and, the limitations and prohibitions being in positive and unambiguous terms, no county can add to its liability, except in the manner there prescribed, anything to the contrary in any section of any statute notwithstanding. Section 18 of article 11 of the Constitution of California, as far as material here, provides: "No county, city shall incur any indebtedness or liability in any manner or for any purpose, exceeding in any year the income and revenue provided for such year without the assent," etc. The Supreme Court of California has at different times had occasion to construe and apply the constitutional provision aforesaid. The last time that court had the matter under consideration was in the case entitled Buck v. City of Eureka, 124 Cal. 61, 56 Pac. 612. The plaintiff in that case was an attorney at law, and asked judgment against the city of Eureka for legal services rendered by him for it upon an implied promise or agreement. The lower court held that the liability arising out of an implied promise did not fall within the constitutional limitations we have quoted. The Supreme Court, however, held that a liability arising out of an implied agreement is prohibited the same as one based upon an express agreement would be, and further held that, unless it is alleged and proved that there were "unappropriated revenues when the liability was incurred, the claimant

will have no right to a judgment in any form."

While the appellant alleges that he rendered the services in question in the year 1910, that he presented his claim for allowance and that the same was rejected in that year, he nevertheless nowhere alleges that his claim for $950 may not in whole or in part have been "in excess of the taxes for the current year;" that is, the year 1910. We thus have a case where a liability against a county may be created in but two ways. One is that the amount of the obligation is within the revenues produced from taxation for the year in which the liability arose, and, if such is not the case, the other is that at least a majority of the qualified electors of the county voting upon the proposition shall vote in favor of incurring the liability. In view of these constitutional pro

visions which control in all cases, no liability can arise by implication against a county unless the current revenues are sufficient to meet the obligation incurred. In view that in this case appellant expressly admits that he does not claim under an express agreement, he must state sufficient facts from which an implied one may arise. This he has not done, for two reasons: (1) Because in the general statement of his cause of action he does not allege facts from which the law implies an agreement to pay by the county for the reasons stated in the course of this opinion; and (2) because no facts are alleged showing that the taxes of 1910 were sufficient to cover the claim sued upon either in whole or in part.

The Supreme Court of Indiana in recent cases, namely, Board, etc. v. Mowbray, 160 Ind. 10, 66 N. E. 46, and Board, etc. v. McGregor, 171 Ind. 638, 87 N. E. 1, expressly holds that the whole matter of compensating attorneys for defending poor persons charged with crime belongs to the legislature, and, when the latter provides that no such services shall be paid for unless an appropriation has been made therefor, the attorney rendering such services must, in order to recover, allege and prove that an appropriation has been made, and that it was not exhausted when the services sued for were rendered. A similar law is enforced in Ohio. (See State v. Com'rs, etc., 26 Ohio, St. 599.) As we have seen, even the Supreme Court of Wisconsin has changed front upon this question insofar as to state that the question of compensation in such cases is legislative rather than judicial.

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

MCCARTY, J., concurs.

STRAUP, J. I concur on the ground that the alleged claim is not a proper charge against the county.

39 Utah-32

STATE v. MORRELL.

No. 2105. Decided September 26, 1911 (118 Pac. 215).

LARCENY OWNERSHIP OF PROPERTY-FELONIOUS TAKING EVIDENCE. Evidence on prosecution for larceny of a cow held insufficient to show she was the property of the person alleged, or to show a felonious taking.

APPEAL from District Court, Sixth District; Hon. J. F. Chidester, Judge.

George Morrell was convicted of grand larceny and appeals.

REVERSED AND REMANDED FOR NEW TRIAL.

King & Burton and G. T. Bean for appellant.

A. R. Barnes Attorney-General, for the State.

STRAUP, J.

The defendant was convicted of grand larceny, the stealing of a cow, the alleged property of Peter Scorup. He has challenged the sufficiency of the evidence to sustain the verdict. We think the evidence insufficient in two particulars: (1) To show that the cow was the property of Scorup; and (2) to show a felonious taking by the defendant.

