BARTCH, J.
TMs action was brought to recover a certain snm for the care and maintenance of a sick and dependent poor person. The allegations of the complaint show, substantially, that the parties to this suit are municipal corporations; that one Thomas Ray, a non-resident, on February 9, 1902, he being then seventy-four years of age, applied to Ogden City for aid and assistance; that he was physically infirm, sick, destitute, and in need of food, clothing, and medical attendance ; that he had no means with which to furnish himself with care or necessaries of life; that Ogden City notified Weber county of his totally helpless condition, and demanded that the county take charge of and care for him; that the county, through its commissioners, refused to do so; and that thereupon the city cared for him, and, in doing so, expended the sum of $17.42, for which sum a claim was duly presented to the board of commissioners of said county, and by them rejected, and payment therefor refused. To this complaint the defendant interposed a general demurrer which was sustained, and the action dismissed. This appeal is from the judgment.
The principal question presented is whether, under 1 our laws, it is the duty of the county commissioners to provide and care for transient or non-resident poor found within their county in a helpless condition. The statutory provisions relating to the duties and powers of boards of county commissioners are, so far as material here, as follows: Section 511, Revised Statutes 1898, subd. 40, reads: “To provide for the care and maintenance of the indigent sick and otherwise dependent poor of the county; to erect, officer, and maintain hospitals and poorhouses, in its discretion, or otherwise to provide for the same; and for such purposes to levy the necessary property tax, or poll tax, or both; provided, that the board of county commissioners shall appoint (not let to the lowest bidder) some suitable [132]*132person or persons to take care of and maintain suck hospitals and poorhouses, and the board shall also appoint (not let to the lowest bidder) some suitable graduate in medicine to attend such" indigent sick or other dependent poor.” Subdivision 41 reads: To provide a farm in connection with the county hospital or poorhouse, and make regulations for working the same.” And as to- what are proper county charges, section 538, subd. 7, provides: “The necessary expenses incurred in the support of the county hospitals, poorhouses, and the indigent sick and otherwise dependent poor, whose support is chargeable to the county. ’ ’
It will be noticed that, under subdivision 40, it is the duty of the board of county commissioners ‘‘ to provide for the care and maintenance of the indigent sick and otherwise dependent poor of the county.” It is insisted for the- respondent that this language does not include non-resident paupers; that the statute was intended to confer jurisdiction upon a board of county commissioners to provide and care only for paupers who are residents of the county; and that such board owes neither a legal nor a moral duty to non-resident paupers. Carrying this contention to its legitimate conclusion, and in view of the action of the board in this instance, it means that, no matter what the exigency, such a board owes neither -a'legal nor a moral duty to a pauper who is not an actual resident of the county of such board, even-though he may have an actual and legal residence in some other county of the State, and even though such pauper may have met with a. misfortune from which he would perish before aid from the county of his residence could reach him. This, indeed, would be a cold, rigid, and harsh construction of the statute, and one which cannot receive our judicial sanction. It cannot be, nor does the context warrant us to hold, that the Legislature, by the use of the words “dependent poor of the county,” intended to withhold aid in cases of emergency from such unfortunate beings in all counties except the county of legal residence. There is no [133]*133express language in tlie statute which renders such a construction imperative, and, in the absence of suchi language, we must refrain from imputing to that co-ordinate branch of the government an intent so much at variance with the dictates of humanity and all human sympathies. If, then, the statute, in such helpless eases, does not exclude non-residents of the county where application for aid is made, who are residents of other counties of the State, then, by parity of reasoning, does it not include, under similar circumstances, unfortunates who may ehance to have their legal residence without the State? The same provisions of the statute apply in either case. Nor is there anything in any provision of law on this subject which militates against our interpretation of the statute. The enactment was made 2 in the interests of humanity and mercy, and must receive a liberal construction, so as to carry into effect the humane and benevolent policy adopted by the Legislature. Evidently the intention of the law-makers was to' provide a mode for the relief of poor and suffering humanity, and there is. no requirement that the recipient of the bounty must have an actual legal residence in the county before the board of commissioners can act. Where a person is found within a county who is “indigent, sick and otherwise dependent poor,” it is the duty of such a board to render such aid and assistance as necessity demands. Where, however, the applicant for aid is a non-resident, it is doubtless- also the duty of such board to remove him, as soon as-3 practicable, to the county or State of his residence. If, in any case, the emergency is such as to require it, and upon proper application the board refuses to act, and some other party then furnishes necessary and requisite aid, we, in such event, see no good reason why the county, refusing to perform its statutory duty, should not be held liable for the expenses necessarily incurred. We think, under our laws, such liability, under such circumstances, results, by implication, because of the dereliction of legal duty. ‘ ‘ Where it is by statute [134]*134made the duty of • overseers to relieve the poor in distress, the manner in which this relief shall he administered is left, in the first instance, to the sound discretion of the overseers, who are bound to act reasonably -and in good faith. This rule applies not only to such paupers as have gained a legal settlement, but also such as are casual residents. And where it is thus made their duty to relieve those requiring support, it is within the scope of their official powers to settle and pay claims made against their town on account of expenses incurred in another town in supporting their paupers.” 18 Am. and Eng. Ency. Law (1 Ed.), 770. And “where á town is made liable by statute for the support of the poor, it is bound, after notice and request of the proper officers, for necessary expenses incurred by an inhabitant of the town for the relief of a, pauper.” 18 Am. and Eng. Ency. Law, 812. In Board of Com’rs v. McFall, 35 Pac. 691, Mr. Justice Sullivan, speaking for the Supreme Court of Idaho, in construing a similar enactment, said: “The statute under consideration is one of mercy and benevolence, and must be liberally construed, with a view to carry into effect its beneficent objects and designs: We think the provisions of said chapter are broad enough to include all indigent sick within a county. The statute does not require that such persons reside within the county any certain length of time, or that they possess any particular qualification, other than that of being indigent sick-or otherwise dependent poor.
