Harris v. City of Fond Du Lac

• Decision Date: 26 September 1899
• Citation: 104 Wis. 44,80 N.W. 66
• Parties: HARRIS v. CITY OF FOND DU LAC.
• Court: Wisconsin Supreme Court

104 Wis. 44

80 N.W. 66

HARRIS

v.CITY OF FOND DU LAC.

Supreme Court of Wisconsin.

Sept. 26, 1899.

Appeal from circuit court, Fond du Lac county; Michael Kirwan, Judge.

Action by Caleb S. Harris against the city of Fond du Lac. From an order overruling a demurrer to the complaint, defendant appeals. Reversed.

The complaint set forth that on August 23, 1897, plaintiff was injured by reason of a defective street in said city; that, by reason of such injuries, he was rendered insensible for a long time, and during the resulting illness suffered such severe pains as to render him physically and mentally unable to attend to business or to correspond with his attorney; that, as soon as he was able, and on the 16th of September, 1897, he caused written notice to be given said city, by serving the same upon B., city clerk of said city, and upon E., mayor of said city, personally. The demurrer was upon the ground that the complaint stated no cause of action, for that it showed no service of notice upon the city within the time required by law.

O. H. Ecke, E. W. Phelps, and Maurice McKenna, for appellant.

Cooper, Simmons & Nelson, for respondent.

DODGE, J. (after stating the facts).

The charter of Fond du Lac, as amended (section 4, c. 435, Laws 1889), declared that no suit should be maintained unless a notice was served, within 30 days after the injury, upon the street commissioner or sidewalk superintendent of the city, or an alderman of the ward where the injury occurred, and provided: “But when the person so injured shall in consequence thereof be bereft of reason, the notice shall not be required until thirty days after he has been fully restored to consciousness.” By chapter 236, Laws 1897, section 1339, Rev. St. 1878, is amended so as to provide that no action for injuries from defective highways shall be maintained unless notice is given within 30 days, in case of any county or town, and 15 days, in case of any city or village, to the county clerk of the county, supervisor of the town, one of the trustees of the village, or the mayor or city clerk of the city.

The question debated by counsel, and which we therefore take up for consideration, was whether the amendment of section 1339, made in 1897, applied to and controlled in the city of Fond du Lac, or whether the charter of that city was still in force upon the subject of notice. The somewhat extended argument of counsel for respondent, that the notice clause, especially that in case of one bereft of reason, in the city charter, should not be repealed by implication unless the general act is clearly repugnant, needs but little consideration. Repugnancy is too plain for discussion between a provision that a notice must be given in all cases within 15 days, and one declaring that in some cases it need not be given until 30. The question is at once broader and more simple. Was it intended by the legislature, in the enactment of chapter 236, Laws 1897, to thereby extend the provisions of section 1339 over all cities, or to except therefrom cities having special charter provisions on the general subject covered by it and inconsistent with it? Section 4986, Rev. St. 1878, provided that the laws contained in the Revised Statutes shall apply to, and be in force in, every city and village, so far as the same...