prompt medical and surgical attention to save his life. That the said defendant, acting through one of its said agents, namely, A. J. Neilsen, sheriff of said county, took charge and custody of the said George Perkins on behalf of said defendant. That on said date, and while the said Perkins was in the charge and custody of the said defendant acting through its said agent, the sheriff of said county, this plaintiff, with the full knowledge and consent of the defendant, acting through its agent aforesaid, in order to save the life of the said Perkins, amputated the injured arm of the said Perkins as such physician and surgeon, and then and there gave the said Perkins the surgical and medical attention required; the said plaintiff being then and there assisted by Dr. W. A. Miller. That at said time the defendant was not in session, and no other notice could have been given than to its agent aforesaid." That the said medical and surgical attention so rendered and performed was reasonably worth the sum of $50, and that the plaintiff on February 8, 1905, filed with the county clerk of said county and presented to the defendant a verified claim against the county for the medical and surgical services so rendered, and "that a copy of said claim is not attached hereto for the reason that the same has been mislaid or lost. That the claim has not been paid, and that the amount thereof, together with interest thereon from February 8, 1905, is due from defendant to the plaintiff."

There is a second cause of action, in which it is alleged that Dr. W. A. Miller, a duly licensed and practicing physician and surgeon, assisted Dr. Denebrink in performing the operation for which he made a charge of $25, and which claim was presented in the same manner to the board of commissioners, and not paid; the other allegations being practically the same, except that this claim has been duly assigned to Dr. Denebrink, who brought the suit.

1. Section 1260, Rev. St. 1899, is as follows: "When any non-resident of this state, or any other person not coming within the definition of a pauper, shall fall sick in any county in this state, not having money or property to pay his board, nursing or medical attendance, the county commissioners, upon notice thereof, shall provide such assistance as they may deem necessary, by contract or otherwise; and if such person shall die, said commissioners shall cause to be given to such person decent burial. And said commissioners shall make such allowance for board, nursing, medical attendance and burial expenses as they may deem just and equitable; provided, that claims for such services shall be presented and acted upon in the same manner as other claims against the county; provided further, that said commissioners may, in their discretion, contract with some suitable person or persons, for

such services, in the case of all sick persons coming within the provisions of this section."

It is urged that no notice was given to the board of county commissioners, and that the services were not performed by the request of the board, or of any one having authority to bind the county. The board not being in session at the time of the accident, it is reasonable to presume that notice could not have been given to the board of the condition Perkins was in until long after the possibility of saving his life had passed. The case was one of emergency, so alleged in the petition and conceded by the demurrer, requiring prompt action, and Dr. Denebrink took charge of the patient for the purpose of amputating, and he and his assistant did amputate, the arm, all of which was necessary to save the life of the injured man, and all of which was done with the knowledge and consent of one of the duly-appointed agents of the county to oversee and provide for the poor and indigent of said county. It is urged, in behalf of plaintiff in error, that the agent was such for a restricted purpose, and that his authority extended only to the poor and indigent residing within the county, and that he had no authority to act or bind the county in cases coming under section 1260, supra. Such, undoubtedly, is a correct interpretation of the statute; but the liability of the county arises in such cases by reason of the failure of the county to furnish a physician when the exigencies of the case requires immediate surgical and medical treatment. The amputation was done in order to save the life of the injured man. The services were urgent, imperative, and admitted of no delay. The board was not in session, and there was no opportunity to notify it, or for it to take action, until it reconvened. The provision in such cases, that "the county commissioners upon notice shall provide such assistance as they may deem necessary," is purely one of regulation in view of the attending circumstances in each particular case, and does not make one a volunteer merely who out of a spirit of humanity in an emergency case furnishes succor until the proper authorities can act in the premises. The liability and duty to care for the nonresident sick is statutory, and exists by reason of their condition. The statutory notice serves as an aid to the county in the proper performance of this duty in caring and providing for the person entitled thereto in pursuance of and in accordance with the statutes regulating such matters. Such knowledge may come to the board in other ways, but that would not lessen its obligation or duty to perform its trust, nor lessen the county's liability. The notice contemplated is not for the purpose of fixing the liability of the county for necessary assistance rendered by third parties prior to its being given, but to enable the commissioners to render prompt assistance in deserving cases. The very ground upon which the