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BARTCH, J.
TMs action was brought to recover a certain snm for the care and maintenance of a sick and dependent poor person. The allegations of the complaint show, substantially, that the parties to this suit are municipal corporations; that one Thomas Ray, a non-resident, on February 9, 1902, he being then seventy-four years of age, applied to Ogden City for aid and assistance; that he was physically infirm, sick, destitute, and in need of food, clothing, and medical attendance ; that he had no means with which to furnish himself with care or necessaries of life; that Ogden City notified Weber county of his totally helpless condition, and demanded that the county take charge of and care for him; that the county, through its commissioners, refused to do so; and that thereupon the city cared for him, and, in doing so, expended the sum of $17.42, for which sum a claim was duly presented to the board of commissioners of said county, and by them rejected, and payment therefor refused. To this complaint the defendant interposed a general demurrer which was sustained, and the action dismissed. This appeal is from the judgment.
The principal question presented is whether, under 1 our laws, it is the duty of the county commissioners to provide and care for transient or non-resident poor found within their county in a helpless condition. The statutory provisions relating to the duties and powers of boards of county commissioners are, so far as material here, as follows: Section 511, Revised Statutes 1898, subd. 40, reads: “To provide for the care and maintenance of the indigent sick and otherwise dependent poor of the county; to erect, officer, and maintain hospitals and poorhouses, in its discretion, or otherwise to provide for the same; and for such purposes to levy the necessary property tax, or poll tax, or both; provided, that the board of county commissioners shall appoint (not let to the lowest bidder) some suitable [132]*132person or persons to take care of and maintain suck hospitals and poorhouses, and the board shall also appoint (not let to the lowest bidder) some suitable graduate in medicine to attend such" indigent sick or other dependent poor.” Subdivision 41 reads: To provide a farm in connection with the county hospital or poorhouse, and make regulations for working the same.” And as to- what are proper county charges, section 538, subd. 7, provides: “The necessary expenses incurred in the support of the county hospitals, poorhouses, and the indigent sick and otherwise dependent poor, whose support is chargeable to the county. ’ ’
It will be noticed that, under subdivision 40, it is the duty of the board of county commissioners ‘‘ to provide for the care and maintenance of the indigent sick and otherwise dependent poor of the county.” It is insisted for the- respondent that this language does not include non-resident paupers; that the statute was intended to confer jurisdiction upon a board of county commissioners to provide and care only for paupers who are residents of the county; and that such board owes neither a legal nor a moral duty to non-resident paupers. Carrying this contention to its legitimate conclusion, and in view of the action of the board in this instance, it means that, no matter what the exigency, such a board owes neither -a'legal nor a moral duty to a pauper who is not an actual resident of the county of such board, even-though he may have an actual and legal residence in some other county of the State, and even though such pauper may have met with a. misfortune from which he would perish before aid from the county of his residence could reach him. This, indeed, would be a cold, rigid, and harsh construction of the statute, and one which cannot receive our judicial sanction. It cannot be, nor does the context warrant us to hold, that the Legislature, by the use of the words “dependent poor of the county,” intended to withhold aid in cases of emergency from such unfortunate beings in all counties except the county of legal residence. There is no [133]*133express language in tlie statute which renders such a construction imperative, and, in the absence of suchi language, we must refrain from imputing to that co-ordinate branch of the government an intent so much at variance with the dictates of humanity and all human sympathies. If, then, the statute, in such helpless eases, does not exclude non-residents of the county where application for aid is made, who are residents of other counties of the State, then, by parity of reasoning, does it not include, under similar circumstances, unfortunates who may ehance to have their legal residence without the State? The same provisions of the statute apply in either case. Nor is there anything in any provision of law on this subject which militates against our interpretation of the statute. The