16 P.2d 1 | Mont. | 1932
Lead Opinion
When a municipal corporation voluntarily engages in selling and distributing water to its customers for its local advantage or profit, it enters the field of ordinary private business, and has the same rights and is subject to the same liabilities as private corporations or individuals with respect to damages from impurity of water. (Keever v. City of Mankato,
A water supply corporation is bound to use reasonable care and diligence in providing pure and wholesome water that is at all times free from infection or contamination which renders the water unsafe or dangerous to individuals, or unsuitable for domestic purposes, and is liable for injury from its failure to do so. (Hayes v. Torrington Water Co.,
The trial court erred in holding that by law the state board of health was and is given exclusive jurisdiction and control over the defendant city in the matter of the furnishing and *370
supplying of pure and wholesome water to its customers; that the city operated its water plant entirely in a governmental capacity, and that the city could take no action which had for its purpose the keeping of its water supply pure and wholesome without first getting permission from the state board of health to do so. There is no warrant under either the state statutes or the decisions of this court for such a holding. (See sec. 2448, Rev. Codes 1921.) As to the meaning of the term "general supervision" used in that section, see In re James,
If, as all the authorities hold save the court of South Carolina, a city engaged in the business of furnishing water to its citizens does so in its private or proprietary capacity, and that negligence in that respect furnishes a valid cause of action to one injured by the use of contaminated water, then the fact that a state board of health has general supervision over the work of the local and county boards of health is beside the question of liability, since all the states from which cases have been cited above have state boards of health, each with powers of supervision as broad as those of the Montana state board, and in all those states the liability of a municipality for negligently furnishing contaminated water has been declared.
The city cannot escape liability because the need of pure and wholesome water appertains to sanitation and the general health of the city. As said in City of Denver v. Porter, *371
126 Fed. 291, 61 C.C.A. 168: "If the duty in question is substantially one of a local or corporate nature, the city cannot escape responsibility for its careful performance because it may in some general way also relate to a function of government." (See, also, City of Winona v. Botzet, 169 Fed. 321, 23 L.R.A. (n.s.) 204, 94 C.C.A. 563; City of Shawnee v. Roush,
It is alleged by defendant in its answer by way of a complete defense to plaintiff's cause of action that the plaintiff gave the city no notice of his injury and of his intent to sue therefor. In fairness to the court below it may be said that while it left this alleged defense in the answer, it was of opinion that no notice was necessary before plaintiff brought action. We cannot believe that the legislature in passing section 5080, Revised Codes 1921, had in mind any injury which could not be fixed both as to time and place of occurrence in the notice required by that section. When it was passed in 1903, we submit that no such condition of affairs as is here presented could have been in the minds of the legislators, and so the injury was not within either the letter or the spirit of the section. (Megins
v. City of Duluth,
In none of the many cases cited by appellant on this point does it appear that there was a statute, like the statute of Montana, which confers jurisdiction upon the state and local boards of health in matters relating to public water supplies, the purity of the water and the protection of the public health. Appellant's cases are, therefore, not in point. Respondent does not contend that the city, in the absence of the statute conferring this jurisdiction on the state and local boards of health, would not come within the rule announced in the cases cited by appellant. But respondent does contend that such statutes take this matter out of the hands of the city and make it a governmental function administered by the state and local boards of health. If a statute, or ordinance, shows that the duties to be performed are connected with or have reference to the preservation of the public health, then they are in furtherance of governmental functions. This has been squarely decided by this court. (Griffith v. City of Butte,
By Chapter 177 of the Laws of 1907, now sections 2641 to 2657, Revised Codes 1921, the state assumed full jurisdiction *373 and control over water systems and supplies of water of cities for domestic use as a health measure. At the same session, sections 2444 to 2502 of the 1921 Code were enacted as Chapter 110 of the Laws of 1907, conferring on the state board of health the power and duty of enforcing the provisions of Chapters 177 and 110.