board is authorized to give assistance is that the person is sick and has not money or property to pay his board, nursing, or medical attendance, and, that fact being known to the person who comes to his relief, until the board can be notified so that it may provide for his wants, it must be assumed that the person furnishing the relief did so with the expectation of being reimbursed by the county. We must presume that within the terms of this section the provision authorizing assistance covers the time between his falling sick and a notice of his condition given as promptly as the circumstances of the case will permit. The Legislature evidently intended this class of cases should be attended to, yet it has failed to point out the method of giving prompt assistance in an emergency case. In such case the object, purpose, and policy of the law is clear, and, although the statute is silent as to the method of giving speedy and needed relief, its object and purpose ought not for that reason to be defeated. As was said by the Supreme Court of Minnesota, in Robbins v. Town of Homer, 103 N. W. 1023, 95 Minn. 201: "It is true that the obligations to provide for the poor are statutory. These, as we have indicated, are matters of regulation. But, when there can be no regulation from the very nature of the case, it must be that necessity will supersede the exercise of statutory authority, and immediate aid for the sick person should be furnished. A deprivation of it might inure not only to injure the poor person, but to the detriment of the public, for delay in the treatment of the injured party might entail added pecuniary burdens."

It is not alleged in the petition that the services were performed at the request of the defendant. As the board of county commissioners were not in session at the time, no such request could be made. The case falls within the exception that such request was necessary for contract liability. It was both the moral and legal obligation of the board to furnish a physician for the injured man, and, upon its failure to do so, Dr. Denebrink and his assistant performed the services which the exigencies of the case required to save a human life, with the expectation of being reimbursed therefor. In such cases there is always a legal presumption of a promise to pay, without any proof that such promise has been made or the services requested by the party sought to be charged. 15 A. & E. Ency. of Law (2d Ed.) 1081. Upon the facts the case is different from Hamilton County v. Meyers, 37 N. W. 623, 23 Neb. 718. In that case the action was for continuous medical treatment, and during the time the services were being rendered the physician gave no notice to the board of county commissioners, although the board was in session in the immediate vicinity of where the destitute person was sick; nor were the services performed by direction of the overseer of the poor. The statute in that case was

different, in that it made it the duty of the overseer to furnish relief to a nonresident falling sick and without means to care for himself. In Robbins v. Town of Homer (Minn.) supra, a case almost identical upon the facts, the question was upon the sufficiency of the complaint. That court said: "It is true that ordinarily there must be a request from a person authorized to make the same to constitute a basis for contract liability; but there are some exceptions to this rule, as where a person lies under a moral and legal obligation to do an act, and another does it for him, under such circumstances of urgent necessity that humanity and decency admit of no time for delay. Here the law will imply a promise to pay, without proof that it has been made, when there was an expectation of reimbursement. 15 A. & E. Ency. of Law (2d Ed.) 1081. A very familiar illustration of this rule is where a person furnishes the means for the burial of the dead, when no request comes from the person legally liable to perform the obligation. In such cases it has been held that the person furnishing the services may recover to the extent of the expenditures incurred. Gould v. Moulahan, 53 N. J. Eq. 341, 33 Atl. 483; Bradshaw v. Beard, 12 C. B. 344; Ambrose v. Kerrison, 10 C. B. 776; Price, 3 Y. & J. 28; Patterson v. Patterson, 59 N. Y. 582, 17 Am. Rep. 384. If Lessard, the poor person in this instance, had died, and the supervisors had been absent, we have little doubt that a person providing for his burial would have a legal claim against the town; and, upon the same reasons, why not a physician whose ministrations in a pressing emergency seek to avoid what may result in his death? The supervisors, upon whom the duty to name the physician was imposed under legal as well as moral obligations, had not provided for the same, and we have no doubt that it should be held that the physician who immediately answered the call of emergency, perhaps to save life, or diminish the increase of expenditure against the public, would have a valid claim for compensation. Having reached the conclusion that it was the duty of the supervisors of the defendant town to provide a physician, it reasonably appearing that an emergency arose when it was impossible for them to do so. we hold that the conclusion follows that there was a legal duty on the part of the town to pay such reasonable claims for the services of plaintiff as he may be able to establish, at least until the board of supervis ors can be notified and appropriately act in the premises."

