67 Iowa 410 | Iowa | 1885
The question presented is as to whether it is necessary as a condition precedent to a right of action against an incorporated town or city, upon a claim arising by reason of a tort, that the claim should be presented to the council of the town or city. In our opinion it is not. No case has been cited to us in which it has been so held, and we are not aware that in all the numerous cases of this kind brought against an incorporated town or city, and appealed to this court, it has been thought necessary by any plaintiff to aver that before bringing action he presented his claim to the town or city council. If we should now hold that such presentation is necessary as a condition precedent to a right of action, it apj>ears to us that the profession would be greatly surprised, and it may be that not a few important rights would be lost. We should hesitate, therefore, to adopt the rule which the defendant contends for, even if the reasons for doing so were somewhat stronger than they are. But, when we come to look at the reasons urged for adopting it, we find them unsatisfactory. It is not contended that there is any common-law rule which required such presentation, nor is it contended that there is any statute which expressly requires it. The statute relied upon is section 489 of the Code, which is in these words: “All ordinances and resolutions, or orders for appropriation or payment of money, shall require for their passage or adoption the concurrence of a majority of the trustees of any municipal corporation.” The defendant also relies upon a provision in chapter 146 of the Acts of the Eighteenth General Assembly, “that, in incorporated towns, ordinances, resolutions, or orders for the appropriation or payment of money, shall require for their adoption the concurrence of four trustees, or three trustees and the mayor.” The defend
The defendant cites District Twp. of Spencer v. District Twp. of Riverton, 56 Iowa, 85. But in that case the claim in question was of a very different character. It seems clear that by section 1733 of the Code the directors of a district township are made an anditing board. The provision is that “the board of directors shall audit and allow all just claims against the district.” But the claims contemplated-are those arising upon contract. The district is not liable for any other. Lane v. District Twp. of Woodbury, 58 Iowa, 462. The reasoning, then, employed in the case cited has reference to claims arising upon eontráct. Such claims arise in the course of the business of the corporation. If they are just, they would ordinarily require only such examination as is expressed by the word “ audit.” It would, for the most part, consist of the comparison of the claim with the vouchers. That class of claims is always properly the subject of audit, and, when made against a corporation, public or private, there should be some board, committee or person having the power to audit them.
Whether, in the absence of a statutory provision expressly constituting an auditing board, they must be presented as a condition precedent to a right to sue upon them, we need not determine, because the plaintiff’s claim is not of that kind. It did not arise in the course of business, and is not the subject of “ audit,” in the proper sense of the word. The examination of such a claim may, and usually would, require the aid of experts and other means of determination, which would render the examination inconsistent with the
Reversed.