By these statutes water supplied by a city for domestic use is placed under the control of the state board of health, and the board has the same jurisdiction and control as it has over the sewage of a city, all in the interest of the public health. (Miles City v. State Board of Health,
The whole duty, therefore, with reference to the protection of the water against pollution and when the water became polluted to determine whether or not the pollution was dangerous to health and to protect the users of the water from such danger, if it existed, rested upon the state board of health and the local health officer. The negligence, therefore, if any, was the negligence of the state board of health or of the city health officer, for which negligence the city is not liable. (Danaher
v. City of Brooklyn, 51 Hun, 563, 4 N.Y. Supp. 312; s.c.,
The local board of health and local health officer are not, under such laws as we have under consideration, servants or agents of the municipality, for whose acts or negligence the municipality can be held liable under the doctrine of respondeatsuperior, or otherwise. (Maxmilian v. Mayor,
The appointment of the local officers was commanded by the state board of health law, and the city had no discretion in the matter, and such officers, when appointed, were under the control, direction and supervision of the state board, and the city was not given any control or supervision of their acts whatever. Control, supervision and direction of a subordinate or servant is one of the essential and necessary elements that must exist before the doctrine of respondeat *375 superior can be invoked. (Hooper v. Brawner,
At common law a city is liable the same as a private company for sickness or death caused by the furnishing of contaminated water for the reason that in the absence of statute providing otherwise, a city exercises its private or proprietary power in supplying water for domestic use. In view of this fact the statement is made in the text-books and court opinions that a city is liable for negligence in furnishing water for domestic use the same as a private company. When, however, the state in the exercise of the police power assumes complete control and jurisdiction over the city supply so far as the public health is concerned, as has been done in Montana, the city is necessarily relieved from such liability. (19 R.C.L., p. 1114.)
Compliance with section 5080, Revised Codes 1921, with relation to notice, is a condition prerequisite to maintaining the action. The service of such notice is not a limitation which may be waived, but is a condition precedent to the right of the plaintiff to maintain the action. It must be alleged in the complaint and it must be proved by the evidence. (Eby v. Cityof Lewistown,
Contracting typhoid fever is an "injury or loss * * * received or suffered" within the meaning of section 5080, supra. As to what constitutes an "injury," see City and County of SanFrancisco v. Industrial Acc. Com.,
Section 5080 particularly applied to waterworks: There are several instances, where statutes similar to the Montana statute have been applied directly to cases where typhoid fever was contracted. Prominent among these cases is the case of Frasch
v. City of New Ulm, supra. The complaint there did not allege the service of notice of the injury and a demurrer was sustained. On appeal the judgment was affirmed. The above case is cited with approval in Dickie v. City of Centralia,
His complaint alleges that the city owns, maintains, operates and controls a water supply and system in its corporate capacity from which it furnishes water for drinking and domestic purposes on a rental basis, and so furnished water to the place where this plaintiff resides during the period covered by the allegations. It is then alleged that, in the summer of 1929, through the negligence of the defendant, its officers, agents and employees, the water became contaminated and that for a period of at least four weeks prior to the time when plaintiff became infected, the defendant had knowledge that the water it was furnishing him was germ-laden and unfit for human consumption, yet negligently failed to remedy the situation or warn plaintiff not to drink the water; that he did drink of the water at his place of residence on the thirteenth day of September, 1929, and thereby contracted typhoid fever from which he was seriously ill and confined to a hospital for a period of three weeks, to his damage in the sum of $10,000.
The defendant moved to strike certain portions of the complaint, which motion was overruled, and then answered, admitting that it owned and operated the water system but denying that it did so in its corporate capacity, and denying that it has control over the water supply. It further denied that it had any notice or knowledge that the water was contaminated prior to September 16, 1929. The answer set up two special defenses, the first being that the duty to determine the condition of the water was transferred by statute to the State Board of Health and its subordinates, the county and city health officers who had knowledge of the condition for some time prior to September 13, but failed to notify the city, and, second, that the plaintiff was not entitled to maintain his action by reason of the fact that he had not given written notice of his injury to the city as required by law.
The plaintiff moved to strike the special defenses from the answer, which motion was denied, and then demurred to the answer; the demurrer was overruled and plaintiff given ten days in which to further plead; he refused to plead further *378 and thereupon defendant moved for judgment on the pleadings on the ground that each special defense constituted a complete defense to the cause of action pleaded. This motion was sustained and judgment of dismissal entered. The plaintiff has appealed from the judgment.
Three questions are presented for determination. First, in operating a municipally owned water supply and system, does the city act in its governmental or in its proprietary capacity? Second: Do the laws creating a State Board of Health and subordinate county and city health departments take the control of water systems out of the hands of the city so as to relieve it of the duty of maintaining a pure supply of water? Third: Does the law require one injured in the manner plaintiff alleges he was injured to give notice to the city as a condition precedent to the maintenance of an action for damages?
