#### Richardson and others, Trustees, Respondents, vs. Stuesser, Appellant.

*April 5*

May 2, *1905.*

*Statutes: Construction: Support of insane persons, how enforced: Husband and wife: Liability of husband for support of insane*

1. The incorporation of secs. 1500 to 1505, both inclusive, Stats. 1898, into sec. 604-e thereof so as to be applicable to the insane, affects all such, the support of whom is not properly a public charge, and provides procedure to be followed in compelling those privately liable for such support to do so.

2. In harmony with sec. 1502, Stats. 1898, as to the poor, the trustees of a county asylum for the insane should proceed by petition to the county judge to establish the liability of any one for the support of an insane person at such asylum, who refuses to perform his duty in that regard, and the amount which he should pay and the time of payment determined, in harmony with sec. 1504, and they may cause the order of the county judge in that regard to be enforced by contempt proceedings or by action.

■3. An action to enforce such an order must be commenced in the name of the county in some court having jurisdiction of such civil actions. The county court does not possess such jurisdiction in the absence of special authorization.

•4. The common-law liability of a husband to support his wife does not extend to supporting her outside the matrimonial home, xeasonably chosen by him, unless he refuses to do so there, or tshe resides away therefrom by his consent.

'5. Such common-law liability cannot be extended by implication from the written law as to the support of other persons. It can only be extended by a statute plainly so intended.

6. Where a wife, as a charity to her and protection to others, is by due process of law taken from the matrimonial home and confined in an asylum for the insane and the husband submits, or even takes the initiatory proceedings to secure for her the benefit of the public charity, there is no element of refusal by him to support her at the matrimonial home or consent by h'im to her absence therefrom, within the common-law rule rendering him liable for her support outside of such home.

*677. There being no express statute in this state extending the common-law liability of the husband to support his wife in a case where she has been removed from his home by due process of law and maintained at an asylum for the insane, he is not liable in such circumstances.

[Syllabus by Mabshaxx, J.]

Appeal from a judgment of tbe circuit court for La Crosse county: J. J. Feuit, Circuit Judge.

*Reversed.*

Appellant’s wife in due form of law was committed to tbe La Crosse county asylum for tbe chronic insane. Upon the ground that be was of sufficient ability to maintain her at such asylum but refused to do so, tbe trustees thereof petitioned tbe county court of such county for an order requiring him to pay $3 per week therefor from and after September 1, 1903, so long as she remained therein. Such proceedings were duly bad as to such petition that appellant was required to plead thereto, which he did by demurring to the jurisdiction of the county court over the subject matter and to the sufficiency of facts stated to show liability, and by putting in issue the facts alleged as to his ability to comply with the demand of the petitioners. The demurrer was overruled and the prayer of the petitioners granted. Appellant appealed to the circuit court for La Crosse county. A trial was had in such court resulting in findings that defendant’s wife had been since December 10, 1901, an inmate of the asylum as stated in the petition, she having been in due form of law committed thereto; that he had complied with the demands of the trustees of the asylum as to furnishing clothing for her, but refused to contribute anything for her board and care; that she was not a pauper nor a public charge; that he was possessed of property and was otherwise of sufficient ability to pay reasonably for her maintenance at such asylum and was legally bound to do so; and that the sum of $3 per week was reasonable therefor. Judgment was thereupon rendered requiring defendant to pay the trustees of *68such asylum $2 per week from December 22, 1903, so long as bis wife should remain an inmate thereof, and awarding to them costs to the amount of $32.84. This appeal was taken therefrom.

For the appellant there was a brief by *Paul W. Mahoney*and *Morris &*Hartwell, and oral argument by *Thomas Morris.*

*Otto Bosshardj*district attorney, for the respondents.

Maeshall, T.

Several provisions of the statutes seem to have been called to the attention of the trial court to sustain the proceeding, which are relied on now to support the judgment. Each of them will be briefly referred to.

Considerable significance is claimed for sec. *604q,*Stats. 1898. That makes the property of an insane person, who is kept in any state or county hospital or by any county otherwise at its expense, liable for his support, and provides a remedy for the enforcement of such liability. It throws no light on the right of the controversy here, since such controversy does not involve any claim of liability for the support of appellant’s wife out of her property.

