Kennedy v. City of Des Moines , 84 Iowa 187 ( 1891 )

Beck, 0. J.

I. The answer of the defendant pleaded as a defense that the action was not commenced within six months after the injury was sustained, •and that no notice specifying the place where and circumstances under which the injury was inflicted was .given the defendant within ninety days after the injury, ■and therefore the action is barred, under chapter 25 of .Acts of the Twenty-Second General Assembly. The ruling of the court sustaining the demurrer to this answer presents the only question which we are required 'to consider upon this appeal.

II. Chapter 25 of Acts of the Twenty-Second General Assembly is as follows: “ Section 1. That in all Municipal Corporations: negligence: statute of limitations: effect upon tested rights. cases of personal injury resulting from defective streets or sidewalks, or from any cause originating m the neglect or failure of any municipal corporation or its ■officers to perform their duties in constructing or maintaining streets or sidewalks, no suit shall be brought .against the corporation after six months from the time of the injury, -unless written notice specifying the place and circumstances of the injury shall have been served npon such municipal corporation within ninety days after the injury. Section 2. All the provisions of this-act shall be applicable to all cities in this state now organized under special charter.”' The injury was inflicted June 20, 1887; the action was commenced March 21, 1889; the act just quoted was passed February 17, 1888, and took effect July 4, 1888. It will be observed that it was impossible for the plaintiff to comply with the statute, if it be regarded as applicable to-the case, as the time had passed which is prescribed by the act for giving notice when the act took effect. It-had also passed when the statute was enacted by the-general assembly. If, therefore, the statute is applicable to this case, the remedy which existed when the statute was enacted and took effect is cut off, and the plaintiff is by the statute deprived of all remedy upon a valid subsisting claim. But this court will not so-construe the statute as to give it that effect, whereby property rights may be disturbed. It will rather so construe the statute as to protect rights accruing before it was enacted, so that it will not deprive the citizen of property he holds in a valid claim by taking away all remedy to enforce it. The statute is a limitation upon actions of the character of this one. It is a familiar doctrine that it is not competent for the legislature by a statute of limitation to take away all remedies existing upon causes of action, and by this exercise of power the legislature will b ar recovery thereon. Such statutes, to accord with constitutional guaranties, must preserve a reasonable time wherein actions may be brought. If this be not expressly done, the courts read the legislature’s will as expressed in the statute to be, that existing rights are not intended to be cut off.. It will therefore be presumed in this case that it was not the purpose of the legislature that the statute should be applied to causes of action subsisting when the act went into effect. An act, the language of which, impairs vested rights or takes wholly away remedies, will be so construed that it will have a prospective effect, and will not interfere with constitutional guaranties as to rights of property. Cooley on Constitutional Limitations, pp. 184, 185, 366; 13 American & English Encyclopedia of Law;, 695, 696, et seq., with notes. These familiar doctrines need in their support the citation of no other authorities.

- III. The ground of the motion for a new trial, and the rulings of the district court thereon, do not appear in the abstract upon which the case is submitted to us. The decision of the court upon the motion cannot, therefore, be reversed upon this appeal.

IY. The other members of the court concur in the result I announce, but do not express any opinion as to the constitutional question discussed. They are content with the view that the statute in question was not designed to have a retrospective effect.

The judgment of the district court is aeeirmed.