1. A city is not required to furnish water to its inhabitants,[1] but it is authorized to do so, if a majority of the taxpayers "affected thereby," on submission, shall authorize the city to enter upon this commercial enterprise. (Subd. 64, sec. 5039, Rev. Codes 1921.) For many years the city of Helena has owned and controlled its waterworks and, as far back as 1897 this court intimated that in the ownership and control of that water system the city acts in its proprietary character, as distinguished from its governmental capacity. (HelenaConsolidated Water Co. v. Steele,
2. The defendant may be said to admit the correctness of the[2, 3] foregoing statement of the law, but it contends that in the protection of the public health the city acts in its governmental capacity, which governmental function is, by law, imposed upon the State Board of Health and its subordinates, the county and city health officers.
A careful reading of the statutory provisions respecting the powers and duties of the State Board of Health (secs. 2641-2657, Rev. Codes 1921), and of their subordinates, the county and city health officers (secs. 2444-2502, Id.), discloses that, for the protection of the public health, these officials are given "general oversight and care" of the sources of all water supplies for domestic use and of the installation of water systems and sewer systems as affecting such supplies, and are commanded to consult with and advise the city authorities in such matters. It has supervisory control over the subordinate health officials and may promulgate rules and regulations, and the health officers are authorized to investigate, on complaint, alleged nuisances tending to pollute water supply sources and prohibit the continuance thereof.
This board has general supervision over the "interests and health of the citizens of the state" and may appoint local health officers if the local authorities fail to do so. The local health officer is authorized to make sanitary inspection whenever and wherever he has reason to suspect that anything exists that may be detrimental to the public health, and, under rules promulgated by the state board, he shall investigate "suspicion" of the existence of such a condition, and shall investigate premises on which cases of typhoid fever exist and take necessary steps to prevent spread of disease and prevent the use of water which may be a probable source *380 of infection, and abate nuisances affecting water used for human consumption.
But all of the powers, duties and authority vested in these officers pertain with the same force when a water system is owned, controlled and operated by a private person or corporation as when it is municipally owned, controlled and operated.
If, then, the reposing of power in the health officers to protect the public health in the manner designated relieves a city of liability for negligently and knowingly furnishing polluted water to its customers, all private enterprises performing a like service are likewise relieved. This cannot be. The city furnishes water to its inhabitants in its private corporate capacity, and it stands exactly in the shoes of the old Helena Water Company from which it purchased the plant; its activity in supplying water for domestic purposes, for hire, carries with it the duty to exercise care, commensurate with the risk involved, to see that the water which it supplies is free from filth and germs which will affect the health of its customers, just as is a private operator of a water system.
To say that a city is required to supply an adequate amount of water but is not concerned with the quality of that water because the quality has to do with the public health, would be a refinement of technical hair-splitting. To say that the health officers have been negligent is no defense to the charge that the city knowingly delivered polluted water to a customer; if the attempt was to hold the city liable in a manner wherein it wasobeying a mandate of the health officers, a different question would be presented.
Even where it is held that, as the statutes give to the health officers supervisory control, the city is not required to "watch over the quality of the water as affected by the natural sources of supply," the city "is bound to keep its sewers and streets in such condition that the waters will not be polluted." (Danaher v. City of Brooklyn, 4 N.Y. Supp. 312.) *381
In Griffith v. City of Butte,
3. Section 5080, Revised Codes 1921, declares a condition[4-8] precedent to the right to maintain any action falling within its provisions. (Tonn v. City of Helena,
The body of the Act, unchanged since 1903, reads: "Before any city or town in this state shall be liable for damages for, or on account of, any injury or loss alleged to have been received or suffered by reason of any defect in any bridge, street, road, sidewalk, culvert, park, public grounds, ferry-boat, or public works of any kind in said city or town, the person so alleged to be injured, or someone in his behalf, shall give to the city or town council, or trustee, or other governing body of such city or town, within sixty days after the alleged injury, notice thereof; said notice *382 shall contain the time when and the place where said injury is alleged to have occurred."
Counsel for the defendant earnestly contend that, as the pleadings disclose that no notice was given the city by this plaintiff, the judgment on the pleadings must be affirmed. They contend that certain language of the Act, viz.: "Any injury or loss * * * received or suffered by reason of any defect in any * * * public works of any kind," requires notice to be given in such a case as this. If the quoted language were all — if it were unaffected by the context of the Act — the argument might be advanced with much force. But it is not all. The closing requirement that the "notice shall contain the time when and the place where said injury * * * occurred" indicates that the makers of the law had in mind only physical injuries resulting directly from an accident occurring by reason of a "defect" in or on a street, sidewalk or other public work. That this is sound is demonstrated, if demonstration can be said to be necessary, by resort to well-known principles of statutory construction.
