Campbell v. City of Helena , 92 Mont. 366 ( 1932 )

The view I take of this case compels me to dissent. Called to sit herein in the stead of Mr. Justice Galen, one of the ablest jurists this state has produced, who himself dissents upon occasion, I would fain be in harmony with my brethren on the law of the case. To be so in this instance, however, would cause me to feel that I have failed in the conscientious discharge of the imperative duty resting upon me, not to remain silent — the easy way — but to set forth the reasons for the faith within me, even though I stand alone.

Plaintiff seeks to recover damages from the defendant, a municipal corporation, for injuries allegedly sustained in being made ill with typhoid fever on or about the thirteenth day of September, 1929, from the drinking of contaminated water knowingly furnished and delivered the plaintiff at his residence by the defendant through its waterworks system for compensation during the four successive weeks immediately preceding said date.

The defendant in its answer, among other things and as a second and further answer and defense, alleged that the contamination was caused by sewage escaping through a break and defect in a sewer and into the water system by reason of defects in the water-pipes near the break; and further that the plaintiff did not, within sixty days, or at all, after the time of his injury or loss, nor did anyone in his behalf, or at all, give to the city council any notice thereof.

The plaintiff moved to strike this second and further answer in its entirety, which being denied, interposed a general demurrer thereto, which being overruled, the plaintiff refused to plead further and judgment on the pleadings was thereupon entered. The demurrer admits the allegations of fact if well pleaded, which they are if the statute is applicable.

The statute relied upon by the defendant reads in full as follows: "Before any city or town in this state shall be liable for damages for, or on account of, any injury or loss alleged to have been received or suffered by reason of any defect in any bridge, street, road, sidewalk, culvert, park, public ground, ferry-boat, or public works of any kind in said city or town, the person so alleged to be injured, or someone in his behalf, shall give to the city or town council, or trustee, or other governing body of such city or town, within sixty days after the alleged injury, notice thereof; said notice to contain the time when and the place where said injury is alleged to have occurred." (Chap. 93, p. 165, Laws of 1903.)

The above statute, enacted by the Eighth Legislative Assembly in 1903, has never been amended, was carried into the Revised Codes of 1907 of Montana as section 3289, and as section 5080 into the Revised Codes of Montana of 1921.

In Butte Machinery Co. v. City of Butte, (May, 1911)43 Mont. 351, 116 P. 357, this court inadvertently overlooked the title to the Act and held that it applied alike to injuries to person and to property. In Kelly v. City of Butte, (November, 1911), 44 Mont. 115, 119 P. 171, the error was pointed out and corrected. In reversing Butte Machinery Co. v. City of Butte, this court held that the Act applied to injuries to persons only and not to property. With this construction the Act has remained a part of the statute law of this state, without change or modification whatsoever, to the present time.

Counsel for appellant argue that the rule of ejusdem generis applies and controls the construction of the statute, section 5080, and in their brief say that the phrase "public works of any kind" is to take the meaning which it shares in common with preceding terms, that is, "places over which and on which the public may travel, or in which the public may gather, * * * a place of public travel or resort and not a subsurface water or sewer line." In doing so counsel had to carry in mind and give explanation to two preceding terms, namely, "park" and "public ground," and did so by the language used, "a place in which the public may gather or resort," in each of which water, living or subsurface, and sewer facilities as well, are necessary.

