#### The Superintendents of the Poor of Dane County vs. The Superintendents of the Poor of Sauk County.

Cause op Action : Suppobt op the Pooe : Residence. (1, 2) *When and against whom county superintents of the poor may recover for support of a pauper who has not acquired a settlement in their county.*

Constitutional La tv. *Two systems for support of the poor;*cli. 34, R S.; *its constitutionality not decided.*

*1.*Under cli. 34, R S., tlie superintendents of tke poor of a county -which has adopted the “ county system ” of pauper support, cannot recover from the superintendents of the poor of another county which has adopted the same system, the expense of supporting a pauper who had removed from the latter'county into the former, unless, at the time of such removal, the pauper had acquired a settlement in some *toion*of the latter county.

3. By the terms of said chapter, *it seems*that where a pauper who has acquired a settlement in some town of one county removes to another county, which has adopted the “ county system,” and, before acquiring a new settlement in any town thereof, is supported by the superintendents of the poor therein, the latter county may recover the amount so legally expended; and that the action therefor will lie against the former county, if the “ county system ” was there in force, and, if otherwise, against *the toion*where such pauper had his settlement.

3. Whether said ch. 34, so far as it provides two different systems for the support of paupers, and gives an option between them to the several counties, is in violation of sec. 23, art. IV of the state constitution (which requires the legislature to establish “ but one system of town and county government, which shall be as nearly uniform as practicable ”), is not here decided,

APPEAL from the Circuit Court for *Saule*County.

This action was brought to recover the amount of certain expenses incurred by the appellants in relieving an indigent person, for which it is claimed the respondents are liable. The complaint avers that both Dane and Sauk counties had theretofore adopted the county system for the support of the poor, pursuant to ch. 34, R. S. The material averments of the com*500plaint in respect to the liability of the respondents, are as follows:

“ That heretofore, to wit, on or about the 17th day of January, 1878, one Charles Wilson,'a person of full age, had resided in said county of Sauk one full year and upwards, and then had a legal settlement therein, and as a poor person was properly chargeable thereto, and then had no legal settlement in Dane county, nor in any town, city or village therein, and, on or about the day last aforesaid, was a poor person and sick and disabled and had no money nor property to pay his board, necessary attendance and medical aid, and was entitled to the same as a poor person from the county of Sauk and from its proper superintendents of the poor, and, being.in said condition and so chargeable to Sauk county, came and removed into Dane county and to the city of Madison therein, and there being, complaint in his behalf was made to the said superintendents of the poor of said county on or about the 15th day of January, 1873, and thereupon, as required by. law, they gave him such assistance as they deemed just and necessary, and furnished such board, attendance and medical treatment as his circumstances required, out of and with the funds of said county for the support of the poor, and as such officers.”

The defendants demurred to the complaint on the ground that it does not state facts- sufficient to constitute a cause of action ;. and the plaintiffs appealed from an order sustaining the demurrer.

*Vilas & Bryant,*for appellants,

analyzed the statutes relating to the support of the poor (Tay. Stats., 716-724), and contended that the legislature, after providing a complete system for their support by the several towns, including, as a necessary part of such a system, rules defining *town*settlements, authorized counties which might elect so to do, to substitute for this a county system, in which “ all distinction between town and county poor ” should be abolished ; and that the legislative design was, that wherever this latter system should be adopted, all the *501provisions relating to towns should be applied, *muiaiis muian-dis,*to the county, and, among other things, that in such counties town settlements should be superseded entirely by county settlements. 2. That the averment in the complaint, that the pauper had “ a legal settlement ” in Sauk county, and “as a poor person was properly chargeable thereto,” is one of mixed law and fact, and, as it follows substantially the language.of the statute (Tay. Stats., 716, § 1), should be treated as an allegation of fact, and is sufficient even if residence for a year in a particular town of Sauk county be required. Stephens’ PL, 192, 193 ; *Deckel- v. Mathews,*12 1ST. Y., 313; *Iowa Go. Sup'rs v. D. M. Co.,*24 Wis., 93 ; *Morse v. Gilman,*16 id., 504; *Jarvis v. Hamilton,*id., 574. 3. That the action would lie without any presentation of the account to the supervisors of Sauk county for allowance. *City of La Crosse v. Town of Melrose,*22 Wis., 459 ; Tay. Stats., 721-2, §§ 27-29.