In construing a statute the paramount rule is to give effect to the intention of its makers (59 C.J. 949), or, as declared by this court, "the intention of the legislature must control." (McNair v. School District,
To ascertain the intention of the legislature, recourse must first be had to the language employed in, and the apparent purpose to be subserved by, the statute (McNair v. SchoolDistrict, above, and cases therein cited), but where the meaning of a statute is obscure, resort may be had to other canons of construction, including recourse to the title to the original Act. (Sullivan v. City of Butte,
However, in the instant case it is asserted that, by the formal adoption of the Codes of 1921 (Chap. 54, Laws of 1925), the statute is entirely divorced from its title and we cannot now look to it for any purpose. With this contention we cannot agree. The Act of 1925, approving the Codes of 1921, may cure defects in connection with the title to the Act, constitute an informal method of amendment, or render constitutional an Act which, with its title considered, would be unconstitutional (State ex rel.Urton v. American Bank Trust Co.,
While the question has not heretofore been directly raised in this state, the rule just stated was followed in Kelly v. Cityof Butte,
Reference to the transcript in the Kelly Case discloses that the first pleading before the court was an amended complaint filed in October, 1909, or more than two years after the codification *384
of 1907. It can hardly be presumed that the action was commenced nearly three years prior to the filing of this amended complaint, but, be that as it may, the court in 1911, without regard to the time when the injury was received or the action commenced, looked to the title of the Act to determine the intention of the legislature in its enactment, and, on its consideration, overruled the decision in Butte Machinery Co. v. City ofButte,
If we consider the title to the Act of 1903 (now sec. 5080), there can be no question but that the legislative assembly of that year had no intention to make it applicable to such a case as this, for that body explicitly declared that it relates to an "action for damages to persons injured on streets or other public grounds."
The plaintiff was not injured in or on any street or public grounds; if he can be said to have been "injured" in the sense in which the term is here used, he was injured by drinking polluted water in his home.
In construing a statute the court must give effect to every word, phrase, clause or sentence therein, if it is possible to do so. (Stange v. Esval,
The specific requirement that the notice give the time when and the place where the accident occurred, is for the purpose of enabling the city, or its representatives, to examine the place where the defect is alleged to exist and to investigate the question of its liability, if any. (Tonn v. City of Helena, above; Eby v. City of Lewistown,
The construction placed upon dissimilar statutes by other courts is of no value here.
Counsel for defendant place great reliance upon the decision of the supreme court of Minnesota in Winters v. City ofDuluth,
We fail to see wherein the Duluth decision is in point, even if we were to accept the court's wide latitude of interpretation of the statute, for, in the instant case, the "place where" the plaintiff was injured does not come within the definition of "public grounds," and was not a "place held, used, or controlled by the city * * * for the use and enjoyment of the public" so as to come within the reasoning of the Duluth Case. The plaintiff was not injured on any "grounds held, used or controlled" by the city, but was injured by the drinking, in his own home, of contaminated water supplied to him by the city.
As indicating that the intention of the Minnesota legislature was to require notice to the city in all personal injury cases, that body later, by re-enactment, restored to the Act the portion stricken by the court, under the simple title: "An Act requiring a notice of claim for damages, to be given to cities * * * for loss or injury sustained in certain causes." (Chap. 381, Laws of Minnesota, 1913.) Under this later Act, the Minnesota court has held that the required notice must be given in a case wherein the fact conditions were practically identical with those before us (Frasch v. City of New Ulm,
If the Minnesota court in the Duluth Case determined the intention of the legislature without regard to that portion of the statute which it held unconstitutional, we cannot agree with it and think the dissenting opinion of Mr. Justice Collins correctly interprets the Act and states the law when he said: "The Act, according to its title, relates simply *387 to `persons injured on streets and other public grounds'; * * * the general words `and other public grounds' immediately following the word `streets,' under the well-settled rule ofejusdem generis, must be held to mean grounds of the same general kind as those mentioned, viz.: public highways and places where the general public have a right to go, and they cannot be held to mean anything different."