The opinion in that case meets the argument of the plaintiff in error so completely that it would seem unnecessary to discuss this branch of the case any further. It was sufficient to allege the facts showing the immediate necessity for the services rendered and the impossibility of a precedent request or promise to pay. To hold that such re

quest was necessary to maintain the action would, under the circumstances as shown in the petition, be inhuman and shocking to all sense of decency, and render the statute less effective than it was evidently intended. Such request was in the nature of an impossible condition precedent, and sufficiently appears by allegations in the petition. principle the question is the same as in those cases upon contract where a condition precedent has not been performed and a valid excuse for such nonperformance is alleged. 9 Cyc. tit. "Averment and Fulfillment of Conditions," 719; 4 Ency. P. & P. 629.

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In

2. It is urged that the petition fails to show the presentation of the account sued on to the defendant below. Section 7, art. 16, of the Constitution, provides that: "No bills, claims, accounts or demands against any county shall be audited, allowed or paid until a full itemized statement in writing, verified by affidavit, shall be filed with the officer or officers whose duty it may be to audit the same." It is so provided by section 1062, Rev. St. 1899. The county commissioners were the officers authorized to audit and allow the claim involved in this suit (section 1142, Rev. St. 1899), and it was the duty of the county clerk to file the account, whether audited or not (section 1143, Rev. St. 1899). It is provided by section 1216, Rev. St. 1899, that: "All claims held by a person, or persons. company or corporation against a county, shall be presented for audit and allowance to the board of county commissioners of the proper county, as provided by law, before any action in any court shall be maintained thereon. * * The last provision was construed by this court, in Houtz v. Commissioners, 11 Wyo. 168, 70 Pac. 842, where it is said: "We do not perceive how it is possible to avoid the peremptory language of section 1216, and to permit an action to be maintained within its purview, without positively disregarding the terms of the statute." It appears from the petition that each of the claims sued on was duly verified and filed with the county clerk, the one of Dr. Denebrink on February 8, 1905, and that of Dr. Miller on January 3, 1965, and presented to the defendant. It is further alleged in each count "that a copy of said claim is not attached hereto, for the reason that the same is mislaid or lost." It thus appears that the original verified claims were in the possession of the defendant, and the allegation must refer to the originals, for, if they are where they should be, copies of them could be very easily obtained. The pleader does not, however, rely on the short form of pleading authorized by statute in an action upon an account. Section 3560, Rev. St. 1899. The attaching of a copy of the account as an exhibit would not therefore supply necessary allegations, unless it was expressly made a part of the petition. The allegation in both counts is to the effect that the required sur

gical and medical attendance was rendered on November 28, 1904. No charge is made for anything but services, and those services were rendered on the same day. There is no distinct item for medical attention, and, giving the words a fair and reasonable construction in view of the other allegations of the petition, such attention was coexistent in point of time connected with and necessarily required in the performance of the operation. There is no charge, nor attempt to charge, for medical services or attendance subsequent to that time. It could very properly be said to constitute but one item, for such an operation would carry with it the duty to do all that was necessary to successfully perform it. The demurrer admits that the account was duly verified, filed, and presented to the board for allowance. From the allegations in the petition one item would be all that is necessary in such an account to satisfy the law requiring accounts against the county to be fully itemized. A fair and reasonable construction of the petition would, in the absence of any defense upon the merits, lead one to the conclusion that the account must have been presented for allowance in accordance with the requirements of the statutes. It having been so presented, the right to maintain the action accrued to the plaintiff.

The demurrer was properly overruled, and the judgment will be affirmed. Affirmed.

POTTER, C. J., and BEARD, J., concur.

(75 Kan. 273) CITY OF LEBANON v. ZANDITON et al. (Supreme Court of Kansas. Feb. 9, 1997. Rehearing Denied March 14, 1907.)

1. LICENSES - · OCCUPATIONS-MUNICIPAL ORDINANCES REASONABLENESS.

An ordinance of a city of the third class, levying a per diem license tax upon transient merchants, cannot be held to be violative of the statutory restriction that such ordinances must be "just and reasonable," unless the amount required to be paid is so excessive that it can be said that it is restrictive or oppressive. [Ed. Note. For cases in point, see Cent. Dig. vol. 32. Licenses. $$ 15, 30, 31.]

2. CRIMINAL LAW-TRIAL QUESTIONS JURY-VALIDITY OF ORDINANCE.

FOR

Whether or not an ordinance is void is a question of law.

3. MUNICIPAL CORPORATIONS-ORDINANCESVALIDITY-POLICE POWER-VIOLATION OF

REGULATIONS-PUNISHMENT.

Cities have the power to punish the violation of such ordinances by fine and imprisonment.

Porter, J., dissenting.
(Syllabus by the Court.)

