Morrison v. City of Eau Claire

• Decision Date: 11 November 1902
• Citation: 115 Wis. 538,92 N.W. 280
• Parties: MORRISON v. CITY OF EAU CLAIRE.
• Court: Wisconsin Supreme Court

115 Wis. 538

92 N.W. 280

MORRISON

v.CITY OF EAU CLAIRE.

Supreme Court of Wisconsin.

Nov. 11, 1902.

Appeal from circuit court, Eau Claire county; James O'Neill, Judge.

Action by Peter B. Morrison against the city of Eau Claire. From an order sustaining a demurrer to a complaint, plaintiff appeals. Affirmed.

Appeal from order sustaining demurrer to complaint which alleges injury to the plaintiff on the 8th day of March, 1901, from a pile of débris which had accumulated across a perfectly good sidewalk. Said débris, consisting of stone, brick, cement, and ice, had been allowed to remain for a period of about a month prior to the injury, which is alleged by the complaint to have constituted an insufficiency and obstruction and a dangerous place upon said sidewalk. The complaint alleges notice of the injury to the city on the 18th day of March; that on June 22d he filed a certain paper describing his accident and his injuries, but declaring that it was not filed as a formal claim under any provision of the charter, but merely to enable a settlement without litigation; that on July 17, 1901, the council passed a resolution wholly disallowing plaintiff's claim; that plaintiff has at all times been without means or property to procure a bond for costs to enable him to appeal from the disallowance of the claim in the manner provided by the charter of the defendant city. The action was commenced by summons and complaint. The grounds of demurrer were--First, that the complaint does not state facts sufficient to constitute a cause of action; second, that the court had no jurisdiction either of the person of the defendant or of the subject of the action; third, that plaintiff has not legal capacity to sue, for the reason that the charter prohibits suit, and authorizes in lieu thereof an appeal to the circuit court; and, fourth, that the action was not commenced within the time limited by law, namely, the Eau Claire charter, specifying sections 22-25, and 26 of chapter 7 of that act (viz., chapter 184, Laws 1889). The order sustaining the demurrer does not declare which ground of demurrer is sustained, but certain of its recitations indicate as principal ground the noncompliance with the special provisions of the sections of the city charter above enumerated. The charter of the city of Eau Claire, by sections 22-25, c. 7, substantially requires that all claims and demands, either ex contractu or ex delicto, against the city, shall be first filed with the city clerk for action by the common council, and provides, in case of disallowance or failure to act, which is made tantamount to disallowance, for appeal to the circuit court within 20 days; such appeal to be taken by giving a notice, accompanied by a bond with sufficient surety, conditioned for the faithful prosecution of the appeal and payment of all costs adjudged against the appellant. Said sections also provide that no suit shall be otherwise brought, and that the determination of the common council shall be final and conclusive, and a perpetual bar to any action in any court founded on such claim, except by said method of appeal. Section 26 of the same charter further provides that the city shall not be liable, nor shall any action be maintained against it, for any damages or claims founded upon any injury caused by reason of any defects or any insufficiency or want of repair of any bridge, sluiceway, road, sidewalk, or street in said city, unless the same be commenced by filing the claim with the city clerk within 90 days from the time of the accident.H. H. Hayden (H. B. Walmsley, of counsel), for appellant.

James Wickham, for respondent.

DODGE, J. (after stating the facts).

