This action is brought to recover over from the defendant the sum of $781.08, which the plaintiff paid for the support and maintenance of one Briggs in tne Matteawan State Hospital ; said Briggs being a person under indictment, whose trial *710was suspended pending his confinement in such hospital on account of insanity. The learned trial justice before whom' the case was tried held, as matter of law, that the plaintiff could not recover, upon the undisputed and established facts; and we think that he was correct in his conclusions, and that the judgment should be affirmed.
Briggs was an unmarried man living with his parents in the town of Sandy Creek, Oswego county. Upon September 27,1885, he was indicted by a grand jury in Jefferson county for the crime of assault, alleged to have been committed by him in said county. Upon arraignment he entered a special plea of insanity, and thereupon, in accordance with the provisions of the Code of Criminal Procedure (section '658 et seq.) proceedings were instituted to determine his sanity or insanity. These proceedings resulted in the determination that he was insane, and thereupon he was confined in the Utica Asylum until February 28, 1888, when he was transferred to the Asylum for Insane Criminals at Auburn, and later to the Matteawan State Hospital, where he has since been confined. The plaintiff was called upon to pay, and did pay, for his support and maintenance, the sum of $195 per year, in accordance with the provisions of section 662 of the Code of Criminal Procedure. A bill for the amount so paid each year was by it presented to the board ■ of supervisors of Oswego county, which audited and allowed the same from the day of commitment down to and including September 30, 1897. Since then the defendant has refused to pay said bills, which have been presented the same as formerly.
It was held by the trial court, and we think" properly, that, as a matter of practice, this action might be maintained against the defendant, but that the facts did not warrant a recovery. Section 662 of the Code of Criminal Procedure, already referred "to, provides that, when a person pleading insanity in criminal proceedings is sent to a state lunatic asylum, “the expenses of sending the defendant to the asylum, of keeping him there, and of bringing him back, are, in the first instance, chargeable to the county from which he was sent; but the county may recover them from the estate of the defendant, if he have any, or from a relative, town, city or county, bound to provide for and maintain him elsewhere.” It is conceded that Briggs has no estate or relative from which or whom the expenses paid by the plaintiff may be collected. The plaintiff seeks to hold the defendant liable upon either one of two theoiies, which may be briefly discussed:
It is urged that Briggs was an indigent insane person, and that there was a general liability upon the part of the defendant county in which he had his residence to .provide for his maintenance as such, and that therefore it was liable, under the particular circum- > stances of this case, within the language o'f the section just quoted, because being the “county bound, to provide for and maintain him elsewhere.” ■ Chapter 446, p. 564, of the Laws of 1874, is relied upon as imposing upon the defendant the necessary general liability for : the maintenance of. Briggs. •. Section 14 of this act did make pro*711vision for the care and maintenance of a person in indigent circumstances; not a pauper, becoming insane, and we shall assume that said act did impose upon the defendant a general responsibility for the care of indigent insane persons who had not been committed to an asylum in connection with criminal proceedings. People ex rel. Blenheim v. Board of Supervisors, 121 N. Y. 345, 24 N. E. 830. We fail to see, however, that that act can be made the basis of a recovery of the sum paid for the maintenance of Briggs since September, 1897, because said section was repealed by chapter 545, p. 471, of the Laws of 1896, and by said latter act (section 65, p. 496) a new scheme was devised, whereby indigent insane persons, not in confinement under criminal proceedings, were to be maintained at the expense of the state, with a right to reimbursement from relatives or friends. No other source of authority for the recovery of the amount paid out by plaintiff for the support of Briggs as an indigent insane person has been called to our attention, than the statute thus repealed.