Sec. 600, Stats. 1898, is referred to as having some significance. It authorizes a district attorney, under the direction of his county board, in the name of his county, to “sue for and collect from the property of any patient maintained at” a state hospital for the insane at the cost of the county, or from any person legally bound to support such patient, the amount charged by the state to such county therefor. Plainly this matter is not within that field. No liability of the county is claimed to have been created by reason of the support of appellant’s wife at such hospital; neither was this proceeding brought by the district attorney, nor was it an action within the meaning of the statute, nor was its commencement directed by the county, board. The county judge in the absence of special authorization has no jurisdiction of *69an action under such section, or the circuit court capacity to take jurisdiction by appeal from the county judge’s order, except to dismiss the proceeding. *Klaise v. State,*27 Wis. 462; *Butler v.*Wagner, 35 Wis. 54; *Miller v. Crawford Co.*106 Wis. 210, 82 N. W. 175; *Stoltman v.*Lake, 124 Wis. 462, 102 N. W. 920; *Birdsall v. Kewaunee Co.*124 Wis. 576, 103 N. W. 1.

Next we are referred to sec. 604e, Stats. 1898, negativing any liability of the state to any county by reason of the support by such county of any person at its county asylum for the insane, who is not a public charge, and making the “provisions of sections 1500 and 1505, both inclusive,” applicable to the support of insane persons. Turning to such sections we find they refer to the relief and support of the poor. They declare that the father, mother and children, being of sufficient ability to care for any poor person, “who is unable to support himself, shall be liable for such support,” and provide the method of procedure to enforce such liability, the moving parties being the town supervisors, the jurisdiction invocable that of the county, court and the manner thereof being by petition as in this case. It is argued that the effect of incorporating such section into the one relating to the insane is to provide a remedy only for enforcing liabilities for the support by relatives of insane poor persons at county asylums and those of the particular class mentioned. It seems that would be too narrow a construction of the incorporating language. The express prohibition in sec. 604e of any credit from the state in favor of a county for the support of an insane person at a county asylum, the support of whom is not properly a public charge, coupled with writing into it, so to speak, secs. 1500 to 1505, suggests pretty plainly, if not conclusively, that as to a person duly committed to a county asylum, of the class mentioned, the proceedings to enforce the private liability must be under such sections, so far as they are applicable thereto. That would include the jurisdiction *70to be invoked, tbe manner of invoking it, as by petition, and tbe procedure outlined in respect to tbe matter.

We are referred to cli. 245, Laws of 1899, as authorizing tbe commencement of proceedings in tbe name of tbe trustees. That makes tbe trustees of a county asylum for tbe chronic insane *ex officio*trustees of tbe county poor with power “to commence and prosecute in tbe name of tbe county any proper action or actions to enforce and collect any account, claim or demand that may arise or accrue to'the county in their administration of tbe business affairs of such asylum,” they to account to tbe county board of supervisors for all moneys so received or collected. Tbe maintenance under tbe direction of tbe trustees of a county asylum for tbe insane of a person thereat, who shall have been properly committed thereto, whose support is not properly a public charge, would create a basis for a liability “in their administration of tbe business of” operating tbe asylum against tbe person or property liable for such support, but not a fixed liability constituting an “account, claim or demand,” within tbe meaning of tbe statute. That term suggests tbe existence of a liability fixed in amount and payable.

Sec. 1502, Stats. 1898, as to poor persons, provides for a proceeding in tbe name of tbe town supervisors of tbe nature of tbe one resorted to here for tbe purpose of determining whether tbe person proceeded against is liable to tbe municipality, and if so, tbe amount of such liability and when payment should be made. That having been made a part of sec. 604c, as to tbe insane, it would seem that tbe proceedings to fix tbe amount of tbe liability of any person for tbe support of an insane person at a county asylum should be commenced as it was here, in tbe name of tbe trastees. Tbe term “proper action” as used in tbe law of 1899 evidently refers to an ordinary action under tbe Code, which, without some special authorization therefor, cannot be commenced before a county judge. Such term does not refer to a special *71proceeding of the sort resorted to here. Moreover, it does not authorize any proceedings other than in the name of the county.

Sec. 1504, as to the poor, provides for the enforcement of the county judge’s order by contempt proceedings, and the following section provides for such enforcement by an action in the name of the town. In the absence of any other guide the fair inference would be that the same method of enforcement would be proper as to an order requiring a person to contribute to the county for the support of an insane person, the action to be brought in the name of the county, but the law of 1899 furnishes a definite guide, in that it provides that the action shall be so brought.

So the concluion is reached that if appellant’s wife, while she was at the county asylum for-the insane under a proper commitment thereto, was not a proper public charge, because he was by law liable for her support, the proceedings resorted to for the purpose of having such liability, the amount thereof and the time for its satisfaction adjudicated were proper. So the county court had jurisdiction of the subject matter of the proceedings and on that point there is no infirmity in the judgment.

