City of Augusta v. Inhabitants of Mexico

Dissenting opinion.

Murchie, J.

I am unable to persuade myself, notwithstanding a real effort to do so induced by the fact that my associates are unanimous in the view, that the Legislature intended P. L. 1933, Chap. 203, the third section of which is construed by them without reference to other changes made by the Act in our pauper law, to provide that an illegitimate child should follow a settlement of its mother derived by her through marriage. In my view the intention, as part of a general policy that the settlement of every member of a family should follow the family head, was that an illegiti*54mate child should follow its unmarried mother. The marriage of a mother does not make her illegitimate child a member of the family of the husband.

The majority opinion is grounded in the established principles that legislative intention governs the construction of statutes and that deletion of words shows intent to change existing law, but it ignores the principles that intention should be sought by construing enactments as entireties, Smith v. Chase, 71 Me., 164; Berry v. Clary et al., 77 Me., 482, 1 A., 360; State v. Frederickson, 101 Me., 37, 63 A., 535, 6 L. R. A. N. S. 186; Inhabitants of Guilford v. Inhabitants of Monson, 134 Me., 261, 185 A., 517,. “taking all sections . . . and construing them together”, Comstock's Case, 129 Me., 467, 152 A., 618, and that our “pauper statute is one body of law”, Inhabitants of Friendship v. Inhabitants of Bristol, 132 Me., 285, 170 A., 496.

The opinion declares that the purposes of the amendment of R. S. 1930, Chap. 33, Sec 1, Par. Ill, were to “preserve intactness” for a family comprising a husband, wife and illegitimate child and “accord the illegitimate child the same privilege” as the legitimate, and supports the construction declared as recognizing “the underlying principle that settlement of children should follow' that of the parent who was responsible for their support”, citing the Guilford case, supra.

This underlying principle dictated no legislation in this State for more than a century prior to the enactment of P. L. 1929, Chap. 191, wherein earlier language giving legitimate children the settlement of the father if he had one in the State was qualified restrictively to exclude a child given into the custody of its mother by divorce decree. It wras applied restrictively in the Guilford case to exclude the child of a living father divorced from his wife from that direct stepfather control established by P. L. 1933, Chap. 203, Sec. 2, and abandoned by P. L. 1935, Chap. 186. It is used by the majority of the Court to enlarge rather than restrict a field *55defined by legislation in something less than clear and unambiguous terms.

Our pauper law from 1821 to 1933 provided that the settlement of a wife and a legitimate child should follow the husband and father only if he had one in the State, although he was responsible for the support of both regardless of his settlement. By judicial construction, it gave a legitimate child by derivation any settlement which its widowed mother derived from its stepfather, Inhabitants of Parsonsfield v. Inhabitants of Kennebunkport, 4 Me., 47, although the marriage imposed no liability on that stepfather for its support, Inhabitants of Dennysville v. Inhabitants of Trescott, 30 Me., 470. From 1857 to 1933 it made the settlement of an illegitimate child unchangeable from birth to majority or emancipation, although the mother responsible for its support might change her own.

Prior to the enactment of P. L. 1933, Chap. 203, a municipality might have been holden for the support of a wife and the legitimate child of her husband, although not for that of the husband and father. It was bound to provide for the support of a wife and stepchild having no living father, although the stepfather whose settlement imposed the liability did not stand in loco parentis to the child. It was riot obligated for the support of an illegitimate child although the mother responsible therefor might have had a settlement within its borders for many years acquired either directly or by derivation from a husband.

P. L. 1933, Chap. 203, Secs. 1 and 2 changed R. S. 1930, Chap. 33, Sec. 1. Pars, I and II, so as to vest complete direct control of the settlement of wife, legitimate child and stepchild having no living father in the husband, father and stepfather. Sec. 1 deprived a married woman of the capacity to have any settlement except by derivation from a husband. Sec. 2 deprived her of the capacity to control the settlement of her legitimate child and terminated that double deriva*56tion which had previously operated to give the stepchild the settlement of its stepfather through' her. Sec. 3 changed It. S. 1930, Chap. 33, Sec 1, Par. Ill so as to make the settlement of an illegitimate child changeable and vest direct control thereof in the unmarried mother. That this control was not intended to be so complete as to have the child follow a derived settlement seems apparent in the language of Sec. 1 which draws a distinction between a married woman and a “woman over 21 years of age, having no husband.”

Section 1 purports to give capacity to the latter to acquire a settlement of her own, although she possessed it before passage of the Act. See R. S. 1930, Chap. 33, Sec. 1, Par. VI. Recital to that effect, declaratory of existing law, in an act giving the head of a family comprising a husband, his wife and a stepchild having no living father complete direct control over the settlement of himself, his wife and stepchild, convinces me that the amendment of R. S. 1930, Chap. 33, Sec. 1, Par. Ill, contained in P. L. 1933, Chap. 203, Sec. 3, was intended only to give án unmarried mother who was the head of a family and over 21 years of age corresponding control over the settlement of herself and her illegitimate child.

In the Guilford case, supra, on which the majority opinion depends for its assertion of an underlying principle, it is expressly stated that construction should conform to established principles of law and obviate “anomalous and absurd situations.” These are the very reasons which impel me to record my dissent for it was our law prior to 1933 that one marking the mother of an illegitimate child was not obligated for its support and that the burden thereof did not fall on the town wherein the husband had his settlement. Neither of these principles has been changed by clear and unequivocal language. To me construing one section of a legislative act to change well-established law by giving an illegitimate child a pauper settlement through that *57very system of double derivation which another section abolishes for a legitimate child who might be its half-brother is anomalous and absurd, and presents concurrent amendments to our pauper law as “an incongruous, arbitrary and exceptional conglomeration” when they might be made “a consistent and harmonious whole” by limiting the application of the amended R. S. 1930, Chap. 33, Sec. 1, Par. Ill, to the illegitimate children of that “woman over 21 years of age, having no husband” who is indentified in section 1 as one of the persons to whom the legislation as a whole was especially intended to relate. The Smith and Guilford cases supra, carry declaration that consistency and not conglomeration should be the objective of all statutory construction.

The Legislature which enacted P. L. 1933, Chap. 203 appointed a recess committee to study our pauper laws. Its report to the succeeding Legislature is found in Legislative DocumentJMo. 622 of the 87th Legislature. It seems fair to assume that the abandoment of stepfather control over the settlement of legitimate children, carried by P. L. 1935, Chap. 188, was intended to continue the attempt made in 1933 to provide a uniform and readily applicable basis for determining the settlements of paupers by eliminating from the control of the head of a famly all the members except a wife and his own children. If this was the intention in 1935, it is apparent that the members of the 87th Legislature did not construe the 1933 law, in the enactment of which many of its members participated, as it is now interpreted by the Court majority.