I find myself unable to agree with the construction which the court has placed upon the provisions of sec. 49.03, Stats. 1935, a part of ch. 49, Stats., entitled "Relief and support of the poor." My reasons for dissenting are based upon the following considerations z
Sec. 49.03, Stats., relates to local relief of transient paupers.
Sec. 49.03 (1), Stats., provides:
"When any person not having a legal settlement therein shall be taken sick, lame, or otherwise disabled in any town, city or village, or from any other cause shall be in need of relief as a poor person and shall not have money or property to pay his board, maintenance, attendance and medical aid and shall make a sworn statement as to his legal settlement, the town board, village board or common council shall provide such assistance to such persons as it may deem just and necessary, and if he shall die, it shall give him a decent burial. It shall make such allowance for such board, maintenance, nursing, medical aid and burial expenses as it shall deem just, and order the same to be paid out of the town, city, or village treasury."
Sec. 49.03 (3), Stats., provides:
"The clerk of the municipality furnishing such relief shall ascertain, if possible, the municipality in which such settlement is located, and within ten days after such person becomesa public charge, shall serve upon the county clerk of his county a written notice which shall state the name of the person who has received public aid, the name of the municipality where such person claims a legal settlement, or, if such place couldnot, after due diligence, be ascertained, a statement of such *Page 565 fact, and the date on which the first aid or support wasfurnished. In case such notice is not given within ten days, the same may be given at any other time, but the county shall be liable only for the expense incurred for the support of such person from and after the time of the giving of such notice." (Italics supplied.)
It is my view that under the provisions of sub. (3) no duty is imposed upon the clerk of the municipality furnishing assistance to ascertain the settlement of the person aided or to give notice until after the relief has been furnished. I can put no other construction upon the language, "The clerk of the municipality furnishing such relief shall ascertain," etc.
It is also clear to my mind that a person does not become a public charge in the sense in which that term is used in the statute until relief has been furnished. A mere application relief and its approval by the relief agencies does not constitute furnishing relief. It is merely a preliminary step. If no relief is furnished, no obligation arises and there is no necessity for ascertaining the place of settlement of the person aided nor to inform the municipality of his settlement that relief has been furnished.
It is provided by sec. 49.03 (4), Stats., that —
". . . In case such notice is not given within such ten days the same may be given at any other time, but the municipality so notified shall only be liable for the expense incurred by such county for the support of such person from and after the time of the giving of such notice."
The notice referred to in sub. (4) is the notice provided for in sub. (3). Sub. (3) requires the notice to contain a statement of the date on which the first aid or support was furnished. There can be no compliance with that provision until the aid has been furnished. While sub. (4) provides that notice may be given at any other time, the notice referred to is the notice required by sub. (3), which must be given *Page 566 after relief is furnished and contain a statement of the date on which the aid or support was furnished.
In my opinion the failure to comply with the statute cannot be passed over because in this instance it appears to be of little consequence, no one having been misled. The giving of the statutory notice is a condition precedent to the right of the municipality furnishing the aid to recover from the county in which it is located and of the right of that county to recover from the county of the poor person's residence.
It is hardly necessary to cite cases to the proposition that where a statutory liability is made conditional upon the performance of certain acts prescribed by the statute, those acts must be performed in accordance with the terms of the statute. See Binsfeld v. Home Mut. Ins. Co., ante, p. 552,15 N.W.2d 828.
The facts as stated by the relief director of the city of Green Bay are that Mazur made application to the city of Green Bay for relief on the 5th day of June, 1935; that on the 21st day of June, 1935, the first relief was supplied to Mazur. In disposing of this matter the state department of public welfare, division of public assistance, said:
"However, the advice of the attorney general to the effect that the notice must be given at the time relief is accorded is literally true. Notices cannot be given on speculation. The legislature has provided a plan of procedure. It is not unusual for local relief agencies to have the applicant execute the affidavit (pauper oath) and the nonresident notice (combined in the commercial forms) in the office at the time of application for relief, and then to investigate and grant assistance. There is danger in this practice relating to the time element. However, we have heretofore held that a notice is good if it is reasonably contemporaneous with the granting of aid."
It seems to me that this is a rather cavalier way of disposing of the explicit terms of a statute by an administrative agency *Page 567 and a practice which ought not to be approved or condoned. If the division of public assistance can ignore a difference of sixteen days it can in effect amend the statute.
In my opinion the judgment should be reversed and the proceeding dismissed.