We are not aware of any statute varying the common-law liability of a husband to support his wife. Counsel for respondent does not suggest any which expressly does so, but argues that our statutory policy is that only such insane persons shall be cared for at public expense in state or county hospitals as have no property that can be devoted thereto and no relatives legally bound therefor. This is true, but does not settle the question here at issue. No extension of the husband’s common-law liability for the support of his wife can be predicated on mere legislative policy shown by the liability created by statute, or expressly recognized thereby as to other persons. New rights in derogation of the common law must rest upon unmistakable statutory provisions. The *72common law is not subject to change by mere implication. A statute to accomplish such a change “must be clear, unambiguous and peremptory.” Sedgwick, Stat. & Const. Law (1st ed.) 318 [2d ed. 275]; *Meek v. Pierce,*19 Wis. 300; *Orion v. Noonan,*29 Wis. 541; *School Directors v. School Directors,*81 Wis. 428, 438, 51 N. W. 871, 52 N. W. 1049. So we are led to inquire whether by the common law a husband is liable to support his wife under the circumstances of this case. If not, then sec. 604c has no application to the matter in hand.

The liability of a husband for the support of his wife by common-law rules only requires him to do so in the matrimonial home, selected by him, — acting reasonably, — unless she is compelled to seek or accept support elsewhere because of his wilful neglect or refusal to perform his duty or her living apart from him by his consent. Generally speaking, the duty of the husband for the maintenance of his wife does not extend to the support of her while she is away from his home. *Sturtevant v. Starin,*19 Wis. 268; *Warner v. Heiden,*28 Wis. 517; *Bach v. Parmely,*35 Wis. 238; *Brown v. Worden,*39 Wis. 432; *Morgenroth v. Spencer,*124 Wis. 564, 102 N. W. 1086.

. It would seem that when a wife by due process of law, as a charity to her and protection to others, is taken from the society of her husband without fault of his and confined in an asylum for treatment or safety, or both, there is no refusal by him to support her in his home, even if he is an actor as regards setting the legal machinery in motion for the purpose of affording her the benefit of the public, charity and guardianship, nor is there in such a case any consent by the husband to the wife’s absence from his home within the meaning of the common-law rule, clothing her with his credit for the purpose of her support. There is no very great amount of authority on this question. The following are, in our judgment, the most important of the adjudicated cases *73throwing light on the subject. It will be seen by a careful examination of them that they are substantially all one way though not entirely in harmony. *Delaware Co. v. McDonald,*46 Iowa, 170; *Noble Co. v. Schmoke,*51 Ind. 416; *Switzerland Co. v. Hildebrand,*1 Ind. 555; *Marshall Co. v. Burkey,*1 Ind. App. 565, 27 N. E. 1108; *Davis v. St. Vincent’s Inst.*61 Fed. 277, 9 C. C. A. 501; *Watt v. Smith,*89 Cal. 602, 26 Pac. 1071; *Wray v. Wray,*33 Ala. 187; *Monroe Co. v. Budlong,*51 Barb. 493; *Goodale v. Lawrence,*88 N. Y. 513, overruling *Goodale v. Brockner,*25 Hun, 621; *Bangor v. Wiscasset,*71. Me. 525; *Senft v. Carpenter,*18 R. I. 545, 28 Atl. 963; *Howard v. Whetstone,*10 Ohio, 365; *Springfield v. Demott,*13 Ohio, 104; *Baldwin v. Douglas Co.*37 Neb. 283, 55 N. W. 875.

The Iowa, Nebraska, and Indiana cases are to the effect that there is no common-law liability of the husband in cases of this kind. In the New York, Rhode Island, Alabama, and Federal cases liability was adjudged, but in each instance there was an abandonment of the'insane wife and the decision was placed’ on that ground. The California decision was based on a statutory liability. We venture to say that no court, which has considered, and decided the question upon its being the turning one, as in the case in hand, or its being sufficiently involved to challenge careful attention to the matter, has held that there is any common-law liability of the husband in circumstances similar to those in this case. The basic idea of the common-law rule is that in the special instances where the wife is permitted to use the credit of her husband for her relief and support, she is his agent *ex necessitate legis*or *ex necessitate rei,*failure of duty on his part being the cause of the need. There is no room whatever for that idea where the charity of the law intervenes without fault on the part of the husband for the care-and protection of the unfortunate wife, and public safety supersedes him as regards authority and capacity to care for her in his home. *74Our conclusion, is that till the legislature makes some express provision to the contrary, no recovery can he had of the husband in a case of this sort. Therefore, the" judgment ap-jjealed from must be reversed.

*By the Gouri.*— The judgment appealed from is reversed, and the cause remanded with directions to render judgment in favor of the appellant.