But while it is conceded that section 14, c. 446, p. 566, Laws 1874, which we have assumed would have made defendant liable for the support of Briggs “elsewhere,” within the meaning of section 662, Code Cr. Proc., has been specifically repealed, and while we are pointed to no other direct source of liability by defendant to plaintiff for his support, it is still urged that we may find such basis for liability by divining what must have been the legislative intent upon this subject. It is reasoned, in substance, that after the repeal of said section 14, in 1896, section 662 of the Code of Criminal Procedure still remained, which made defendant liable for the support of Briggs, and allowed it to recover over from a county liable for his maintenance “elsewhere”; that it could not have been the intention of the Legislature to make the plaintiff liable for the support of Briggs simply because he came there and committed a crime, and at the same time relieve the defendant, where he resided, but that said Legislature must have intended to preserve this latter liability, although in terms repealing it. And support is sought for this argument in the fact that sections 22, 26, c. 446, pp. 568, 569, Laws 1874, which also provide for the recovery over by a county paying the expense of certain insane criminals from another county which would have been bound to provide for them “elsewhere,” were not repealed. It is not claimed that Briggs was committed under these sections, and their only force is by way of analogy. If it be admitted that the results accomplished by repealing one provision and leaving the others do seem somewhat unjust in this case, that will not empower us by construction to supply the place of requisite statutory provisions which have in fact been repealed. The question is, was the defendant bound to maintain Briggs “elsewhere”; that is, as an ordinary indigent insane person, during the years in question.
In making the changes in its scheme of caring -for, the insane embodied in the laws of 1896 repealing portions of the statute of 1874, whereby, generally speaking, ihey became a charge upon the *712state instead of upon localities, the Legislature may have overlooked the clause already quoted in another statute like the Code of Criminal Procedure, which incidentally provided for a recovery over based upon a possible general liability to maintain insane persons not criminal. Or it may have been deemed proper, in an abundance of caution, and under no circumstances objectionable, to leave the provisions that a county paying the expenses of an insane criminal should be entitled to get them back from a county which would have been obliged to support him elsewhere, if any such there^ was. That did not create a liability, if it did not exist, and we do not think it did exist after 1896. The policy for a time after 1896 of still holding a county liable in the case of an insane person confined in connection with criminal proceedings, like Briggs, seems to stand by itself, and not at all to infringe upon the general doctrine of relieving counties from liability for such support “elsewhere.” * Section 101, c. 545, p. 508, Laws 1896'; chapter 546, p. 1342, Laws 1901, amending section 65, c. 545, p. 496, Laws 1896. And it is very significant that these later statutory enactments making liable the county sending to the hospital the insane criminal did not contain any provision giving such county a right of recovery of said expenses from the county in which the insane person had had his residence, such as is found in the earlier provisions of the Code of Criminal Procedure. .Later, apparent doubt of the justice of making liable the county where simply an offense was committed by a person afterwards confined as insane made itself manifest in legislation. Section 65 of chapter 545, p. 496, Laws'1896, was amended by chapter 380, p. 903, Laws 1900, so as to contain the provision that “the maintenance of any inmate of a state hospital committed thereto upon a court order arising out of any criminal action or proceeding shall be paid by the county from which such inmate was committ'ed.” By chapter 260, p. 461, Laws 1899, however, section 101 of chapter 545, p. 508, Laws 1896, had been amended so as to provide that when, as might be done, an insane inmate of a “state hospital” committed thereto upon the order of a court of criminal jurisdiction was transferred to the Matteawan State Hospital, his expenses should be paid by the county in which the criminal charge arose, “if the person was then a resident of that county,” and in other cases should be a charge against the state, and this limitation of liability has since continued in force. There is to be noted this difference in liability for the expenses of an insane person, depending upon his confinement in the Matteawan Hospital or some other. Briggs was originally sent to the State Lunatic Asylum at Utica, which is described as a state hospital in these acts, but he was transferred to the State Hospital at Matteawan upon its establishment.