While the books contain a multitude of cases construing various statutes of a similar nature, requiring notice, the industry of counsel and research disclose apparently only one case, Winters v. City of Duluth, (1901) 82 Minn. 127,84 N.W. 788, construing in effect an identical statute including identical title with the Montana statute. From the large number of times in which the case has been cited, both federal and state, it may be aptly called a leading case on the question determined. The language of the decision is so apropos to the argument made that extended quotation therefrom is warranted. The case arose from injuries sustained by an employee stumbling upon an obstruction or projection in the floor of the pumping station connected with the waterworks system of the defendant city. No notice thereof was given the city council. The same contention was made there, as here, namely, "That the words `other public grounds,' following the word `streets,' in the title of the Act, must, under the rule of ejusdem generis, be held to mean grounds of the same general kind as those previously mentioned, and be limited to public highways and places where the general public have a right to be." Disposing of this contention, the court said: "If the words of the title `streets and other public grounds' were the only ones used to designate the public places in the body of the Act, the rule of construction involved might be controlling as to the legislative intent. But `canons of construction are not the masters of the courts, but merely their servants, to aid them in ascertaining the legislative intent.' * * * The rule that, where general words in a statute follow particular and specific words, the former must be limited to things of the same kind as those specifically mentioned, can be used only as an aid in ascertaining the legislative intent, and when that is apparent from the statute itself the rule has no application. (Suth. St. Constr., secs. 279, 280; Willis v.Mabon, 48 Minn. 140, 156, 31 Am. St. Rep. 626, 16 L.R.A. 281, 50 N.W. 1110.) Such is this case, as far as the title to the Act in question is concerned; for, when we turn to the body of the Act, it is perfectly obvious that the legislature did not intend to limit the words `other public grounds' to public grounds of the same kind as streets. The legislative intent, as declared in section 1 of this Act, is clear and specific. The intention is to require a notice of the injury to be given, as a condition precedent to the liability of any city to any person for any injury received by reason of any defect in any bridge, street, road, sidewalk, park, public ground, ferry-boat, or public works of any kind in such city. It would be absurd as well as discourteous to impute to the legislature an intention to limit the meaning of general words used in the title of the Act so as to defeat the expressed purpose of its enactment. * * *

"The statute expressly provides that, before any city shall be liable for any injury to any person by reason of any defect in any public ground or public works of any kind in the city, the notice required therein must be given. The words `public works of any kind,' as used in the statute, are broad enough to, and do, cover the facts of this case; for all fixed works constructed for public use, as railways, docks, canals, waterworks, and roads, are included in the term `public works.' (Cent. Dict. * * *)

"The term `public grounds,' in its general and usual meaning, and in the sense in which it is used in the title to this statute, includes any public works in the city. * * * The necessity for notice to a municipality of an injury suffered by reason of a defect in any of its public works or grounds is just as essential for its protection as it would be in case the injury was caused by a defect in its streets, and to limit its operation to injuries caused by the condition of its public highways would defeat the manifest purpose of the Act, by an illiberal construction, contrary to the spirit of the constitutional limitation."

This court, Mr. Justice Smith writing the opinion, in Kelly v. City of Butte, supra, gave the term "public works" the same general and usual meaning, in saying: "Section 3289, Revised Codes [sec. 5080, R.C.M. 1921] providing that notice of claim for injuries must be given to a city or town before it shall be liable for damages, refers, in terms, to any `defect' in any bridge, street, public works, etc."

The per curiam opinion in strictly construing the word "on" in the title of the Act renders nugatory the words "or public works of any kind in said city or town," in the body of the Act because, forsooth, the water was delivered the plaintiff "not in or on any public place, but in the place where he resided, — a private residence." Where else could it have been delivered under the circumstances pleaded? The implication is that if the plaintiff's residence had been "in or on any public place" the statute would apply. Here the primary causes of plaintiff's illness were, first, the break and defect in the sewer, and, second, the defect in the water-pipe permitting the contaminated sewage to enter and contaminate the water, which plaintiff drank, thereby causing his illness. As to this particular plaintiff, his illness and the character thereof, the particular part of the city in which he resided, and mayhap his very existence were not known by the city council, and did not know for more than two years from the date of the alleged illness when this suit was instituted. It was said in the argument that a typhoid epidemic existed in the city at about the time of plaintiff's illness, and of such nature as to give rise to the fear that the various sections and sources of the city's water system were all infected. Even now, in Helena, in Great Falls, or any other city of the state, some individual might claim he was made ill with some character of illness from the drinking of some character of deleterious water, delivered to him at his private residence by the city through its public works, — the water system. No epidemic therefrom existed. No notice thereof was ever given the city council, nor anything known of it for more than two years later when a suit to recover large damages was filed. Surely, the mere statement hereof shows the absolute necessity for the city council to be given notice. It is also the rule of law according to the authorities. The Act in question, section 5080, uses the words "public grounds." Rarely are such seen without observing thereon buildings, and correlatively there comes at once to the mind the thought of public works, public works of some or any kind, and which also must have been in the mind of the legislature.

