sight." Of course, if such an excuse is good as against the duty to provide means and facilities to feed and water, it likewise must be good as against the duty to provide means for rest.

We are of the opinion, therefore, that, in order to hold a carrier liable for some cause which does not arise out of some defect which inheres in the pens themselves, such as being infected with disease, or of insufficient strength to hold the stock, or when rest is impossible because of some improper condition of the pens, the shipper must show that the carrier, by the exercise of "due diligence and foresight," could have avoided the injury to the stock.

2

The shipper must show that the carrier was guilty of negligence which was the cause of the injury. Had it been shown in this case that vicious dogs or wild animals, whose natural propensities were such as to injure sheep, were prevalent at Reno, and that respondent knew or ought to have known that such was the case, or if it had been shown that occurrences of a like character had taken place within a reasonable time prior to the time in question, then the jury might probably have inferred negligence on the part of respondent in not providing pens which would protect the sheep from interference. Such seems, also, to have been the theory of counsel for appellant when they prepared the complaint, as in it they based their right to recover upon the fact that respondent was guilty of negligence. It was only when they came to try the case that they insisted that the duty of the respondent was an absolute one, enforceable under all conditions. We cannot agree with counsel's theory, as contended for at the trial and in this court, for the reasons we have stated.

In view of the conclusions reached, the other errors assigned are immaterial, and hence require no discussion. Nor is it necessary to consider what effect, if any, the provisions of the contract which we have quoted from would have as between the parties. Since we have reached the conclusion that respondent is not liable under the statute, even though the sheep were in its charge, it is wholly immaterial at this time

39 Utah-31

to determine whether the shipper and carrier may by contract shift the burden imposed by the statute from the latter to the former.

From what has been said, it follows that the judgment should be, and it accordingly is, affirmed, with costs to respondent.

MCCARTY, J., concurs. STRAUP, J., concurs in the

result.

PARDEE v. SALT LAKE COUNTY.

No. 2234. Decided September 22, 1911 (118 Pac. 122).

1. ATTORNEY AND CLIENT-EMINENT DOMAIN-COUNTY CHARGES-EXPENSES IN JUDICIAL PROCEEDINGS-ATTORNEY FEES. Neither Const., art. 1, sec. 12, providing that every accused shall have the right to appear and defend in person and by counsel, nor section 22, providing that private property shall not be taken or damaged for public use without just compensation, would make a county liable for the services of an attorney appointed by the court to defend an indigent accused. (Page 486.)

2. CONSTITUTIONAL LAW. Const., art. 1, sec. 7, providing that no person shall be deprived of his property without due process of law, would not apply to make a county liable for the services of an attorney appointed by the court to defend an indigent ac cused. (Page 486.)

3. ATTORNEY AND CLIENT CHARGES AGAINST COUNTY-EXPENSES IN JUDICIAL PROCEEDINGS-ATTORNEY'S FEES-DEFENSE OF INDIGENT ACCUSED "SUPPORT"-"COSTS." Comp. Laws 1907, sec. 538, subd. 3, makes the necessary expenses incurred in the support of persons charged with or convicted of crime and committed to the county jail charges against the county. Section 4806 provides that the cost of trial shall be paid by the county wherein the offense was committed, and section 539 provides that costs accruing before removal shall be charged against the county which the prosecution originated. Held, that the statutes did not raise an implied liability by a county to pay for services of an attorney appointed by the district court to defend an indigent accused, the term "support" used in section 538 not including such charges, and the word "costs" as used in the other sections not including attorney's fees in a criminal case. (Page 487.)

4. MONEY RECEIVED RIGHT OF ACTION. As a rule, where a person or corporation obtains another's money or property under cir cumstances making it unjust to retain it, or where a public corporation incurs an obligation authorized by statute, but contrary to the form thereof, the law implies a promise to pay such money so as to authorize an action for its recovery. (Page 488.) 5. MUNICIPAL CORPORATIONS-CONTRACTS-POWER. Where a munic ipal corporation is not given power to contract upon a par ticular subject, or the statute provides a specific manner of contracting, there is no implied power in the corporation to contract except as expressly authorized. (Page 488.)

6. CRIMINAL LAW-TRIAL-RIGHT TO ATTORNEY-INDIGENT ACCUSEDCONSTITUTIONAL LAW. Const., art. 8, sec. 10, providing for the election of county attorneys, and that, where a county attorney fails to prosecute according to law, the court may appoint an attorney for the time being, does not authorize the court to appoint an attorney to defend an indigent accused. (Page 488.)

