gave the following dissenting opinion:—
By § 13, of c. 28, stat. of 1840, it is provided, that any two or more overseers in a town having a work-house, may, by order under their hands, commit to such house the persons described in the first section of the same chapter, to wit:—
1st. All poor and indigent persons that are maintained by or receive alms from the town.
2d. All persons who, being able of body, and not having estate or means otherwise to maintain themselves, refuse or neglect to work.
3d. All persons who live a dissolute and vagrant life, and exercise no ordinary calling, or lawful business, sufficient to gain an honest livelihood.
4th. All such persons as spend their time and property in public houses, to the neglect of their business, or by otherwise mis-spending what they earn, to the impoverishment of themselves, and their families are likely to come to want.
Pauperism works most important changes in the condition of the citizen. Through its influence, he is deprived of the elective franchise, and of the control of his own person. The pauper may be transported from town to town, and place to place, against his will; he loses the control of his family, his children may be taken from him without his consent; he may himself be sent to the work-house, or made the subject of a five years contract, without being personally consulted. In short, the adjudged pauper is subordinated to the will of others, and reduced to a condition but little removed from that of chattel slavery, and until recently, by statute of 1847, c. 12, like the slave, was liable to be sold upon the block of the auctioneer, for service or support.
A condition in life so undesirable, not to say revolting, to all that is manly and ennobling in human character, should not be established unnecessarily, nor by doubtful nor precipitate action.
The situation of the pauper, or of such as are, in the words of the statute, “likely to become paupers,” is more dependent and unprotected than the decidedly vicious and criminal.
*412Thus, while rogues, vagabonds and beggars; night-walkers, brawlers, pilferers, common drunkards, fortune-tellers, common pipers, fiddlers and the like, may not be sent to the house of correction, except upon trial before a magistrate and on complaint on oath with a right of appeal, or before the Supreme Judicial Court, and then restrained only for a limited period of time; the persons described in the first section of the 28th chapter may be sent to the work-house, by the overseers thereof, for an indefinite period, without any complaint, trial, or right of appeal. And this unrestrained power is exercised over a class of persons not paupers, nor even quasi paupers, but who, it is supposed, are likely to become such.
Without stopping at this time to inquire into the expediency of conferring such powers upon any class of citizens, or whether the statute is not in violation of constitutional provisions, and the rights of the citizen, it is obvious that such anomalous powers can only be exercised in that class of cases which are specially pointed out by the statute. Such an irresponsible tribunal, or body, cannot be permitted to extend its jurisdiction by implication, nor assumption; it must walk within the very letter of the law.
Applying these rules to the case as presented before us, had the overseers of the work-house in Portland any jurisdiction over the persons of Mrs. Brown and her daughter when they issued their warrant for their arrest, and sent them to that work-house ? They were committed, as their warrant recites, as being “persons able of body to work, and not having estate or means otherwise to maintain themselves, refuse or neglect to do so; live a dissolute and vagrant life, and exercise no ordinary calling or lawful business sufficient to gain an honest livelihood.”
' The evidence reported, supports no one of these allegations, but tends to show that these persons kept a house of ill-fame, and, perhaps, satisfactorily establishes that fact. If so, they might have been properly proceeded against on complaint or indictment, for that offence, but not in this manner.
But it is contended that the warrant, and officer’s return *413thereon, is conclusive in the case. Nothing may be presumed in favor of the jurisdiction of an inferior tribunal. Nothing, surely, can be presumed in favor of a body, assuming to control the persons of citizens, and incarcerate them, who hardly present the form or semblance even of an inferior tribunal. No; such a body must show that it has jurisdiction, before its acts and decrees can be respected.
It may, however, be contended, that whether the acts of the overseers were lawful or not, is immaterial; because the alleged paupers were in distress, and stood in need of immediate relief, at the time they were supplied, and the defendant town was notified.
Section 29, c. 32, R. S. of 1840, provides that “the overseers, in their respective towns, shall also provide for the immediate comfort and relief of all persons residing or found therein, not belonging thereto, but having lawful settlements in other towns, when they shall fall into distress and stand in need of immediate relief, and until they shall be removed to the places of their lawful settlements.”
To authorize towns to interpose under this provision of the statute, and furnish supplies, with which to charge another town, the alleged pauper must have fallen into distress, and stood in need of immediate relief, and the supplies must have been furnished them, as paupers, in good faith. The law will not permit towns, by their unauthorized acts, to force persons, residing therein, into situations of distress, and then relieve them, as paupers, at the expense of some other town. Such a practice would introduce a new mode for preventing settlement of persons in a town, unknown to the law. It is only that class of persons who fall into distress, in the ordinary course of events, or under the ordinary operation of the law, that this statute contemplates.
There is no evidence in this case that Mrs. Brown or her daughter were in distress, or stood in need of relief, at the time of their arrest, under the warrant of the overseers, or that they would have been in that condition had they not been *414thus molested, or in case they had been subjected to the ordinary course of legal proceedings.
If it should be suggested, that the plaintiffs are not responsible for the unauthorized acts of the overseers, and that the alleged paupers were in distress, without fault on the part of the plaintiffs when the supplies were furnished, the answer is, that the acts of the overseers have been adopted and ratified by the city, and they are now clearly bound thereby. The authority cited from 1 Met. 495, does not apply.