain until restored to his right mind; ” when, if the judge has so directed, information is to be given by the superintendent to the judge, the county clerk and the district attorney, so that he may be remanded to prison, and criminal proceedings may be resumed or he be discharged.

The section concludes as follows: “ The provisions of the last preceding section requiring the county to defray the expenses of a patient sent to the. asylum, shall be equally applicable to similar expenses arising under this section and the one next following.” Section 33, which is next in order, contains a similar provision as to persons imprisoned on civil process, attachment, or for non-payment of militia fine, and who shall become insane. A similar inquiry is to be made, and if insanity is found, the person is to be discharged from imprisonment and ordered into safe custody and sent to the asylum ; “ nevertheless,” it is added, “ the creditor may renew his process, and arrest again his debtor* when of sound mind.” ■

It is conceded that the estate of the insane person is liable for his maintenance at the asylum in cases within section 31 such being the express language of the law; but it is argued that the words of reference in section 32, which embrace the case of Tyler, only incorporate the portion of the provisions which charge the county with the expenses, and not the part providing for a reimbursement from the estate, &c., of the person supported. The language is not perfectly explicit, and .a verbal interpretation may support the defendant’s-position. But I am of the opinion that the intention was to incorporate the whole of the provisions respecting the expenses at the ■asylum contained in section 31 into section 32, as well that one which furnishes the indemnity, as that which charges the county. The word provisions is put in a plural form, though the language imposing the charge in the first instance on the county is a single provision. In a general way it may be said that “the provisions of the last preceding section, requiring the county to defray the expenses of a patient sent to the asylum,” are those which require the county to advance the, amount in the first instance, and to be indemnified for the advance out of the estate of 'the patient, if he have any, and from the other sources indicated if he have none. The circumstance that the cases embraced in section 33 are placed in the same category with those in section 33, adds force, to this •construction. These are cases of imprisonment in civil suits, where the public were never bound to support the person imprisoned, even when in jail. It would be strange if he should be required to be maintained at the public expense in an asylum when he happened to become insane, though he had property to maintain himself.

This construction is further supported by section, 3G> which' is a general provision, embracing the expenses of- every insane - ■person supported in the asylum, without regard to the manner in which he was sent there, declaring that such person shall be ¡personally liable for these expenses. In terms it completely ■.covers the case of Tyler. If it can be taken out of that provision, it must be on.the ground that there is something in the fact that he had been an offender against the laws before he became insane, which should exempt his property from the burden of his support. But surely we cannot impute any such policy to the legislature.

The case of People v. Supervisors of Genesee, 7 Hill, 171, has no application to this case. That was an attempt to charge a town in Genesee county with money paid by that county for the support of a person sent to the asylum; but as that person was not a pauper but a person in indigent circumstances only, it was held that the town was not liable for her support under any other circumstances, and as the act relating to the asylum did not give the county a remedy against the town in such cases, the proceeding by the county to pharge the town was not sustained.

I am in favor of affirming the j udgment.

Potter, J.

In 1842 an ac of the legislature was passed

entitled “An act to organize the State lunatic asylum, and more effectually to provide for the care, maintenance and recovery of the insane.” L. 1842, c. 135. This act, containing fifty-one sections, provided a general system in regard to all the insane to be cared and provided for at the State institution At the time of the passage of this act, there was in force, by virtue of title three, chapter twenty, part one of the Revised Statutes (1 B. S. G34), an act entitled “Of the safe keeping and care of lunatics,” containing certain other provisions in regard to that class of persons, There was also in force at the same time, by virtue of article ten, title two, chapter five, part two of the Revised Statutes (2 B. 8. 52), an act entitled, “ Of the custody and disposition of the estates of idiots, lunatics, persons of unsound mind and drunkards,” containing certain other provisions in regard to the same class of persons. These three statutes above referred to contain substantially all the statute provisions on the subject of lunatics, and all that are necessary to refer to in the examination of this case, except that such prior statutes also refer to the statutes in relation to the support of the poor, for the remedies and manner of enforcing their provisions, and to which last mentioned statutes, therefore, it may also be necessary to refer in this review. The act of 1842, in some of its sections, plainly refers to such existing laws; they are all, therefore, to be regarded as being “inpari materia.” In this respect I differ from the opinion of the Supreme Court.