Appeal from District Court, Smith County; R. M. Pickler, Judge.

Action by the city of Lebanon against E. Zanditon and another. From a judgment in favor of defendants, plaintiff appeals. Affirmed.

Lee Monroe and W. F. Schoch, for appellant. J. T. Reed, for appellees.

GREENE, J. The appellant was convicted of violating an ordinance of the city of Lebanon, a city of the third class, which provided for the levy and collection of a license tax for persons doing business within the city. Among other things, it provided that no transient merchant shall be permitted to sell or offer to sell at retail any articles of merchandise usually kept for sale by any merchant or manufacturer of the city within the limits of the city, without first paying a license tax of $10 per day. The penalty imposed for a violation of this ordinance was a fine of not less than $5 nor more than $25 for each offense, and each day's violation should be considered a separate offense.

The defendant introduced evidence tending to prove that the city of Lebanon had a population of about 700; that the annual revenue of the city for the two preceding years, and which was sufficient to pay the expenses of the municipality, did not exceed $1,000 per annum; that the resident merchants whose annual sales ranged from $7,000 to $16,000 did not return a net profit to exceed $1,250 per annum; and that the defendants carried a stock averaging $5,000. Based upon these facts, they contend that a license tax of $10 per day would amount to an annual tax of more than $3,000, and was therefore unjust and unreasonable.

The authority to impose and collect a license tax on merchants is plainly granted to cities of the third class by section 1127 of the General Statutes of 1901, and the only statutory restriction placed upon the council as to the amount of such tax is that it shall be just and reasonable. Gen. St. 1901, § 1128. That this authority was to be used as a means of collecting revenue, as well as regulation, has been placed beyond dispute by the former decisions of this court. Fretwell v. City of Troy, 18 Kan. 271; City of Newton v. Atchison, 31 Kan. 151, 1 Pac. 288, 47 Am. Rep. 486. If, therefore, the ordinance does not violate the restriction that it must be just and reasonable, it should be upheld. In Fretwell v. Troy, supra, in construing a similar ordinance, it was said: "Regarded as a tax, therefore, it comes within the general proposition concerning taxation, that it knows no limit other than the necessities of the public treasury, and the discretion of the taxing power." The expenses of the city for previous years, as shown by the evidence, while an item properly to be considered in determining the question of the reasonableness of the ordinance, is not conclusive. The expenses of municipalities are not fixed by any law, and are regulated only by the wants of its citizens and their ability to provide the means to satisfy them. It was said, in City of Lyons v. Cooper, 39 Kan. 324, 18 Pac. 296: "It must be a flagrant case of excessive and oppressive levy of a license tax before a court

will interfere." This statement is well sustained by the authorities in this state.

The reasoning of plaintiff in error, founded upon the facts in evidence, and which follows the reasoning of the Illinois courts in City of Peoria v. Gugenheim, 61 Ill. App. 374, and in City of Carrollton v. Bazzette, 159 Ill. 284, 42 N. E. 837, 31 L. R. A. 522, that an annual license tax at the rate of $10 per day upon resident and transient merchants would be prohibitive, is fallacious. The defendants were transient merchants, and were not required to pay an annual license tax at the rate of $10 per day, but, being transient merchants, were only required to pay at that rate for the days they remained in business in the city. Such persons only remain in a town long enough to supply it with the kind of articles they sell, and then move to another place. The defendants therefore failed to establish facts from which a court can say, within the rule stated in City of Lyons v. Cooper, supra, that the ordinance was unjust or unreasonable.

It is also contended that the court erred in refusing to submit to the jury for its consideration the evidence offered by the defendants tending to show that the ordinance was unjust and unreasonable. We cannot agree with plaintiff in error in this contention. The facts being undisputed, the question whether an ordinance is void for any reason is a question of law, and must be determined by the court. 1 Dillon's Municipal Corporations, 327, and cases there cited.

Two other contentions are urged: First, that the city has no power to punish by fine and imprisonment a violation of this ordinance; and, second, that all licenses issued by a city of the third class must be issued for a period of one year, and therefore the city had no authority to pass an ordinance levying a daily occupation tax. Both of these questions were involved in Fretwell v. City of Troy, supra. The first, while not discussed, was necessarily sustained by affirming the judgment of fine and imprisonment. This de cision was made more than 20 years ago, and has never been questioned. The Legislature has been in session many terms since, and no attempt has been made to change the statute. We must therefore conclude that it was intended that such authority was fully granted. Upon the second proposition, the court said: "Nor does the provision that license taxes 'shall be at such rate per year as shall be just and reasonable,' prevent a charge of so much per day. The purpose of that section was to prescribe the method of computing the amount of taxes, and that was by the time, and not by the amount of business. It did not compel the council to exact a year's license in every case, or prevent them from graduating the amount of the license by the actual time employed in the business licensed."