enactment was made 2 in the interests of humanity and mercy, and must receive a liberal construction, so as to carry into effect the humane and benevolent policy adopted by the Legislature. Evidently the intention of the law-makers was to' provide a mode for the relief of poor and suffering humanity, and there is. no requirement that the recipient of the bounty must have an actual legal residence in the county before the board of commissioners can act. Where a person is found within a county who is “indigent, sick and otherwise dependent poor,” it is the duty of such a board to render such aid and assistance as necessity demands. Where, however, the applicant for aid is a non-resident, it is doubtless- also the duty of such board to remove him, as soon as-3 practicable, to the county or State of his residence. If, in any case, the emergency is such as to require it, and upon proper application the board refuses to act, and some other party then furnishes necessary and requisite aid, we, in such event, see no good reason why the county, refusing to perform its statutory duty, should not be held liable for the expenses necessarily incurred. We think, under our laws, such liability, under such circumstances, results, by implication, because of the dereliction of legal duty. ‘ ‘ Where it is by statute [134]*134made the duty of • overseers to relieve the poor in distress, the manner in which this relief shall he administered is left, in the first instance, to the sound discretion of the overseers, who are bound to act reasonably -and in good faith. This rule applies not only to such paupers as have gained a legal settlement, but also such as are casual residents. And where it is thus made their duty to relieve those requiring support, it is within the scope of their official powers to settle and pay claims made against their town on account of expenses incurred in another town in supporting their paupers.” 18 Am. and Eng. Ency. Law (1 Ed.), 770. And “where á town is made liable by statute for the support of the poor, it is bound, after notice and request of the proper officers, for necessary expenses incurred by an inhabitant of the town for the relief of a, pauper.” 18 Am. and Eng. Ency. Law, 812. In Board of Com’rs v. McFall, 35 Pac. 691, Mr. Justice Sullivan, speaking for the Supreme Court of Idaho, in construing a similar enactment, said: “The statute under consideration is one of mercy and benevolence, and must be liberally construed, with a view to carry into effect its beneficent objects and designs: We think the provisions of said chapter are broad enough to include all indigent sick within a county. The statute does not require that such persons reside within the county any certain length of time, or that they possess any particular qualification, other than that of being indigent sick-or otherwise dependent poor. A citizen of another State who comes into this State and becomes sick, and is pecuniarily unable to provide for himself proper medical aid, attendance, and support while so sick, coimes within the provisions of said chapter. ’ ’ In Seagraves v. City of Alton, 13 Ill. 366, Mr. Chief Justice Treat, speaking for the court, said: “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. [135]*135charter enjoins npon 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. . . . Paupers are not to be turned over to the uncertain charities of individuals. The law makes them a charge on the cor- - poration, 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. 18 Am. and. Eng. Ency. Law, 809, 810; Trustees v. Ogden, 5 Ham. 23; Overseers of Taylor v. Overseers of Shenango, 114 Pa. 394, 6 Atl. 475; Knight v. Fairfield, 70 Me. 500; Stone v. Town of Glover (Vt.), 15 Atl. 334; Board of Supervisors v. Gilbert (Miss.), 12 South. 593; Shreve v. Budd, 7 N. J. Law 431; Overseers v. Overseers, 3 Serg. & R. 117; Danforth v. Turnpike Road, 12 Johns. 227; Bank of Columbia v. Patterson’s Adm’r, 7 Cranch 99, 3 L. Ed. 351; Overseers v. Overseers (Pa.), 18 Atl. 549.
We are Of the opinion that there was such an emergency in the present case as justified the plaintiff in furnishing aid and assistance, upon the refusal of the 4 board of commissioners to do so, and that, under the circumstances, the defendant became liable for the expenses incurred; there being nothing to show that anything unnecessary was done or furnished.
Nor, under the facts and circumstances disclosed 5 by the record, was the appellant bound, instead of furnishing immediate relief, to resort to mandamus to compel the respondent to perform its duty.
The action of the court in sustaining the demurrer and dismissing the suit was therefore erroneous, and the judgment must be reversed, with costs, and the case remanded, with directions to the court below to overrule the demurrer and proceed in accordance herewith. It is so ordered.
BASKIN, O. J., concurs.