The first question in natural sequence is whether the circuit court had any jurisdiction over plaintiff's demand, it not having been filed with the city clerk nor brought into court by appeal. It would seem that this question has been answered beyond further debate by a line of cases in this court reaching from Koch v. City of Ashland, 83 Wis. 361, 53 N. W. 674, up to one of its very latest utterances. Those cases are Mason v. City of Ashland, 98 Wis. 540, 74 N. W. 357;Telford v. Same, 100 Wis. 238, 75 N. W. 1006;Seegar v. Same, 101 Wis. 515, 77 N. W. 880;Morgan v. City of Rhinelander, 105 Wis. 138, 81 N. W. 132;Oshkosh Waterworks Co. v. City of Oshkosh, 106 Wis. 83, 81 N. W. 1040;Miller v. Crawford Co., 106 Wis. 210, 82 N. W. 175;Oshkosh Waterworks Co. v. City of Oshkosh, 109 Wis. 208, 85 N. W. 376;O'Donnell v. City of New London, 113 Wis. 292, 89 N. W. 511. In all those cases it is held that charters similar in general effect to that before us, including the general city charter, make procedure by presentation to the council and appeal therefrom to the circuit court, by steps in such statutes prescribed, essentials of jurisdiction over the subject-matter of any claim of the character required to be presented. The remark in Davis v. City of Appleton, 109 Wis. 580, 85 N. W. 515, that a charter provision, differing in some respects at least from that now before us, was to be deemed only a statute of limitation, was made, not with reference to a claim required to be presented before the council, but in an action for an injunction against the erection of an unlawful structure by the city upon plaintiff's lands. If the language of that case might be construed as applicable to attempted suits upon claims against the city based on liability created by statute, it was purely obiter, and cannot overcome the direct authorities above cited. Under these decisions there can be no doubt that the demurrer, being founded, as one of its grounds, upon the want of jurisdiction, was properly sustained, if the legislation embodied in chapter 184 of the Laws of 1889, known as the “Eau Claire Charter,” be valid,--a question which may be considered later. This view is in no wise inconsistent with the further holding by this court that in actions against cities not founded upon any common-law right, but upon rights created and existing only by statute, such steps by way of presentation of claim and appeal from disallowance are essential elements and conditions of the existence of the cause of action as well, so that they, or many of them, are raised by a demurrer asserting merely insufficiency of facts. They may be both conditions of the court's jurisdiction and of the existence of any right of action in the plaintiff.

2. The next question in logical sequence is whether the complaint states facts sufficient to constitute a cause of action. Were we to take the appellant at his word, and assume, as he asserts, that the complaint does not state any cause of action created by section 1339, Rev. St. 1898, for an insufficiency or want of repair in any street, a negative answer to this inquiry would be readily reached. Certainly no other cause of action is stated. Appellant's contention is that he has attempted to bring suit for damages resulting from the maintenance of a nuisance by the city, because his injury results from the presence of an unlawful extraneous substance in the street not any part of it, namely, a pile of mortar and bricks or other débris, but he does not charge the city with any responsibility, either by act or consent, for such substance being placed there originally. He contents himself with asserting its presence, and the city's failure to remove it from the street. This is no more than an omission of the city's statutory duty to keep the highway within its limits reasonably safe for travel thereon, obviously a governmental function performed on behalf of the state at large, from which the municipality derives no pecuniary benefit. From such omission, but for express statute, arises no right of action in favor of one toward whom this mere governmental duty is owed, such as a traveler. Stilling v. Town of Thorp, 54 Wis. 528, 532, 11 N. W. 906, 41 Am. Rep. 60;McLimans v. City of Lancaster, 63 Wis. 596, 600, 23 N. W. 689;Reed v. City of Madison, 83 Wis. 171, 177, 53 N. W. 547, 17 L. R. A. 733;Daniels v. City of Racine, 98 Wis. 649, 74 N. W. 553;Folk v. City of Milwaukee, 108 Wis. 359, 84 N. W. 420. Counsel, with not very wise expenditure of industry, has collected numerous decisions by other courts, notably of the United States, tending to a different view. These can hardly have weight, however, against the fully established rule in this state as to the character and liabilities of municipal corporations created by the legislature of Wisconsin under our own constitution. Such alien decisions distinguishing cities and villages from towns and counties with reference to their common-law liability to suit for neglect of duty to maintain safe highways have long since been fully weighed by this court, and have been repudiated in favor of the contrary view maintained in Massachusetts, whence we in so large measure took our highway laws. Daniels v. City of Racine, supra.

Upon the text that a pile of rubbish in a street is an obstruction, and therefore a nuisance, for which liability rests on the city at common law, appellant cites, with much verbosity of quotation, an array of decisions which, on examination, prove to be without relevancy. Thus, in Hughes v. City of Fond du Lac, 73 Wis. 380, 41 N. W. 407, a roller left in the street by the city was held a nuisance for which liability existed. That case, with Little v. City of Madison, 42 Wis. 643, 24 Am. Rep. 435, where was express license to place wild-animal exhibit in street, are illustrations of city's liability to the traveler for creating nuisances in the street, not as a part thereof, nor in process of performing, though improperly, its duty of making or maintaining the street. They present instances of the doing of unlawful acts, and are distinguished from improper or negligent doing of the lawful act of constructing the highway, by such cases as Kollock v. City of Madison, 84 Wis. 458, 464, 54 N. W. 725;...