Kelley v. City of Madison

43 Wis. 638 | Wis. | 1878

Cole, J.

This action is brought to recover damages for a personal injury alleged to have been sustained by the female plaintiff in consequence of falling into a ditch, or excavation, which had been cut across and through one of the public streets and sidewalks of the city; and which ditch, it is alleged, was left open by the defendant without any guard or protection to prevent injury to persons passing along the street and sidewalk. The complaint was demurred to on various grounds, and the demurrer sustained. The learned counsel for the defendant, in support of the order appealed from, rested his argument in this court on one point. He insisted that, under the provisions of law and of the city charter, no action can he maintained in the circuit court against the city for the injury complained of, except hy appeal from the decision of the common council disallowing the claim. The complaint shows that the plaintiffs made a demand of the common council for compensation for the injury, which claim was rejected. It is conceded that no appeal was taken-from the decision of the common council; and the sole question in the case is, Had the circuit court jurisdiction of the action? The provisions of the city charter upon which defendant’s counsel relies, are the following:

“ Sec. 24. No action shall be maintained hy any person against the city of Madison upon any claim or demand until such person shall first have presented his claim or demand to the common council for allowance.”

“ Sec. 25. The determination of the common council disallowing in whole or in part any claim of any person shall he final and conclusive and a perpetual bar to any action in any court founded on such claim, except that such person may appeal to the circuit court, as provided in sec. 27 of this chapter.”

Sec. 27 prescribes the time and manner of taking an appeal from the action of the common council. (Oh. 500, P. & L. Laws of 1868, suhch. YII.)

Now the inquiry is, Do these provisions relate to and fairly include a claim or demand arising out of a personal tort? We are clear in the opinion that they do not. It is true, as was argued by the counsel for the defendant, the words “claim” and “demand” are words of very comprehensive meaning, broad enough, perhaps, to include an action for a personal tort. C. J. Denio, in Howell v. The City of Buffalo, 15 N. Y., 512-523, when considering a kindred question, says: “ Demands or claÁms are the largest words of that class, and clearly embrace a cause of action founded upon a trespass to personal property. Littleton says that the most beneficial release which a man can hare, is a release from all demands (§ 508); and Lord Coke declares that a release of all claims extends to all demands.” In Scott v. Morris, 9 S. & R., 123, the question was as to the signification of the word “ demand ” as used in a deed of assignment. Tilghman, C. J., says: “ The word demand is very comprehensive. It includes everything which the creditors would have been entitled to recover by suit. And there is no doubt that interest might have been recovered, as well as principal.” See Mr. Justice Story’s definition of the word “ claim ” in the Prigg case, 16 Peters, 615. Also 1 Burril’s Law Dic., word “ Demand;” 1 Bouv. Law. Dic., same word. It is possible that the words “ claim or demand,” as used in the above provisions, embrace a cause of action for a trespass to personal property; they certainly would include interest as well as principal upon a liquidated demand against the city.

But whatever meaning might be attached to these terms under other circumstances, it is plain from the connection in which they are used in the charter, that they do not include a claim or demand growing out of a personal tort. On examination, it will be seen that these words are used interchangeably as equivalent terms in subch. YII. It is obvious that the word “ claim ” in the 25th section must be understood as meaning the same as “ claim or demand ” in the 24th section. In the two sections immediately preceding section 24, the word “demand” is used in connection with the word “ account,” and in the same sense, clearly showing that the former term is qualified and limited in its meaning. “All accounts or demands against the city, before the same shall be allowed, shall be verified by affidavit, * * and any person wbo shall falsely swear to any such account or demand, shall be guilty of perjury.” Sec. 22. “ No money shall be appropriated or drawn out of the city treasury except in payment of accounts or demands allowed by the common council.” Sec. 23. The maxim noscitur a sociis applies here, and determines the proper interpretation of the language. The words “ claim ” and “ demand ” in section 24 have reference to matters or claims arising on contract; possibly by a liberal construction they may be held to include injuries to personal property; but we do not think they can be said to embrace a claim for a j>ersonal tort. It is said by counsel, that the industry with which the legislature use the words “ claim ” and “ demand ” all through the chapter, precludes the idea that it was not the intention to include a claim like the one in suit. But we fail to see evidence of any such intention on the part of the legislature. On the contrary, as we have said, the words “ claim ” and “demand” seem to be used as equivalent terms in this chapter, and as synonymous with the -word “ account.” Consequently it is necessary to give them a more limited meaning than that which is sometimes assigned to them. Much of the reasoning in Stringham v. The Board of Sup’rs of Winnebago County, 24 Wis., 594, as to the extent of the authority of the county board to examine and settle accounts against the county, is in point in ascertaining the power vested in the common council by these provisions in the charter. The opinion likewise of the chief justice in Gibson v. Gibson \ante¡ p. 23], construing the meaning of the expression “ choses in action ” as used in subd. 14, sec. 1, ch. 5, R. S., has a direct bearing upon the question under discussion.

We have examined the authorities cited by counsel in support of the position that sec. 24 extends to an action for a personal tort, but find nothing in them to change our views on the subject. The statutes under which those cases arose are different from the provisions of the city charter, and this fact alone readers those decisions of little value upon the question. It is said that the legislature adopted section 24 in furtherance of a public policy, to prevent needless litigation and save the city unnecessary expenses and costs by affording an opportunity to amicably adj ust all claims against the city of every nature before suit brought. We can only arrive at the intention of the legislature from the language used in the charter, and we are unable to hold that section 24 is broad enough to include the claim for the injury complained of.

This being our view, it follows that the order sustaining the demurrer to the complaint must be reversed, and the cause must be remanded for further proceedings according to law.

By the Court. — So ordered.