Kraft v. City of Madison

98 Wis. 252 | Wis. | 1898

Newmaít, J.

The real point in contention is whether the circuit court can get jurisdiction of the cause of action in any way, other than by an appeal from an order of the common council disallowing the claim. The charter of the appellant provides (Laws of 1882, oh. 36, subch. VII, sec. 25) that no action shall be maintained against the city until the claim on which it is based shall have been first presented to-the common council for allowance. The determination of the common council disallowing the claim is made final, and a complete bar to any action founded on such claim, otherwise than by an appeal to the circuit court for Dane county as therein provided. Secs. 26-28. The effect of these provisions of the charter is that no action can be maintained until the claim on which it is based has been presented to the common council for allowance. If the claim is allowed, an action upon it is forestalled and unnecessary. If it is-disallowed, no action can be instituted for its recovery. The exclusive remedy in that case is the appeal provided by the charter. So it is always withjn the power of the common council to prevent the institution of an action against the city in the usual way by acting upon the claim. By allowance, it forestalls an action. By disallowance, it substitutes an appeal for the ordinary action. These restrictions on the mode of enforcing claims against the city are of some substantial advantage to the city. The claimant, to make his appeal effectual, must give a bond to indemnify the city against the costs of the appeal. And, so the city is protected against the costs of defending against ill-founded or fictitious claims. This protection it can always command by proper action on the claims.

Nut there is no pro.vision in the charter for the case of an ■entire omission of the common council to act upon the claim,— either to allow or to disallow it. The institution of an action in the ordinary way upon the claim in that case is not expressly forbidden by the charter. It would seem that in that case the claimant should be remitted to the ordinary remedy for the enforcement of his right; for surely the ordinary remedies of parties are not taken away, except by express prohibition or very plain implication. These provisions of the charter, being intended for the benefit of the city, can be waived by it. No doubt, the common council is to be allowed a sufficient and reasonable time in which to make audit of the claim. It is entitled to so much time for that purpose as is reasonably necessary to enable it fairly to investigate the facts out of which the claim arises and on which it rests, and to inform itself of its justness and legality. Until the expiration of such reasonable time, the city should not be subject to be harassed by an action. But, by omitting to act upon the claim within such reasonable time, it may fairly be deemed to waive the benefit of its exemption from an action instituted in the usual way. It cannot by inaction stand off the claimant indefinitely.

It would seem that the five months which elapsed between the presentation of the plaintiff’s claim to the common council for audit and the time of the commencement of the action was, at least prima facie, reasonably sufficient to enable the council to properly investigate and audit the claim. So it is deemed that the complaint states facts which show, at least presumptively, that the .common council, by inaction, bad waived the right of the city to be exempt from an action on the claim instituted in the usual way.

But it is urged that the claimant had a remedy, by way of mandamus, to compel the common council to act upon his glaiin, and that he was limited to that remedy. Doubtless, that remedy was open to him. But that affords a remedy ■only by a circuitous route. After mandamus had done its utmost office, it might easily happen that he would be no nearer to his ultimate recovery. He might still be put to his appeal and a full prosecution of his claim in the circuit court. The law favors directness, rather than circuity, of action. The plaintiff was not limited to the remedy by mandamus. He had an election. It was within his election to bring his action in the usual way, directly against the city. Sharp v. Mauston, 92 Wis. 629.

By the Oouri.— The order of the circuit courtis affirmed, and the cause is remanded for further proceedings according to law.