Statutes requiring notice and of the general type of ours are held not to apply to actions arising from negligence in carrying on any private commercial enterprise, in the following well-reasoned cases: Henry v. City of Lincoln,
Section 5080 is not applicable to the facts before us; the[9] cause of action is based upon the negligence of the city in knowingly furnishing its customers polluted water. Proof of such negligence, proximately resulting in injury and damage, would entitle the plaintiff to a judgment; consequently, the plaintiff cannot be required to prove the source of the contamination, much less give notice to the city as to the "place where" the contamination entered the water main because of a "defect" therein.
4. The defendant moved to strike paragraphs seven to eleven of[10, 11] the complaint on the ground that they are repetitious, redundant and unnecessary. It is true that each of the paragraphs mentioned repeats former allegations to the effect that the city knew that the water was contaminated for a period of four weeks prior to September 13, 1929, and knowingly furnished such contaminated water to this plaintiff, but each of those paragraphs closes with a specific allegation of negligence, to-wit: paragraph seven alleges that the city failed to disclose to the plaintiff that the water furnished was dangerous to life and health; eight, that it failed to warn him against the use of the water; nine, *388
that the city failed to chlorinate the water; ten, that it failed to turn the contaminated water out of the city mains; eleven, that it failed to adopt any precautionary measures for the protection of its customers. These allegations may become important on a trial of the case, but the negligent omission alleged in paragraph eight can be proved under the allegation contained in paragraph seven, and those contained in paragraphs nine and ten can be proved under the allegations of paragraph eleven; hence, the motion should have been granted as to paragraphs eight, nine and ten. (Flatt v. Norman,
5. From what is heretofore said, plaintiff's motion to strike the two affirmative defenses set up in the answer, to the effect that the city is relieved from responsibility by reason of the authority vested in the state and local health boards and officers, and that plaintiff is not entitled to maintain his action because of his failure to give the notice required by section 5080, above, should have been sustained.
In the event that the plaintiff's testimony is sufficient to[12] put defendant upon its proof, evidence that defendant complied with the rules and regulations of the health officers, and evidence as to those rules and regulations, would be relevant under the general denials of the answer, as bearing directly upon the question of defendant's negligence and its knowledge respecting the condition of the water.
The judgment is reversed and the cause remanded for further proceedings in accordance with the views herein expressed.
Dissenting Opinion
The view I take of this case compels me to dissent. Called to sit herein in the stead of Mr. Justice Galen, one of the ablest jurists this state has produced, who himself dissents upon occasion, I would fain be in harmony with my brethren on the law of the case. To be so in this instance, however, would cause me to feel that I have failed in the conscientious discharge of the imperative duty resting upon me, not to remain *389 silent — the easy way — but to set forth the reasons for the faith within me, even though I stand alone.
Plaintiff seeks to recover damages from the defendant, a municipal corporation, for injuries allegedly sustained in being made ill with typhoid fever on or about the thirteenth day of September, 1929, from the drinking of contaminated water knowingly furnished and delivered the plaintiff at his residence by the defendant through its waterworks system for compensation during the four successive weeks immediately preceding said date.
The defendant in its answer, among other things and as a second and further answer and defense, alleged that the contamination was caused by sewage escaping through a break and defect in a sewer and into the water system by reason of defects in the water-pipes near the break; and further that the plaintiff did not, within sixty days, or at all, after the time of his injury or loss, nor did anyone in his behalf, or at all, give to the city council any notice thereof.
The plaintiff moved to strike this second and further answer in its entirety, which being denied, interposed a general demurrer thereto, which being overruled, the plaintiff refused to plead further and judgment on the pleadings was thereupon entered. The demurrer admits the allegations of fact if well pleaded, which they are if the statute is applicable.
The statute relied upon by the defendant reads in full as follows: "Before any city or town in this state shall be liable for damages for, or on account of, any injury or loss alleged to have been received or suffered by reason of any defect in any bridge, street, road, sidewalk, culvert, park, public ground, ferry-boat, or public works of any kind in said city or town, the person so alleged to be injured, or someone in his behalf, shall give to the city or town council, or trustee, or other governing body of such city or town, within sixty days after the alleged injury, notice thereof; said notice to contain the time when and the place where said injury is alleged to have occurred." (Chap. 93, p. 165, Laws of 1903.) *390
The above statute, enacted by the Eighth Legislative Assembly in 1903, has never been amended, was carried into the Revised Codes of 1907 of Montana as section 3289, and as section 5080 into the Revised Codes of Montana of 1921.
