Reed v. City of Madison

• Decision Date: 11 January 1916
• Citation: 155 N.W. 954,162 Wis. 94
• Parties: REED v. CITY OF MADISON.
• Court: Wisconsin Supreme Court

162 Wis. 94

155 N.W. 954

REED

v.CITY OF MADISON.

Supreme Court of Wisconsin.

Jan. 11, 1916.

Appeal from Circuit Court, Dane County; E. Ray Stevens, Judge.

Claim of D. K. Reed against the City of Madison was disallowed in part by its council, and from an order of the circuit court on appeal by Reed from the decision of the council, the City appeals. Reversed and remanded, with directions.William Ryan, of Madison, for appellant.

Hill & Spohn, of Madison, for respondent.

BARNES, J.

Plaintiff presented an unverified claim to the common council of the city of Madison for $510.75. The council passed a resolution appropriating $50 in full payment thereof. From the decision of the council plaintiff appealed to the circuit court. In that court he filed a formal complaint, to which the defendant demurred on the ground that the court had no jurisdiction of the persons of the litigants or of the subject-matter of the action and on the further ground that the complaint did not state a cause of action. From an order overruling the demurrer, the defendant appeals.

[1] The charter of the city of Madison (chapter 36, Laws 1882) provides that all accounts and demands against the city, before the same shall be allowed, shall be verified by affidavit, except claims for salaries and amounts previously fixed or determined by law; that no action shall be maintained by any person against the city upon any claim or demand until such person shall have presented his claim or demand to the common council; that the disallowance in whole or in part of any claim shall be final and conclusive and a perpetual bar to any action in any court founded on such claim, except that an appeal may be taken to the circuit court as otherwise provided; and that in case of a total or partial disallowance of a claim the council shall not thereafter entertain such claim again, but the claimant may, if he desires, prosecute the same by appeal to the circuit court and not otherwise. Sections 23, 25, 26, and 27, c. 7, City Charter.

The appellant takes the position that the council had no jurisdiction to act on an unverified claim, and that the action taken on the claim presently involved was void, and that the circuit court could obtain no jurisdiction by appeal unless the common council had taken lawful action on the claim. The circuit court held that the matter of verification was not jurisdictional, but the want of it was an objection which the common council could waive and which it did waive here by acting on the claim, and hence it decided that the demurrer was not well taken. As will be seen from a statement of these contentions, the question before us is: Did the circuit court have legal authority to determine the rights of the plaintiff on the appeal?

Some of our city charters have provisions requiring the service of a notice or the presentation of a claim to a city council as a condition precedent to the maintenance of an action, but also provide that when action is brought it may or must be brought in court in the manner in which original actions are ordinarily commenced. Others provide that the sole remedy of the claimant in case of disallowance is by appeal from the decision of the common council. The distinction between the two classes is pointed out in Bunker v. Hudson, 122 Wis. 43, 99 N. W. 448. As to the first class of cases it is held that the requirement of presentation as a condition precedent to bringing the action is in the nature of a statute of limitations which may be waived. Hill v. Fond du Lac, 56 Wis. 242, 14 N. W. 25;O'Connor v. Fond du Lac, 109 Wis. 253, 85 N. W. 327, 53 L. R. A. 831; Bunker v. Hudson, supra.

As to the second class of cases it is held that unless the preliminary requisites are substantially complied with, the court on appeal gets no jurisdiction of the subject-matter of the action. Telford v. City of Ashland, 100 Wis. 238, 75 N. W. 1006;Seegar v. City of Ashland, 101 Wis. 515, 77 N. W. 880;State ex rel. Ashland Water Co. v. Bardon, 103 Wis. 297, 79 N. W. 226;Morgan v. Rhinelander, 105 Wis. 138, 81 N. W. 132;Oshkosh Water Works Co. v. City of Oshkosh, 106 Wis. 83, 81 N. W. 1040;Id., 109 Wis. 208, 85 N. W. 376, 95 Am. St. Rep. 870;O'Donnell v. New London, 113 Wis. 292, 89 N. W. 511;Morrison v. Eau Claire, 115 Wis. 538, 92 N. W. 280, 95 Am. St. Rep. 955. Some of the cases cited go to greater extremes than the court would be inclined to go at the present time if the questions were before us as original ones. The statement found in some of the cases, that the circuit court has no jurisdiction over the subject-matter of the action, is hardly accurate. It seems anomalous to say that the circuit court has not jurisdiction of the subject-matter of an action brought to recover an ordinary account against a city. It is a court of general jurisdiction of law and equity cases, and it is difficult to see how jurisdiction over subject-matter is affected by the irregularity of preliminary proceedings.

The Legislature has the undoubted right to require claimants against municipal corporations to file their claims for audit and allowance before suit is commenced, and the municipality is subjected to cost and expense. In the interest of the public and to prevent fraud, it has the right to say that these claims must be verified, and that no action can be taken thereon until they are, and to make the presentment of a claim the commencement of an action, and to make the remedy by appeal from the action taken thereon exclusive, and further to provide that the appellate court shall not act on an appeal unless the claim was presented in such form that the municipal officers might properly consider it, nor unless they did consider it or refused to do so within the time limited by law.

It would be more correct to speak of the restriction against court action as a prohibition against the exercise of jurisdiction which inheres in the court over the subject-matter of the suit, rather than to say that it is a denial of such jurisdiction. Certain conditions precedent must exist before the court is permitted to exercise its jurisdiction. In practice the distinction is not very material, but it is suggested in the interest of accuracy.

The immediate question before us is: Had the city council the right to act on the claim filed? If the failure to verify was an irregularity which it might waive by taking action on the claim, then the decision of the circuit court was right. If, on the contrary, the action was a mere nullity, then under the construction placed on similar statutes in the cases cited the court had no power to proceed, because there never was any presentation to the council, and without presentation the court might not exercise jurisdiction. In passing upon this question, it might be said that the statutes dealing with the verification and presentation of claims against counties and the powers and duties of county boards in reference thereto and the matter of appealing from the action taken are not materially different from the provisions of the Madison charter in so far as this question is involved. Sections 677, 678, 682, 683, ...