[The learned judge here recapitulated the allegations of the complaint and continued:] The question of liability at law is the only one in the case. If the liability exists it is doubtless created by statute. To determine this question several sections of the statute of 1842, upon which this liability depends, must be read in connection with each other, and with other statutes to which they refer.

Section 31 of the act of 1842 provides for the case of lunatics who have escaped or been acquitted of a criminal charge on the ground of insanity. The court certify such cases to the asylum, and the county from which he is sent is made chargeable with the expense, to which there is a provision added, that “the county may recover the amount so paid from his own estate, if he have any, or from any relative, town, city, or county that weuld have leen lound to provide for and maintain him elsewhere.” The reference here to the relative town, city or county that would have been bound to provide for and maintain him, it is clear, is a reference to the provisions of the Revised Statutes, to which we have above referred, in relation to the safe keeping and care of lunatics (1 R. 8. G34 [marg. p.] § 2), which is as follows:

“ Section 2. If such person is not possessed of sufficient property to maintain himself, it shall be the duty of the father and mother, and the children of such person,being of sufficient ability, to provide a suitable place for his confinement, and to confine him in such manner as shall be approved by the overseers of the poor of the city or town.” It is very clear that this section of the Revised Statutes is not applicable to this case, for it refers only to cases of lunatics who have not sufficient property to support them. By strong implication, however, we may suppose that those who have sufficient property are to have it applied to their support.
“ Section 3. The overseers of the poor shall have the same remedies to compel such relatives to confine and maintain 'such, lunatic or mad person, and to collect the costs and charges of his confinement, as are given by law in the case of poor and impotent persons becoming chargeable to any town.”

By reference to the statute for the relief and support of indigent persons (1 R. 8. 615, marg p.) the remedy in such cases is found; which is too familiar to be repeated.

Section 32 of the act of 1842 is applicable to this case, which is that of a lunatic in confinement (not acquitted), and under indictment. In this last case the county judge certifies to his insanity, upon investigation by physicians, &c., according to the provisions of the statute^ and directs his removal to the said asylum to be kept as by the .provisions in section 31. The last clause of this section, and which is the clause upon which the defense is based, is in the following words: The provisions of the last preceding section [31], requiring the county to defray the expenses of a patient sent to the asylum, shall be equally applicable to similar expenses arising under this section and the one next following.” Row, it is claimed by the defendants, .that, though section 32 made the county of Onondaga liable for the support and maintenance of this lunatic, it did not, as did section 31, give the county a remedy over against the estate of the lunatic. And that this express grant of a remedy in the one case, and the omission to grant it in the other) is evidence of intent in the former, and demands the construction, that it was not so intended by the latter section. Although no reason can be seen for making a distinction^ still, if the enactment in the statute of 1842 referred to no other, and ended with section 32, I should be inclined to hold to the correctness of defendants’ construction. But there are other and further provisions in this statute to be considered, which have an important bearing upon the intent of the legislature by this enactment.

Section 35 makes provision for the regulation of the price to be paid for keeping poor or indigent patients to be sent to the asylum, which is not a general provision, but applies only to the indigent.

Section 36 provides that “ Every insane person supported in the asylum, shall be personally liable for his maintenance therein, and for all necessary expenses incurred by the institution in his behalf. And the committee, relative, town, city or county that would have been bound by law to provide for and support him if he had not been sent to the asylum, shall be liable to pay the expenses of his clothing and maintenance in the asylum, and actual necessary expenses to and from the same.” This section, so far as it applies to the persons to be made liable, is general, and is important in its effect in giving construction to the others. First, it plainly makes the lunatic personally liable, so that his estate could be reached, whether or not a committee had then been appointed; second, it provides, in case of the appointment of a committee, that they be made liable to the extent of his estate for his support, just as they would have been if he had not been sent there; and, third, it provides, in the absence of his having property, or a committee, that the existing laws, which make relatives, towns and Counties liable for the support of the insane and poor, shall be resorted to, which in like manner made them liable for the maintenance and support of such insane person in this State institution. This section really declares no new rights or remedies in regard to the poor and indigent, but makes existing rights and remedies applicable to the support of such persons in this asylum. People v. Supervisors of Genesee, 7 Hill, 171. But it is still insisted, that, although this section fixes the liability of the lunatic and his committee for his support, it is only a liability to the State asylum, or to its proper officers, and does not give the county which paid the money in the first instance a remedy over against the committee. This same argument would render the proviso creating the liability entirely nugatory; for neither does it provide the State with any form of remedy to enforce the liability against the lunatic or his committee. The argument has no basis of support but the strictest technicality; it is reasoning against the plainest dictate of justice, that a statute should create a liability against a party, or compel another party to pay such liability, and yet afford the suffering party no remedy.

