The views stated by Judges Parker and Fullerton in their dissents receive my hearty concurrence, but there is a statement in the majority opinion apparently overlooked by them upon which it seems advisable that something be said, even at the risk of undue prolixity in the report of this decision. I am in sympathy with the generous humanitarian motives actuating the majority; but we are governed by law and in this instance, not only bystare decisis, but by positive law, the statute. The story told in the complaint reads like the Biblical *Page 430 parable of the Good Samaritan; but there are no equities in such a case as this.
In the majority opinion it is said:
"We are convinced that the rule laid down in the case ofGuerin v. Clark County, supra, is not supported by either the laws of this state or the authorities generally and that case is overruled."
It is sought, by determining that the injured person in this case was not technically a pauper, nor one defined by statute to be a pauper, to ground the right of recovery upon Rem. Comp. Stat., § 9986. The law is well settled that the same rules apply to a poor person, indigent person, or a person temporarily in need of emergent aid of any kind in a county or poor district.
"For general purposes the terms `poor person,' `pauper,' `indigent' and `destitute' may be regarded as synonymous.
"The words `pauper' and `indigent' convey the meaning that the person has neither money nor estate, is without credit, and is unable to maintain himself because of inability to work or to obtain employment, . . ." 21 R.C.L., §§ 4 and 5, p. 703-4.
"The liability of towns and counties for the support of the poor is strictly statutory, and, however equitable the claim, there can be no recovery without compliance with the statutory prerequisites." 30 Cyc. 1153.
To the rule that there can be no liability on the part of a town or poor district to reimburse a third person who voluntarily affords relief to a pauper, even though there is an immediate necessity for relief before the poor officer can be communicated with, and that no action therefor will lie by him against the town or district unless it is expressly given by statute, or is founded on an express or implied contract, as stated in 48 C.J. 537, besides our own Collins case, supra, are cited cases from Arkansas, Colorado, Connecticut, Illinois, Indiana, Iowa, Kentucky, Maine, Massachusetts, *Page 431 Mississippi, Missouri, Nebraska, New Hampshire, New York, North Dakota, Ohio, Pennsylvania, Rhode Island, South Dakota, Vermont, Wisconsin and England. Some examination shows the cases cited to be both early and recent ones.
To the point that, where the statute specifically provides what persons county officers are bound to relieve and the nature of the services for which the county shall be liable, no recovery can be had for medical services not rendered in accordance with the terms of the statute; and that a town or poor district is not liable for medical service voluntarily furnished for the relief of a pauper without any contract with, or request from, the officers of the poor, or someone in authority, as stated in 48 C.J. 539, are cited, besides our own Guerin case, supra, recent and early cases from Oklahoma, Saskatchewan, Arkansas, Indiana, Iowa, Maryland, Massachusetts, Nebraska, New Jersey, New York and Vermont. In the Arkansas case cited, Cantrell v. ClarkCounty, 47 Ark. 239, it was said that the law presumes the services are bestowed in charity where they are rendered by a physician to a poor person in an emergency and no action against the county will lie therefor. See, also, 21 R.C.L. 712-13.
The provisions for the relief of paupers, or indigent persons, are purely statutory, and the power exercised is one which rests primarily in the sovereignty and is purely governmental in its nature. See Notes, 4 Ann. Cas. 625; Notes, Ann. Cas. 1913C 79.
In the case at bar, there was no request, order or subsequent adoption or ratification of the treatment by appellant, made by any statutory county agency. In such case, under our statute and the law generally, without an exception that has been discovered by annotators or judicial writers, no liability can be imposed upon the public. *Page 432
Our previous decisions, which are now casually overruled by the majority, were not only in strict conformity to the statute, but were in harmony with, apparently, almost universal authority. Although the former decisions did not review the authorities generally, they were probably examined and the principle seemed so well settled that it was not considered necessary so to do.
For these additional reasons, I also dissent.