In State v. McKinney, 29 Mont. 375, 1 Ann. Cas. 579, 74 P. 1095, Mr. Commissioner Clayberg writing the opinion, sets forth from the collected wisdom of the authorities five cardinal principles controlling the constitutional enactment of a statute. The fourth principle relative to the title is as follows: "The title is generally sufficient if the body of the Act treats only, directly or indirectly, of the subjects mentioned in the title, and of other subjects germane thereto, or of matters in furtherance of or necessary to accomplish the general objects of the bill, as mentioned in the title. Details need not be mentioned. The title need not contain a complete list of all matters covered by the Act." This able jurist, quoting with approval from State ex rel. Olsen v. Board of Control,85 Minn. 165, in a quotation too long to fully incorporate here, says: "The supreme court of Minnesota has so thoroughly discussed the principles which must control a court in passing upon the constitutionality of a statute where objections are made to its title that we feel constrained to quote at length from its decision: `Every reasonable presumption should be in favor of the title, which should be more liberally construed than the body of the law, giving to the general words in such title paramount weight. It is not essential that the best or even an accurate title be employed, if it be suggestive in any sense of the legislative purpose. The remedy to be secured, and mischief avoided, is the best test of a sufficient title, which is to prevent it from being made a cloak or artifice to distract attention from the substance of the Act itself. The title, if objected to, should be aided, if possible, by resort to the body of the Act, to show that it was not intended by such title to mislead the legislature or the people, nor to distract their attention from its distinctive measures. Throughout all the decisions it will be found that it is a regard for the law itself, rather than any puerile consideration for the title, which is made the essential object of judicial anxiety.'"

In Evers v. Hudson, 36 Mont. 135, 92 P. 462, Mr. Justice Holloway, a most able and learned jurist, in addition to the five principles enunciated by Mr. Commissioner Clayberg in State v.McKinney, sets forth four more, two of which, 7 and 8, may be here quoted: "7. If a title fairly indicates the general subject of the Act, is comprehensive enough in its scope reasonably to cover all the provisions thereof, and is not calculated to mislead either the legislature or the public, this is a sufficient compliance with the constitutional requirement. 8. Generality or comprehensiveness in the title is no objection, provided the title is not misleading or deceptive and fairly directs the mind to the subject of the law in a way calculated to attract the attention truly to the matter which is proposed to be legislated upon."

In State v. Anaconda C.M. Co., 23 Mont. 498, 501,59 P. 854, Mr. Justice Hunt, writing the opinion, said: "Upon the highest authority it is held that, under constitutional provisions substantially like that referred to in Montana, where the degree of particularity necessary to be expressed in the title of a bill is not indicated by the Constitution itself, the courts ought not `embarrass legislation by technical interpretations based upon mere form of phraseology. The objection should be grave, and the conflict between the statute and the Constitution palpable, before the judiciary should disregard a legislative enactment upon the sole ground that it embraced more than one object, or, if but one object, that it was not sufficiently expressed by its title.' (Montclair v.Ramsdell, 107 U.S. 147, 155, 2 Sup. Ct. 391, 27 L. Ed. 431;Powell v. Supervisors of Brunswick County, 88 Va. 707,14 S.E. 543.)"