Section 37 of the act of 1842, which is general, makes the county from which such patient was sent, liable to pay such expenses, and directs the treasurer of such county to pay such expenses to the treasurer of the asylum. The last clause of this section is in the following words, “Said county, however, shall have the right to require any individual, town, city or county that is legally liable for the support of such patient, to reimburse the amount of said bills, with interest from the day of paying the same.” It is very clear that this section does in terms give a remedy over upon the person, whoever it may be, that is legally liable. "Who then is the person legally liable under this section, in a case where it is admitted there is sufficient means of the patient to pay? Clearly the insane person so supported. Section 36 makes him so, in terms. And his committee are the proper persons to be sued. In this particular Consists the distinction between this case and that of People v. Supervisors of Genesee, supra, which is claimed to he controlling. In that case the town was sued, and the town was held not to be liable for the reason that the party who had been so supported, was not a “pauper,” nor “furiously mad.” Paupers and persons furiously mad were the only classes of persons that come within the sections of the Revised Statutes upon which the liability over in that case was claimed. That case decided only that question. It has no application here. The distinction between the cases is clear and palpable; and the decision of this case in the court below is not in conflict with that. To make the provision clear, and to adapt the whole system of the support of lunatics by all former laws to the new system connected with the State asylum, the act of 1842 provides as follows:

Section 39. Every town or county paying for the support of a lunatic in the asylum, or his expenses in going to or from the same, shall have the like rights and remedies to recover the amount of such payments, with interest from the time of paying each bill, as if such expenses had been incurred for the support of the same, under existing laws.”

It is very clear the provisions of this section 39 were intended to superadd, to the remedies already given in that act, the remedies which existed in the former statutes. It may be useful to refer to these former statutes as evidence that they also evince the same spirit and design of casting the liability of support upon the estate of the lunatic when he is possessed of means.

What then were the rights and remedies by the existing laws in relation to the support of the insane, referred to in section 39 ? By 1 R. S. 634, § 1: “ When any person, by lunacy or otherwise, becomes furiously mad, or so far disordered in his-senses as to endanger his own person, or the person or property of others, if permitted to go at large, who is possessed of sufficient property to maintain himself, it shall be the duty of the committee of his person and estate, to provide a suitable place for the confinement of such person, and to confine and maintain him in such manner as shall be approved by the overseers of the poor of the city or town.” Section 13 of the same act gives to the overseers of the poor of any city or town the same remedies, to compel the committee of the estate of any lunatic to confine and maintain such lunatic, and to collect of such committee the costs and charges of his confinement and support, as are given in the same act against the relatives of a lunatic ; and section 14 of the same act gives to superintendents of the poor of the county the same power as is given by section 13 to overseers of the poor. And this same power, by section 39 of the act of 1843, is given to the county (to wit, the board of supervisors). The remedies by the existing laws so referred to, were those provided by sections 3,13, and 14 of the R. S. supra, and also, in part, by the provisions of the act of 1837 (ch. 394), entitled “ An act respecting lunatics,” section 5 of which provided that “ whenever a lunatic shall be confined pursuant to law, if such .lunatic is possessed of any real or personal property, the same shall be first applied to defray the expenses of his confinement and support.”

The difficulty that is found in determining the meaning and intent of the provisions "of these several sections of the statute of 1843, arises from the fact of the existence, at the time of its pasaage, of two or more other statutes, relating in some particulars to the same subject, some of the provisions of which older statutes are partially modified by the act of 1843, and the act of 1843 refers to such existing statutes for the proper remedies. This difficulty is still increased when reference is made to the said existing statutes, as they refer again to statutes in relation to the support of the poor, for the kind of remedies which they afford against parties liable to support others.

But as I have already said, the statute of 1842 contains all the provisions applicable to this particular case, necessary to give the construction that the defendants are liable,

' that the action is well brought by the county of Onondaga, and that the estate of. the lunatic is liable over for the sums they have paid on his account. Such, I think, is the letter, as well as the intent of the statute. I think the judgment should be affirmed.

A majority of the judges concurred.

Judgment affirmed, with costs.  