The 9th section of the “ Act to incorporate the city of Alton,” approved the 21st of February, 1837, contains this provision: “ The common council shall provide for, and take charge of, all paupers within the limits of said city; and to accomplish this object, they shall have the exclusive right, power, and authority to license and tax all ferries, taverns, merchants, auctioneers, pedlers, grocers, venders of spirituous liquors and wines, other public houses of entertainment, theatrical and other shows and performances, within the limits of said city.”
This provision imposes on the city the duty of supporting the paupers within its limits, and grants it in return an ample equivalent. The obligation is a legal one, and may be enforced against the corporation. It is enjoined by positive law, and its observance does not rest in the discretion of the corporate authorities. The general provisions of the statute declaring who shall be considered paupers, and requiring then relatives, when of sufficient ability, to maintain them, are applicable to the city of Alton; but the particular directions of the statute to overseers of the poor and justices of the peace in regard to paupers, have no force within its limits. Upon the passage of the charter, the county of Madison ceased to be liable for the support of paupers in the city; and the county authorities had no longer any superintendence or control over them. It became the duty of the common council to make competent provision for the support of paupers within the city. But a failure on their part to perform the duty will not absolve the corporation from responsibility. Where the law imposes an obligation on a corporation, which it refuses to discharge, it may be held liable civilly at the suit of a party who sustains damages in consequence of its refusal. In legal contemplation, a corporation assumes to perform what its charter enjoins upon it, and it is subject to answer in a proper action for its default. And the law is now well settled, however it may have been formerly, that an action of assumpsit may be maintained against a corporation upon an implied contract. The Bank of Columbia v. Patterson’s Administrator, 7 Cranch, 299; Danforth v. Schoharie Turnpike Co. 12 Johns. 227; Overseers v. Overseers, 3 Serg. & Rawle, 117; The Baptist Church v. Mulford, 3 Halstead, 182.
It is undoubtedly competent for the corporation to make such provision for the support of its paupers, as it may deem advisable. It may establish a poor-house for the purpose, and take charge of the paupers directly; or it may contract with individuals to support them, at a stated compensation. But she must, in some way, make adequate and reasonable provision for their maintenance. And, except in extreme cases, she cannot be made responsible to an individual for any relief granted to a pauper, until an opportunity has been afforded her to make the necessary provision. It is only upon her refusal or neglect so to provide, after a proper request has been made for the purpose, that she can be held liable in a civil action. An individual has not a right to render services, or provide food or raiment for a pauper, at the expense of the corporation, until her authorized agents have been notified, and have failed to furnish the necessary relief. It is only when the corporation is clearly in default, that she can be held liable upon an implied contract. It is possible that cases may occasionally arise, where services may be rendered to a pauper, without a previous application to the corporation, for which the party may be entitled to compensation, such as a severe accident, requiring prompt and immediate attention. Paupers are not to be turned over to the uncertain charities of individuals. The law makes them a charge on the corporation, and it is bound to provide them a comfortable support. If she will not do this in the first instance, individuals may provide for their necessities, and look to the corporation for remuneration. The case of the Trustees of Cincinnati v. Ogden, 5 Hammond, 23, asserts the correct doctrine on this subject. In that case, Ogden supplied a pauper with necessaries, after an unsuccessful application to the trustees, and then brought an action of assumpsit against the township to recover compensation. The court said, “ The next question to be examined is, ■ whether an individual, who has furnished necessaries to a pauper, can maintain an action against the township. The solution of this question must depend upon the nature of the obligation, which rests upon a township to support its poor. If it be merely in the nature of a moral obligation, then no action can be maintained, unless there has been a previous request, or an express promise on the part of the township. But if, on the other hand, it be an absolute legal obligation,- then the law implies a promise, and an action can be sustained. We are of the opinion that it is of this latter description. The supreme power of the State, by legislative enactment, has imposed the obligation. It is of as much binding force as the obligation of a parent to support his child, or a husband his wife. We do not say, that in every case, where an individual furnishes necessaries to a pauper, he can maintain an action against the township. Complaint must, in the 'first instance, be made to the overseers of the poor. If these neglect their duty, or if the trustees of the township refuse to make the necessary order, it is right and proper for an individual to furnish a distressed pauper with the necessary relief, and justice, sound policy, and law, require that the individual performing the benevolent act should be remunerated.” In Shreve v. Budd, 2 Halstead, 431, it was held, that an action might be maintained to recover the expenses of supporting a pauper, incurred after due notice to the overseer of the poor, and neglect by him to provide the necessary relief. In Tomlinson v. Bentall, 5 Barnewall & Cresswell, 738, the parish was held liable for a surgeon’s attendance upon a pauper, after neglect by the parish officers to procure medical relief. See also Wennall v. Adney, 3 Bosanquet & Puller, 247. The decisions in New York and Vermont, referred to on the argument, were made under statutes essentially different in them provisions, from the one imposing the duty on the city of Alton of supporting its paupers ; and they need not be further noticed. It was decided, in Rouse v. The County of Peoria, 2 Gilman, 99, that a contract for the support of a pauper is not obligatory on a county, unless it is made by a majority of the overseers of the poor of the district, and reported to the County Court for approval. That was the only question in the case, and with the decisión of it we are content. It was intimated, however, that where the overseers of the poor, or the County Court, refuse or neglect to discharge their duty concerning a pauper, the proper remedy is by writ of mandamus, and not by suit against the county. That expression was not called for by the facts of the case, and it cannot, therefore, be considered as a decision of the court. But it is not necessary for the determination of this case, to enter upon the discussion of the question, as the various regulations of the statute respecting the support of county paupers do not apply to the city of Alton.
In the present case, the evidence tended to the conclusion, that Reeves was a pauper, and properly chargeable to the corporation. It also clearly appeared that the plaintiff, with whom Reeves resided, made repeated applications to the city authorities for relief, which were refused. If Reeves was a pauper in fact, the plaintiff, by continuing to maintain him, pursued the course that humanity prompted, and the law approved, and he ought to be remunerated. The jury were instructed that he could not recover, unless the services were rendered in pursuance of an express contract with the corporation. This instruction was erroneous ; and as it may have controlled the finding of the jury, the judgment must be reversed, and the cause remanded for further proceedings.
Judgment reversed.