*John*Barker, District Attorney, with *J. W. Lusk*of counsel, for respondents,

contended, 1. That the allegation that the pauper had resided for one year in Sauk county, without any averment that he had resided, for that period in any particular *town*of said county, did not show that he had acquired a legal settlement therein; and the further averments on that subject were bad, being of mere conclusions of law. 2. That the complaint -was insufficient because it did not aver that the claim sued upon had been presented to the board of supervisors of Sauk county for allow’ance. R. S., eh. 13, sec. 42: ch. 5, sec. 1, subd. 12; *Savage v. Sup'rs,*10 Wis., 53; *Sup'rs Jaclcson Co. v. Sup'rs La Crosse Co.,*13 id., 490.

Lyon, J.

Chapter 34, R. S., provides two methods for the relief and support of the poor. The primary method (which may be called the town system) is that each town “shall relieve and support all poor and indigent persons lawfully settled .therein, whenever they shall stand in need thereof” (sec. 1); and that a town, by its supervisors, shall also, in the first in*502stance, render assistance when necessary to any indigent person therein who has no legal settlement in such town. But the expense of relieving such unsettled person is a county charge. ■•Sees. 20 and 21. Certain special cases are provided for in secs. 23 to 27 inclusive. The statute thus makes two classes of indigent persons. The first class includes those who have a legal settlement in some town, and the second class those who have not; the support of the former being a town charge, and of the latter a county charge. The provisions of the statute in respect to pauper settlements, applicable to the case, is found in sec. 2, subd. 4, and is as follows: “ Every person of full age who shall "have resided in any town in this state one whole year, shall thereby gain a settlement in such town.”

The other method is prescribed in the same chapter, secs. 32 to 39 inclusive; is entitled “ of the support of the poor by counties and may be denominated the county sj^stem. Sec. 32 authorizes the board of supervisors of any county to “ abolish all distinction between county poor and town poor in such county, and have the expense of maintaining all the poor therein a county charge.” The remaining sections last above cited provide for the election of superintendents of the poor, and prescribe their powers and duties, but contain no provision on the subject of pauper settlements.

Sec. 37, in general terms, confers upon such superintendents the powers, and imposes upon them the duties, of town supervisors as officers of the poor under the town system. Probably this provision gives the superintendents an action against a town in another county where the town system prevails, for the expense of relieving an indigent person having a legal settlement in such town: or if the county system is in operation therein, then against such other county. But the learned counsel for the appellant, with much ingenuity of argument, maintain that the effect of abolishing the distinction between county poor and town poor is to modify the law of pauper settlements, so that a residence in the county at large for one year (although *503not in any one town for that time) gives a legal settlement in the county, and makes the county liable in a proper case for the support of a person having such settlement therein, just as the same residence in a town, where the distinction is not abolished, constitutes a legal settlement in the town and renders it so liable.

It is apparent that had Wilson come into Dane county from a county in which the town system of supporting the poor is in operation, no action for the expenses of relieving him could be maintained against such county; and none could bemraintained against any town therein without averment and proof that he had a legal settlement in such town. So, if the position of appellants’ counsel be correct, it comes to this: the respondents arc liable for the expenses incurred by the appellants in relieving Wilson because in Sauk county the distinction between county poor and town poor has been abolished; whereas, had Wilson come into Dane county from a county in which such distiction has not been abolished — all other circumstances being the same, —the appellants would be'remediless.” If this were so, it would be a very grave question whether a statute •which might operate so unequally in different towns and counties does not violate that provision of our constitution which ordains that “ the legislature shall establish but one system of town and county government, which shall be as nearly uniform as practicable.” Art. IY, see. 23.

But we are of the opinion that the position of appellants’ counsel is untenable. Wc find no provision in the statute for *county*settlements, but only for *town*settlements; and settlement of some character is certainly a prerequisite, without which neither a town or county can be held liable over for the expense of relieving a pauper. The abolishing of the distinction between county poor and town poor relates only to the mode of maintaining them. That which was a town charge becomes thereby a county charge. This, we think, is the only additional burden which the change of system imposes upon *504the county. When the distinction between county poor and town poor was abolished in Sauk county, the liability of each town therein for the support of the poor was assumed by .the county; and it assumed no other or greater liability. If, therefore, under the town system, no town in Sauk county would have been liable over to Dane county for the relief furnished to Wilson, Sauk 'county is not liable therefor under the county system. The complaint fails to state facts showing that any town in that county would be so liable, did the town system prevail there, and from the foregoing views (if they be correct) it, necessarily follows that it fails to state a cause of action against the county, and that the demurrer thereto was properly sustained.

Because it is most favorable to the appellant, against whom our judgment goes, we have assumed for the purposes of this case that the statute conferring • upon county boards of supervisors power to abolish in their respective counties the distinction between county poor and town poor does not disturb the uniformity of the system of town and county government to an extent forbidden by the constitution. It must be understood, however, that we do not here pass upon the validity of that statute.

*By the Court.*— Order affirmed.