In Butte Machinery Co. v. City of Butte, (May, 1911)
Counsel for appellant argue that the rule of ejusdem generis applies and controls the construction of the statute, section 5080, and in their brief say that the phrase "public works of any kind" is to take the meaning which it shares in common with preceding terms, that is, "places over which and on which the public may travel, or in which the public may gather, * * * a place of public travel or resort and not a subsurface water or sewer line." In doing so counsel had to carry in mind and give explanation to two preceding terms, namely, "park" and "public ground," and did so by the language used, "a place in which the public may gather or resort," in each of which water, living or subsurface, and sewer facilities as well, are necessary.
While the books contain a multitude of cases construing various statutes of a similar nature, requiring notice, the industry of counsel and research disclose apparently only one case, Winters v. City of Duluth, (1901)
"The statute expressly provides that, before any city shall be liable for any injury to any person by reason of any defect in any public ground or public works of any kind in the city, the notice required therein must be given. The words `public works of any kind,' as used in the statute, are broad enough to, and do, cover the facts of this case; for all fixed works constructed for public use, as railways, docks, canals, waterworks, and roads, are included in the term `public works.' (Cent. Dict. * * *)
"The term `public grounds,' in its general and usual meaning, and in the sense in which it is used in the title to this statute, includes any public works in the city. * * * The necessity for notice to a municipality of an injury suffered by reason of a defect in any of its public works or grounds is just as essential for its protection as it would be in case the injury was caused by a defect in its streets, and to limit its operation to injuries caused by the condition of its public highways would defeat the manifest purpose of the Act, by an illiberal construction, contrary to the spirit of the constitutional limitation."
This court, Mr. Justice Smith writing the opinion, in Kelly v. City of Butte, supra, gave the term "public works" the same general and usual meaning, in saying: "Section 3289, Revised Codes [sec. 5080, R.C.M. 1921] providing that notice of claim for injuries must be given to a city or town before it shall be liable for damages, refers, in terms, to any `defect' in any bridge, street, public works, etc."
The per curiam opinion in strictly construing the word "on" in the title of the Act renders nugatory the words "or public works of any kind in said city or town," in the body of the Act because, forsooth, the water was delivered the plaintiff "not in or on any public place, but in the place where he resided, — a private residence." Where else could it have been delivered under the circumstances pleaded? The implication is that if the plaintiff's residence had been "in or on any public *393 place" the statute would apply. Here the primary causes of plaintiff's illness were, first, the break and defect in the sewer, and, second, the defect in the water-pipe permitting the contaminated sewage to enter and contaminate the water, which plaintiff drank, thereby causing his illness. As to this particular plaintiff, his illness and the character thereof, the particular part of the city in which he resided, and mayhap his very existence were not known by the city council, and did not know for more than two years from the date of the alleged illness when this suit was instituted. It was said in the argument that a typhoid epidemic existed in the city at about the time of plaintiff's illness, and of such nature as to give rise to the fear that the various sections and sources of the city's water system were all infected. Even now, in Helena, in Great Falls, or any other city of the state, some individual might claim he was made ill with some character of illness from the drinking of some character of deleterious water, delivered to him at his private residence by the city through its public works, — the water system. No epidemic therefrom existed. No notice thereof was ever given the city council, nor anything known of it for more than two years later when a suit to recover large damages was filed. Surely, the mere statement hereof shows the absolute necessity for the city council to be given notice. It is also the rule of law according to the authorities. The Act in question, section 5080, uses the words "public grounds." Rarely are such seen without observing thereon buildings, and correlatively there comes at once to the mind the thought of public works, public works of some or any kind, and which also must have been in the mind of the legislature.