Other objections are urged to the validity of the ordinance, and also to some alleged er

rors at the trial, but they do not require special attention.

The judgment is affirmed.

JOHNSTON, C. J., and BURCH, MASON, SMITH, and GRAVES, JJ., concur.

PORTER, J. I dissent from that part of the opinion holding the license tax reasonable and affirming the judgment of the court below. The business of an itinerant merchant differs from that of a regular merchant only because one is transient and the other permanent. The ownership of property carries with it, as an incident, the right to dispose of it. The owner has the right to establish a business at a place for one day, or for one year, or to locate permanently. In either case his right to sell, barter, or exchange his property, subject to reasonable regulations, is guarantied under the fourteenth amendment to the federal Constitution. The provision that no man shall be deprived of his property without due process of law protects "the stranger within the gates" equally with the oldest inhabitant. It forbids a city from suppressing or prohibiting a lawful business under the guise of an attempt to regulate, license, or tax such business. City of Lyons v. Cooper, 39 Kan. 324, 18 Pac. 296; City of Carrollton v. Bazzette, 159 Ill. 284, 42 N. E. 837, 31 L. R. A. 522.

was

The only question here is whether the tax is a reasonable one. To determine this, regard must be had to the circumstances. It appears that appellants conducted for a period of 19 days a business as transient merchants, carrying a stock of clothing and furnishing goods. The business did not injuriously affect the public interests, unless the public is interested in the restraint of trade for the benefit of local dealers; nor the character of the business such as leads to disorder or requires increased police supervision. In fact, only by a sort of fiction could it be said to require or admit of regulation. The village, with a population of 700 persons, raised for the two preceding years $1,000 per year of revenue. There is no showing that the necessities of the town had increased, and, assuming that they remained about the same, the unreasonableness of requiring appellants to pay $190 for the 19 days during which they conducted such a business seems apparent. It is argued in the opinion that it cannot be considered as a rate of $10 per day for an entire year, because the appellants were transient merchants, and only required to pay at that rate for each day they continued in business. However, if they continued for a year, or for six months, the rate continued the same. They were charged in the complaint upon 19 separate counts, and adjudged to pay $304, or $16 for each day. This was, it is true, the penalty for failing to procure a license. The ordinance required them to pay $190. The absence of any provision for a reduction, in a

Evidence that the owner of land executed a deed to his daughter. reserving a life interest in himself, and stated his purpose to be to deposit it with a third person to be turned over to the beneficiary upon his death, and that he did deposit it with such person, who handed it to the grantee after the grantor's death, may be held sufficient to establish an effective delivery, notwithstanding that no further showing is made as to what instructions were given to the depositary.

[Ed. Note.-For cases in noint, see Cent. Dig. vol. 16. Deeds, $$ 625-634.] 3. SAME.

The testimony of such a depositary examined, and held not to require the conclusion that the grantor retained any control over the deed. (Syllabus by the Court.)

Error from District Court, Neosho County; L. Stillwell, Judge.

Action by Nellie McWilliams and others against Frances V. Young and another. From a judgment in favor of plaintiffs, defendants bring error. Reversed, and new trial ordered.

McClain & Apt, for plaintiffs in error. Curran & Curran, E. Q. Stillwell, and Lamb & Hogueland, for defendants in error.

MASON, J. In 1900 J. R. Young executed a deed for lands in Allen county, naming as grantee his daughter, Docia A. Northrup. It was placed in the hands of George A. Bowlus, a banker. In 1902 Young died intestate, leaving as his heirs, besides this daughter, his widow, Frances V. Young, the mother of Mrs. Northrup, and several children and grandchildren by a former marriage. After his death the deed came into the hands of Mrs. Northrup, who took possession of the property. Several of the heirs began an action in Allen county to set aside the deed and partition the property. A change of venue was taken to Neosho county. There, by amendment, the petition was made to cover ejectment as well. Upon a trial in which no oral testimony was given, the case being submitted upon depositions supplemented by an agreed statement of facts, judgment was rendered setting aside the