I am unable to concur in the foregoing opinion. While the humanity and sympathy involved therein are commendable, still it is a question of the legal, and not the moral, duty of the defendant county. Its only duty to paupers is that imposed by statute.
It should be noted that subdivision 40, section 511, Revised Statutes 1898, is substantially the same as subdivision 5, section 21, chapter 131, page 522, Laws 1896; the same being an amendment of, or substitution for, subdivision 6, section 187, Comp. Laws 1888, as follows “(6) To provide for the care and maintenance of the indigent sick or otherwise dependent poor, transients and residents of the county, erect, officer, and maintain hospitals and poorhouses in their discretion therefor, or otherwise provide for the same; and for such purposes, annually at the time appointed by law for the levying of taxes for county purposes, to levy the necessary property tax therefor,” etc. — substantially same as present statute.
Our present statute empowering the board of county commissioners “to provide for the care and maintenance of the indigent sick and otherwise dependent poor of the county” would seem by its very terms to exclude the contention made by the plaintiff city that this includes transients or the poor of some other county or State. ‘ ‘ The indigent sick or otherwise dependent poor of the county” are those belonging to the county by residence or settlement in the county, and not transients temporarily in the county, and having a residence or settlement in some other county of this or some other State. But assuming, for the purposes of the argument, that there is some doubt or ambiguity as to the meaning of the language.in question, reference to the original statute embodied in this section of the Code would then be permissible for the purpose of making clear or aiding the construction to be given it. Meyer v. Western Car Co., 102 U. S. 1, 26 L. Ed. 59; Viterbo v. Friedlander, 120 U. S. 707, 7 Sup. Ct. 962, 30 L. Ed. *137776; United States v. Lacher, 134 U. S. 624,10 Sup. Ct. 625, 33 L. Ed. 1080; Bate Refrig. Co. v. Sulzberger, 157 U. S. 1, 15 Sap. Ct. 508, 39 L. Ed. 601; Pratt v. Street Com’rs (Mass.), 2 N. E. 675; Heck v. State (Ohio), 9 N. E. 305; Black, Int. of Laws, sec. 136. Subdivision 6, section 187, Comp. Laws 1888, referred to in the footnotes to the corresponding section of the Revised Statutes of 1898, reads: “The indigent sick or the otherwise dependent poor, transients and residents of the county.” Is the present statute, from which the words “transients and residents” are omitted, to receive the same construction as the earlier statute? In other words, did the Legislature of 1896. which amended or changed the former statute, intend to make no change when it enacted substantially what is now subdivision 40, section 511, Revised Statutes 1898! It is true that Logan Co. v. McFall (Idaho), 35 Pac. 691, expresses the view that a statute similar to our own is broad enough to include the transient poor of a county; yet the same is largely dictum, for the reason that, even if the opposite conclusion had been reached, the decision of reversal would have been the same, under the particular facts of that case. It would seem clear that the change in phraseology of this statute was intended to exclude transients from the benefits of support by the county. If not, why make doubtful that which was before clear? The obligation of a county to support the indigent sick or otherwise dependent poor is purely statutory, and the case must fall fairly “within the liability created pursuant to and in the manner prescribed by the statute,” to render the county liable. Lander Co. v. Humboldt Co. (Nev.), 32 Pac. 849; Patrick v. Town of Baldwin (Wis.), 88 N. W. 274; Hamlin Co. v. Clark Co. (S. D.), 45 N. W. 329; Board of Comr’s Sweetwater Co. v. Board of Com’rs Carbon Co. (Wyo.), 44 Pac. 66; St. Luke’s Hospital Ass’n v. Grand Forks Co. (N. D.), 77 N. W. 598; Board of Com’rs of Rio Grande Co. v. Phye (Colo. Sup.), 59 Pac. 55; Hamilton Co. v. Meyers (Neb.), 37 N. W. 623; Washoe Co. v. Eu*138reka Co. (Nev.), 60 Pac. 376; Mansfield v. Sac Co. (Iowa), 14 N. W. 73; 22 Am. and Eng. Ency. Law (2 Ed.), 1000. That the liability of a county for the support of the poor is purely statutory, and depends upon the terms of each particular statute, is evident from the following early decisions, some of which are cited and relied upon by plaintiff in this case: Overseers of Taylor v. Overseers of Shenango, 114 Pa. 394, 6 Atl. 475; Kelly Tp. v. Union Tp., 5 Watts & S. 535; Minklaer v. Rockfeller, 6 Cow. 276; Rouse v. Co. of Peoria, 2 Gilman 99; Palmer v. Vandenbergh, 3 Wend. 193; Everts v. Adams, 12 Johns. 352; Otis v. Strafford, 10 N. H. 352; Bentley v. Com’rs, 25 Minn. 259; Lamson v. Newburyport, 14 Allen 30; Kellogg v. St. George, 28 Me. 257. A similar rule prevails in reference to the liability of a county for the support of its prisoners. Hendricks v. Chautauqua Co. (Kan.), 11 Pac. 450. The decision of Board of Sup’rs of Lee Co. v. Gilbert (Miss.), 12 South. 593, cited by plaintiff, is so brief that it cannot be determined whether it is supported by statute, or whether mere sentiment is permitted to outweigh logic. Knight v. Fairfield, 70 Me. 500, was probably decided upon a statute, although the decision, upon its face, does not so show, except that Lamson v. Newbury-port, supra, is cited in support of the opinion.