In State v. McKinney,
In Evers v. Hudson,
In State v. Anaconda C.M. Co.,
In 25 R.C.L. 1052, a rule of construction is there stated: "One of the recognized rules of construction of statutes is that we are to look to the state of the law when the statute was enacted in order to see for what it was intended as a substitute. No single statute should be interpreted solely by its own words. Upon enactment it becomes a part of, and is to be read in connection with, the whole body of the law. Its interpretation is to be in the light of the general policy of previous legislation and of the long established principles of law and equity. Every statute which is properly the subject of judicial construction should receive such a construction as will not conflict with general principles and will make it harmonize with the preexisting body of law." This rule was quoted with approval by Mr. Justice Galen in State v. Bowker,
"In construing a statute the court must, if possible, ascertain and carry into effect the intention of the legislature enacting it (Power v. Board of Co. Commrs.,
At the time section 5080 was enacted there were then upon the statute books of this state sections 4811 and 4812, Political Code 1895. Section 4811 provided that "all accounts and demands against a city or town must be submitted to the council," etc. Section 4812 provided that "all accounts and demands against a city or town must be presented to the council, duly itemized and accompanied by an affidavit of the party or his agent, * * * within one year from the date the same accrued; and any claim or demand not so presented within the time aforesaid is forever barred." These sections were amended by additions thereto, but without changing the provisions above quoted, by Chapter 30, Laws of 1903, p. 42. These sections were carried forward into the Revised Codes of 1907 as sections 3282 and 3283, without showing the amendments, the amendments being given as sections 3287 and 3288, *397 Revised Codes 1907. Sections 3282 and 3283 were repealed by Chapter 109, Laws of 1921, p. 109.
In Dawes v. City of Great Falls,
The per curiam opinion cites Henry v. City of Lincoln,
Indeed, it may then be said that the practical necessity for the city, governed and managed in the interests of its inhabitants and taxpayers, the ultimate payors, to have notice of the claim, before suit, of any injury or loss alleged to have been sustained in the discharge of its corporate or business functions and duties, is the primary reason that induced the legislature to enact the statute in question. In the absence of statute a city, free from any active wrongdoing, is not liable in a private action for damages occurring while in the exercise or discharge of its purely municipal and governmental functions and duties. (6 McQuillin on Municipal Corporations, sec. 2793, and Id. 1932 Supp.; City of Portsmouth v. Weiss, (1926)
The case of Frasch v. City of New Ulm,
Hughes v. City of Nashwauk, supra, is commented on in theper curiam opinion apparently with some degree of satisfaction to the effect that the supreme court of Minnesota has departed from its ruling in Frasch v. City of New Ulm, and that that state now is authority for the ruling in the instant opinion. The very contrary is the case. True, the Minnesota court reviews its former decisions, several of which are applicable here, and holds that notice before suit in their *402 instant case is not required. Why? Hughes v. Village ofNashwauk is one of the few cases in which a city or town was guilty of active wrongdoing. The case, said the court, "is not predicated on negligence, but on the creation and maintenance of a nuisance upon the premises occupied by the plaintiff." The court then holds: "The complaint in the present case alleges such an invasion of the plaintiff's premises and the creation of a nuisance thereon. In that situation it appears to be settled by our decisions above noted that an equitable action to enjoin the nuisance and recover damages therefor would not come within the statute requiring notice. It is clear also that under the decision in the Barber Case an action at law for damages to property would not come within the statute. If damages may be recovered in an action at law on account of a nuisance created and maintained by defendant on plaintiff's premises, there appears no valid reason for distinguishing between damages to property and damages to the person so far as the notice statute is concerned. That statute makes the cause of the damage, and not the kind of damage resulting, the test of whether notice is required. Such notice is required where the cause of the damage is a `defect in any bridge, street, sidewalk, * * * public works or any grounds or places whatsoever, or by reason of the negligence of any of its officers, agents,' etc. Here the cause of damage is alleged to be a nuisance created and maintained by the defendant on private property."
In Tonn v. City of Helena,
The fact that a defect exists in any street, public grounds or public works of a city may be known by its mayor or other officer, or even that they had actual knowledge of a person's injury or loss, does not dispense with notice. A city under the statute is entitled to have notice, before suit, of the particular person claiming to have sustained injury or loss, "to enable the city officials to investigate and to determine from such investigation whether the city shall settle the claim or defend against it, and, if the latter alternative is chosen, to secure evidence." (Berry v. City of Helena, supra.)
In Thomann v. City of Rochester, (1931)
The giving of the statutory notice is mandatory, hence it must be substantially complied with. (Nagle v. City of Billings, (1927)
The overwhelming weight of authority is clearly contrary to the conclusions reached in the per curiam opinion. Having in mind what is said herein relative to the management of municipal affairs, governmental and proprietary, reason, supported by almost universal authority, rebels against the adoption of any such ruling in Montana.
The failure of the plaintiff to give the mandatory notice within time, or at all, as required by the statute, is decisive of this case. The trial court was right in overruling the demurrer to defendant's answer and entering judgment on the pleadings dismissing the action.
I regret the inordinate length of this opinion, yet to make my position clear it could not be otherwise. *405