7. ATTORNEY AND CLIENT-DEFENDING INDIGENT ACCUSED-COMPENSATION. Comp. Laws 1907, sec. 489, provides that the powers of a county can be exercised only by the board of county commissioners or agents acting under its authority or authority of law, and the statute also provides that the board shall control and direct the prosecution and defense of all suits to which the county is a party, and shall employ counsel to assist the county attorney in conducting such suits when necessary. Held, that a county, through the board of county commissioners, only had power to employ counsel to prosecute or defend actions to which the county was a party, and was not a party to a criminal case so as to make it liable for services of an attorney appointed by the district court to defend an indigent accused pursuant to section 4767, which merely authorizes the court to assign counsel to defend an accused who desires, but is unable, to employ counsel. (Page 489.)

8. ATTORNEY AND CLIENT-COMPENSATION-APPOINTMENT BY COURT -DEFENDING INDIGENT PRISONER. An attorney appointed by the court to defend an indigent accused pursuant to Comp. Laws 1907, sec. 4767, is not entitled to recover compensation for his services from the county. (Page 491.)

9. COUNTIES-PUBLIC DEBTS-LIMITATION OF AMOUNT. Comp. Laws 1907, sec. 492, taken from Const., art. 14, sec. 3, provides that no county shall incur any liability for any purpose exceeding in any one year the taxes for the current year without the assent of a majority of the electors, and that a liability incurred contrary to such provisions shall be void. Section 493 provides that all contracts and liabilities to pay made in violation of the

title shall be absolutely void, and no basis for a claim against the county treasury. Held that, in the absence of a showing that the county taxes for the year 1910 were sufficient to pay a claim against a county for legal services defending an indigent accused in that year, no recovery therefor could be had, even if it were otherwise recoverable. (Page 495.)

APPEAL from District Court, Third District; Hon. T. D. Lewis, Judge.

Action by James D. Pardee against Salt Lake County.

Judgment for defendant. Plaintiff appeals.

AFFIRMED.

M. E. Wilson for appellant.

I. E. Willey for respondent.

FRICK, C. J.

Appellant brought this action against the respondent county to recover for services rendered by him in defending an indigent person charged with murder under an assignment made by the district court of Salt Lake County. In his complaint the appellant, in substance, alleged that he is, and for many years has been, an attorney at law practicing his profession in Salt Lake County, Utah; that on the 8th day of April, 1910, in a certain criminal action then pending in the district court of Salt Lake County, Utah, wherein the State of Utah was plaintiff and one Thomas Riley was defendant, said Riley was charged with the crime of murder in the first degree, and, when he was arraigned therefor in said court, he appeared without counsel, and said that he was without means to employ such to represent him in said action; that the said court then asked said Riley whether he desired the aid of counsel, to which said Riley replied in the affirmative, whereupon the court assigned appellant to defend said Riley upon such charge in said court; that, pursuant to said assignment,

appellant made proper preparation to defend, and did defend, said Riley against said charge in said court, and that the services rendered by appellant in that behalf were reasonably worth the sum of $950; that appellant in the year 1910 had duly presented his claim for services rendered as aforesaid, as required by law, and that the board of county commissioners of Salt Lake County duly heard and considered said claim, and after doing so, in the year aforesaid, disallowed the same. Appellant prayed judgment against Salt Lake County for the said sum of $950, with interest and costs. Salt Lake County, hereinafter styled respondent, by its attorney demurred generally to the complaint. The demurrer was sustained, and the court entered judgment dismissing the action, and appellant presents the record on appeal.

The only error assigned is that the court erred in sustaining the demurrer, and in entering judgment dismissing the action. Counsel for appellant in his brief states the question to be solved by us in the following language: "The only question in this case is whether, notwithstanding there is no statutory provision for compensation to an attorney appointed by the court to defend an indigent criminal charged with a capital offense, such attorney is entitled to compensation from the county in which the information was found and in which the case was tried." From appellant's own statement it is thus at once made apparent that he does not claim that there is either an express contract or an express provision of law under which the county is made liable in this case. It is, however, strenuously contended by appellant that the county is liable under an implied agreement. This implied agreement, it is contended, arises out of some or all of the following constitutional and statutory provisions, namely: Section 12 of article 1 of the Constitution of this state, among other things, provides that "in criminal prosecutions the accused shall have the right to appear and defend in person and by counsel." Section 22 of the same article reads: "Private property shall not be taken or damaged for public use without just compensation." And section 7 of said article provides: "No person shall be deprived of life, liberty or prop