With respect to the first point Scorup testified that he, in November, 1906, purchased from H. H. Kearns 312 head of cattle, branded "H" on the left ribs. About twenty-five head also had other brands on them. About 280 head were delivered to Scorup; thirty or thirty-five were astray on the range. In the fall of 1907 the cattle were gathered by him. He then was short about sixteen head. He later sold most of the cattle to Niel McMillan. He sold four or five head to butchers. "A big, fine cow" so sold was turned back on the

range. He sold no cattle to the defendant. Among the cattle purchased by him were some of "a roan color and baldfaced"-white face. There were other cattle of that description in the community owned by others. Scorup further testified that he never saw the cow in question, and that he did not know whether she belonged to him, or whether he had purchased her from Kearns. Other witnesses testified for the state that in October, 1908, the defendant butchered a "roan white-faced" cow having an "H" brand on the left side. They further, testified that they saw the cow in the defendant's possession for a year or a year and a half prior thereto, and that he, under an asserted claim of ownership, openly had kept the cow about his premises and in his field, and without any attempt of concealment. To some of them he stated, prior to the controversy, that he lost the cow when she was a yearling, that she then was branded with his brand "67" on the right hip, and that two or three years thereafter he found her branded "H" on the left side. When he butchered the cow, he openly and in the presence of some of the witnesses drove her from the field and stated to them that he intended to butcher her. They offered to help him. He told them he had sufficient help. The cow was slaughtered, the hide thrown across the fence, and the head placed near it, where both were exposed to the view of the public. There the sheriff saw them and seized the hide. It had the "H" brand on it. That brand belonged to Kearns, who had sold to Scorup. The defendant's brand was "67." Ergo, the cow belonged to Scorup, and the defendant stole her at the time and in the manner alleged. That is the state's case.

The defendant corroborated in most particulars by other witnesses, testified that the cow belonged to him; that he had raised her; that he branded her when she was about a year old; that he then lost her; that he found her, two or three years thereafter, branded "H" on the left side; and that he inquired of the county clerk's office and from others as to the ownership of the "H" brand, and, as testified to by him, tried to find out who had branded his cow. He re

claimed the cow, openly kept her about his premises and in his field for a year or a year and a half, and then butchered her. He and other witnesses testified that a part of the defendant's brand "67," was still visible on the cow when she was butchered. The defendant testified: "A part of the brand showed on the hide when it was on the cow. The '6' showed, and you could see where part of the '7' was. It still shows on the hide, but not as clearly as when the hide was on the cow." We do not find any evidence disputing this, except the testimony of some of the witnesses, who testified that they saw the cow in the defendant's field and noticed only the "H" brand.

We think the verdict is clearly without support. The judgment of the court below is therefore reversed, and the case remanded for a new trial.

FRICK, C. J., and MCCARTY, J., concur.

ARGYLE et al. v. JOHNSON, County Treasurer.

No. 2244. Decided September 26, 1911 (118 Pac. 487).

1. DRAINS PURPOSES-PUBLIC HEALTH. Promotion of the public health need not be involved to make valid a law for reclamation of swamp or overflowed lands, by organization of a drainage district and taxation of the lands therein for the improvement. (Page 505.)

2. CONSTITUTIONAL LAW-DRAINS-DUE PROCESS-HEARING BEFORE COMPETENT TRIBUNAL. The drainage act (Comp. Laws 1907, secs. 760-779) is unconstitutional, as permitting private property to be taken without due process; owners of land included in a drainage district not being given a right to a hearing, before some competent tribunal, prior to the time the tax lien is irrev. ocably established, or the lands can be sold for delinquent assessments, on the question whether their lands are benefited by the drainage district, and, if so, whether the assessments are just and equitable, when compared with the assessments of other lands in the district. (Page 507.)