213 N.W. 557 | Minn. | 1927
The injury occurred on August 23, 1924. The city charter provides that no action against the city for an injury shall be maintained "unless such action shall be commenced not less than ten days after and within one year from the happening of the loss or injury, nor unless a written notice to the city council of such loss or injury, stating the time, place and circumstances thereof * * * shall have first been presented to the city council, or filed with the city clerk, within thirty days after the alleged loss or injury. Such notice shall not be required when the person injured or suffering loss shall in consequence thereof be bereft of reason." Minneapolis Charter 1920, c. 8, § 19.
Notice was given on January 23, 1925. The city had actual knowledge of the injury within 30 days after its occurrence. The action was commenced in February, 1925.
1. In this state and in most of the western states a city is liable for injuries resulting from dangerous conditions in its streets. Such a liability did not exist at common law and is to be considered as one imposed directly or indirectly or impliedly by statute. In Nichols v. City of Minneapolis,
When a statute or charter requires that a notice of injury be given the municipality the giving of such notice is an essential part of the cause of action. Without it there is no cause of action. Nichols v. City of Minneapolis,
The same principle is applied in other cases where a right is given and a condition attached as a part of the cause of action. Thus in William Danzer Co. Inc. v. Gulf S.I.R. Co.
2. Some cases hold that a statute requiring such a notice does not apply to minors unable to give notice. McDonald v. City of Spring Valley,
The Minneapolis charter makes but one exception. That is when one in consequence of the injury is bereft of reason. If the court makes another it engrafts it upon the charter by construction. The charter makers were satisfied with one. Whether there should be others was a matter of legislative policy. There are arguments of policy on one side and the other, but they are not for us. In this *61 connection the views of Judge Caldwell in Morgan v. City of Des Moines (C.C.A.) 60 F. 208, in the circuit court of appeals of this circuit, relative to the practical desirability of exempting a minor from the statute of limitations, may be consulted with interest.
3. The claim chiefly urged is that the failure to serve notice was remedied by L. 1925, p. 477, c. 376, curative in form, approved April 24, 1925, as follows:
"That all notices of claims pursuant to Section 1 of Chapter 391, General Laws, 1913, or pursuant to any charter provision filed against cities of the first class or the Board of Water Commissioners thereof during the month of January or February, 1925, for damages claimed to have been suffered within five months prior to the time of serving said notice and subsequent to the thirty-day period fixed by said act, or any other period fixed by said charter if otherwise regular, shall be and hereby are declared valid and sufficient for all purposes, notwithstanding such notices were not filed within the thirty days specified in said act or written [within] any other period fixed by said charter and shall not be affected in any manner by reason of such fact, provided such notices were in fact filed with the proper body during such month of January or February, 1925, and provided further that said city or said Board of Water Commissioners shall have had actual knowledge of said claim or injury and the circumstances thereof within thirty days after the happening of the same."
The city claims that the statute is unconstitutional as special or class legislation. The constitution, art. 4, § 33, provides that no special law shall be enacted when a general law can be made applicable and that whether a general law can be made applicable is a judicial question; and that the legislature shall pass no local or special law regulating the affairs of any city. Section 34 requires the legislature to provide general laws for the transaction of any business that may be prohibited by § 33, and that all such laws shall be uniform in their operation throughout the state.
Section 36 permits the legislature to provide general laws relating to the affairs of cities the application of which may be limited to *62 cities of over 50,000 inhabitants, etc. In pursuance of the power granted the legislature has classified cities, and cities having more than 50,000 inhabitants belong to the first class. G.S. 1923, § 1265. The cities within this class are Minneapolis, St. Paul and Duluth.
It may be conceded that the statute is not objectionable as special legislation because confined to cities of the first class; but, as stated in Lodoen v. City of Warren,
The 1925 statute is a clear case of special or class legislation. It applies to three cities in the state, Minneapolis, St. Paul and Duluth. The basis of classification is fixed at the time of the legislation and no other city ever can come into the class. State ex rel. Hilton v. Ind. Sch. Dist.
The statute definitely identifies the injury to which it applies. Notice must have been given in January or February, 1925, and more than 30 days after the injury; therefore the injury could not have occurred later than in January, 1925. And since the damages must have been suffered within five months prior to the time of serving the notice the injury must have occurred not earlier than *63 say August 1, 1924. And if all these requisites concur there is no cause of action unless the city had notice within 30 days of the accident. This is a wholly arbitrary classification applicable to those residing within the three cities of the first class.
We do not fail to note that a statute special in form is not necessarily unconstitutional if curative and temporary in character. State ex rel. Bd. of Ed. v. Brown,
We base our decision upon the unconstitutionality of the 1925 act as special legislation.
The briefs discuss at length other claims which we do not decide. They mention the bar of the statute of limitations. There is no real question of the statute of limitations, for the year had not run when the action was begun. It may be noted that the question whether a personal cause of action may be revived by the repeal of the statute of limitations or by any sort of legislation has not been decided in this state. In Kipp v. Johnson,
The plaintiff argues that it was within the power of the legislature, since the municipality is but an arm of the legislature, to put upon the defendant city an obligation regardless of the giving of the notice; that is, to declare on April 24, 1925, that there was a cause of action though the day before there was not and never had been. He cites Merchants Nat. Bank v. City of East Grand Forks,
Order affirmed. *65