In 25 R.C.L. 1052, a rule of construction is there stated: "One of the recognized rules of construction of statutes is that we are to look to the state of the law when the statute was enacted in order to see for what it was intended as a substitute. No single statute should be interpreted solely by its own words. Upon enactment it becomes a part of, and is to be read in connection with, the whole body of the law. Its interpretation is to be in the light of the general policy of previous legislation and of the long established principles of law and equity. Every statute which is properly the subject of judicial construction should receive such a construction as will not conflict with general principles and will make it harmonize with the preexisting body of law." This rule was quoted with approval by Mr. Justice Galen in State v. Bowker, 63 Mont. 1, 5,205 P. 961; again in State ex rel. Ewald v. Certain IntoxicatingLiquors, 71 Mont. 79, 83, 227 P. 472; and cited as authority by Judge Bennett in Fergus Motor Co. v. Sorenson, 73 Mont. 122,128, 235 P. 422.

"In construing a statute the court must, if possible, ascertain and carry into effect the intention of the legislature enacting it (Power v. Board of Co. Commrs., 7 Mont. 82,14 P. 658); and such intention is to be gathered from the terms of the statute, when considered in the light of the surrounding circumstances (Jay v. School District No. 1, 24 Mont. 219,61 P. 250)"; (State ex rel. Evans v. Stewart, 53 Mont. 18, 31,161 P. 309); "and the apparent purpose to be subserved. (Johnson v. Butte Superior Copper Co., 41 Mont. 158, 48 L.R.A. (n.s.) 938, 108 P. 1057.)" (State ex rel. Carter v.Kall, 53 Mont. 162, 168, 5 A.L.R. 1309, 162 P. 385;Sullivan v. City of Butte, 65 Mont. 495, 496, 211 P. 301;Bennett v. Meeker, 61 Mont. 307, 310, 202 P. 203; Lerch v. Missoula Brick Tile Co., 45 Mont. 314, 320, Ann. Cas. 1914A, 346, 123 P. 25.) "Every word, phrase, clause or sentence employed is to be considered and none shall be held meaningless if it is possible to give effect to it. (Stadler v. City ofHelena, 46 Mont. 128, 127 P. 454.)" (Mid-Northern Oil Co. v.Walker, 65 Mont. 414, 428, 211 P. 353; City of Billings v.Public Service Com., 67 Mont. 29, 38, 214 P. 608; State exrel. Board of Co. Commrs. v. District Court, 62 Mont. 275,279, 204 P. 600; sec. 10520, Rev. Codes 1921.)

At the time section 5080 was enacted there were then upon the statute books of this state sections 4811 and 4812, Political Code 1895. Section 4811 provided that "all accounts and demands against a city or town must be submitted to the council," etc. Section 4812 provided that "all accounts and demands against a city or town must be presented to the council, duly itemized and accompanied by an affidavit of the party or his agent, * * * within one year from the date the same accrued; and any claim or demand not so presented within the time aforesaid is forever barred." These sections were amended by additions thereto, but without changing the provisions above quoted, by Chapter 30, Laws of 1903, p. 42. These sections were carried forward into the Revised Codes of 1907 as sections 3282 and 3283, without showing the amendments, the amendments being given as sections 3287 and 3288, Revised Codes 1907. Sections 3282 and 3283 were repealed by Chapter 109, Laws of 1921, p. 109.

In Dawes v. City of Great Falls, 31 Mont. 9, 77 P. 309, the action was based upon the alleged negligence of the city in making a dangerous excavation in one of the streets, and negligently allowing such excavation to remain in a dangerous condition, with full knowledge of such condition, into which the plaintiff fell and was injured. A trial was had by the court with a jury, which resulted in a verdict and judgment in favor of the plaintiff for the sum of $1,000 damages. Motion for nonsuit was made by the city for the reason that the complaint did not state facts sufficient to constitute a cause of action in "that there is no allegation that the demand of plaintiff was ever presented to the city council, as required by the provisions of sections 4811 and 4812 of the Political Code." The trial court, the loved Judge J.B. Leslie presiding, denied the motion. His ruling was affirmed, the supreme court holding that such provisions could not apply to a claim for damages arising from a tort. Recall that section 4812 required the demand to be presented "within one year from the date the same accrued." Whensoever the injury occurred, it was over a year prior to the institution of suit, hence a stale injury. It is reasonable to suppose that one or more of the legislators from the Great Falls district were conversant with this case, hence the enactment of Chapter 93, Acts of 1903, now section 5080, Revised Codes 1921. "We are to look to the state of the law when the statute was enacted in order to see for what it was intended as a substitute." (25 R.C.L. 1052, quoted supra; see, also, United States Cement Co. v. Cooper, 172 Ind. 599,88 N.E. 69, 72; Commonwealth v. Chicago, St. L. N.O.R. Co.,124 Ky. 497, 99 S.W. 596, 599; State v. Western Union Tel.Co., 196 Ala. 570, 72 So. 99, 100.)