Even if we should take the view that our statute includes support for transient paupers, another serious question is whether recovery upon an implied promise could be had against the county by one who had voluntarily rendered support to such persons. Some cases have been decided squarely on the ground that an action on an implied contract cannot be maintained against a corporation simply because it is a corporation, and not a private person. As was pertinently asked in the case of The Baptist Church v. Mulford, 3 Halst. 182, “could there be a greater anomaly than that the law should imply a promise against a natural person for the sake of justice, and not against a corporation, when the reason is the same?” Without discussing the difference, if *139any, between actions on implied contracts against private corporations and public or municipal corporations, and passing to a consideration of assumpsit against public corporations for tbe support of paupers, distinction should be noted between eases where an implied promise has been raised by reason of some act or acts by an agent of the municipality from which a contract can be reasonably inferred (Beach v. Town of Neenah, 90 Wis. 623, 64 N. W. 319), and cases where assumpsit against a municipality is upheld merely upon the performance by a private person of a duty resting upon the corporation (Seagraves v. City of Alton, 13 Ill. 370. Contra, Patrick v. Town of Baldwin, supra, and other cases cited; also 22 Am. and Eng. Ency. Law (2 Ed.), 1008, 1011, and cases cited). According to the opinion in Gourley v. Allen, 5 Cow. 644, assumpsit would lie for services performed in an emergency by a private person for a pauper, under the system in vogue in England. In that ease the difference is pointed out between the laws of the two countries; the English parish overseers being appointed pursuant to 43 Eliz., e. 2, and authorized to raise money sufficient for their needs by “making a rate” from time to time. Under that system “they can never, therefore, allege a want of power or means to afford the required relief.” In that case the conclusion is reached that “we cannot take the English authorities for our guide in these matters, because the office and duties of our overseers of the poor are very different from the office and duties of the parish overseers of England.”
Section 2593, Revised Statutes 1898, limits the rate of taxation for all county purposes not to exceed five mills on the dollar, and if the doctrine is to be established that all paupers, residents and transients, carry with them an implied credit to bind the county for all necessary food, clothing, medicine, lodging, medical and other care, not furnished by the county upon application, it would be possible for designing persons to exhaust the entire revenue of a county for the support of *140such paupers, and leave no funds in the treasury for any other county purpose. Besides, if every pauper is authorized to pledge the credit of a county for necessaries not furnished by the county after demand, it would transfer the question of determining who should be supported, and the extent and manner thereof, from the board of county commissioners to the forum of the courts. Instead of having a uniform administration of public bounty, equalized among the applicants according to their respective needs and' the financial ability of the county, we would then have a fluctuating standard, varying according to the judgment or prejudices of the jurymen trying such cases. Again, if a mere voluntary courtesy to a pauper will uphold assumpsit against a county, the principle must be declared exceptional, and not to be extended by analogy to the voluntary performance by a private person of any neglected duty developing upon a county, such as repairing bridges and highways. The obligations of a county would have to be restricted also to the financial ability of the county, in view of all its other duties. While such cases as the one at bar appeal strongly to the humanity of a court to adopt a rule which will afford immediate relief to such unfortunates, the question for us, after all, is not what laws should be enacted by our Legislature, but what have been enacted. Other States, older and more populous than our own, have elaborate “poor laws,”- requiring each county to take care of its own poor and give temporary relief to transients. In Utah we have not felt such urgent need for a complete poor law. The people have been thrifty, and very generally owners of their own homes. To a large extent, wealth has been equally divided. It is also the history of the State that there have been organized and existing in nearly every town or city societies for the relief of the dependent poor. But we have now reached a stage of growth when, for our larger cities and railroad centers, there is urgent need of additional legislation for the support of the poor. The remedy is with the Leg*141islature, and not with the courts. It is our duty to construe, and not make, the laws. Transient poor should at least receive temporary care, but we do not feel at liberty to read the word “transient” into the statute after the same has been deliberately stricken out. Legislation should render unnecessary any contention between city and county over which should take charge of the poor therein. If there be danger that overseers of the poor will neglect their duty, and if mandamus to compel performance of such duty is an inadequate remedy, which it would be in all emergency cases, at least, then a rule for relief should be adopted which will safe-guard the county against extravagance and imposture, and at the same time give an effectual remedy to the needy poor. The Legislature, and not the courts, should determine under what circumstances any person may render assistance to a pauper at the expense of the county. Certainly a system can and should be devised that will not permit a haggling between city and county as to which shall render a little assistance to such unfortunates as Thomas Ray, or the recurrence • of such an instance as involved in Mappes v. Iowa Co. (Wis.), 1 N. W. 359, of the blind old lady, nearly. 100 years old, driven from “post to pillar, and pillar to post,” between the penurious poorhouse and her unnatural offspring. Such cases go far to prove that it was not a mere pigment of sympathetic fancy on the part of Dickens in creating in Our Mutual Friend the character of Betty Higden, the brave little creature to whom the “good Samaritan” had become a “pursuing fury,” and who fought all her life against the parish poorhouse, and who wanted to die free from it, willing in her fatal illness to give her last penny as a bribe to the officer not to take her to the poorhouse, and whose dying request was ‘ ‘ nor let the parish touch me, nor yet so much as look at me.”
I am of the opinion that the judgment of the trial court should be sustained.