Independent of the question of plaintiff’s liability to pay at all for his expenses there for the years 1899, 1900, and 1901, subsequent to April 6, 1899, when the amendment last referred to was adopted, which is not raised; it hárdly seems necessary for the Legislature to have adopted this provision limiting the liability of a county sending to the hospital an insane criminal person to the case of a resident, and making the ex*713pense otherwise a state charge, if during all of this time the law permitted a county paying for a nonresident to immediately reimburse itself by recovery over from the county of residence.
A review and consideration of all of these provisions leads to the conclusion that after the repealing legislation of 1896, already cited, the Legislature did not, and did not intend to, preserve a general liability upon the part of counties for the support “elsewhere” of indigent insane not confined in connection with criminal proceedings,, which may be made the basis of recovery in this action; and if, after said date of repeal, there be found remaining somewhere an isolated clause referring to such former general liability, we think it is to be-ascribed to inadvertence, rather than made the foundation for attempting to perpetuate by a process of construction statutory provisions-which have been definitely and specifically repealed.
No authorities are cited to sustain the proposition, somewhat tentatively made, that, because at the time Briggs was sent to the asylum-there existed a statute permitting the county of Jefferson to recover from the county of Oswego what it paid for his support and maintenance, the former acquired vested rights against the latter, which' could not be impaired by subsequent legislation. It does not seem to us that this view can be successfully maintained. The whole subject is controlled by statutory enactment against the will, or at least without the consent, of the counties. The county of Jefferson did not send Briggs to the insane asylum and incur expenses for his maintenance-there in reliance upon the statute, that it might recover back said expenses from the defendant. The statute provided that, independent of any consent by said county, Briggs should be sent to the asylum, and that his expenses there should be a charge against the county sending him. The Legislature, it is true, at that time gave the county so sending him a right of action over against the county where he lived ; but this was not any element in, or foundation for, the proceedings-which resulted in the original commitment. It was a manner of relief which at the time the Legislature deemed proper to give to the-county of Jefferson, and there seems to us to be no doubt that the Legislature had a perfect right, if it wished, to cancel this relief, shift the responsibility for the maintenance of the insane criminal, and make it a charge either solely upon the county of Jefferson, or, if it saw fit, upon the county of Oswego, or, as a matter of fact it has done since, a charge upon the state at large. This was a subject for the consideration and determination of the Legislature, and we discover no element of contractual or vested rights in favor of the plaintiff and against the defendant, binding upon the Legislature, and preventing it from doing as we think it did do.
In the second place, however, it is urged that Briggs was a pauper, and therefore his support was a charge against the defendant. We think, however, that the plaintiff has failed to sustain its action upon that theory, assuming that its premises as to the pauperism of Briggs are well laid. Under the general statutory provisions applicable to the subject, there was originally, at least, a distinction between town and county poor in the county of Oswego; and said Briggs, by reason *714of his residence in the town of Sandy Creek, would be a charge upon the town, rather than upon the county. The board of supervisiors had the power to abolish this distinction between town and county poor by making and filing such determination. We think, that if, in the county of Oswego, the general rule had been modified, and the distinction in question abolished, by the affirmative action of the board of supervisors, it rested with the plaintiff to give proper and adequate proof of such change. This it failed wholly to do.
It is urged that the action of the board of supervisors of the defendant in auditing and causing to be paid for several years the claims made by the plaintiff for the support of Briggs may be taken and regarded as an admission of liability which will take the place of other evidence. We are, however, unable to assent to this doctrine. No adequate basis for liability upon the part of the. defendant for these charges existed, independent' of statutory provision. The rights and obligations of the defendant were defined by such statutes, and we regard it as too well settled to require discussion or citation of authorities that the board of supervisors did not have any general power in such matter as this to bind their county to an obligation and liability which did not otherwise exist.
In accordance with these conclusions, we think the judgment appealed from should be affirmed, with costs.
Judgment affirmed, with costs. All concur, except WILLIAMS, J., who dissents in opinion, in which McLENNAN, P. J., concurs.