The per curiam opinion cites Henry v. City of Lincoln,93 Neb. 331, 50 L.R.A. (n.s.) 174, 140 N.W. 664; Cook v. Cityof Beatrice, 114 Neb. 305, 207 N.W. 518, 519; Borski v. Cityof Wakefield, 239 Mich. 656, 215 N.W. 19; Brown v. Salt Lake City, 33 Utah, 222, 126 Am. St. Rep. 828, 14 Ann. Cas. 1004, 14 L.R.A. (n.s.) 619, 95 P. 570, as authorities holding the giving of notice not necessary in a case arising out of the conduct of a purely private enterprise voluntarily entered into by a municipality for hire. The case of D'Amico v. City of Boston,176 Mass. 599, 58 N.E. 158, is quite generally cited with Henry v. City of Lincoln. These two cases, said Mr. Justice Prentis, in O'Neil v. City of Richmond, 141 Va. 168, 126 S.E. 56, appear to stand alone, and that in Henry v. City of Lincoln there was a strong dissenting opinion. The case of Cook v.City of Beatrice simply follows Henry v. City of Lincoln, the early case in that jurisdiction. Borski v. City ofWakefield follows Henry v. City of Lincoln, cites D'Amico v. City of Boston, and says the cases in which the question has been considered are not numerous. For the contrary view the opinion cites Dickie v. City of Centralia, 91 Wash. 467,157 P. 1084, and Western Salt Co. v. City of San Diego,181 Cal. 696, 186 P. 345. In Brown v. Salt Lake City, the statute was confined exclusively to streets, and the Utah supreme court, in an opinion by the late and one of Utah's most able jurists, Mr. Justice Frick, page 373 of 95 P., said: "It will be observed the claims that require presentation are of two kinds: (1) Claims arising out of defective or obstructed streets, alleys, cross-walks, sidewalks, culverts or bridges, or for negligence of the city authorities with respect thereto; (2) claims consisting of various items of account or otherwise that may arise out of transactions with the city, and not arising in tort. This seems manifest from the language used with respect to the character of the claims that must be presented to the city council under the second class mentioned in the statute. It seems reasonably clear to us that, in view of the case of Dawes v.City of Great Falls, 31 Mont. 9, 77 P. 309, the claim in this case does not belong to the class last above noticed." Nor did it come within the first class because "a claim included within the statute is one pertaining to a personal injury or damage to property, and must be presented within ninety days after the happening of such injury or damage," further said the court.

Indeed, it may then be said that the practical necessity for the city, governed and managed in the interests of its inhabitants and taxpayers, the ultimate payors, to have notice of the claim, before suit, of any injury or loss alleged to have been sustained in the discharge of its corporate or business functions and duties, is the primary reason that induced the legislature to enact the statute in question. In the absence of statute a city, free from any active wrongdoing, is not liable in a private action for damages occurring while in the exercise or discharge of its purely municipal and governmental functions and duties. (6 McQuillin on Municipal Corporations, sec. 2793, and Id. 1932 Supp.; City of Portsmouth v. Weiss, (1926) 145 Va. 94, 133 S.E. 781, 785 et seq.; Clinton v. City of Santa Cruz, (1930) 104 Cal. App. 490, 285 P. 1062; Hughes v. Village ofNashwauk, (1929) 177 Minn. 547, 225 N.W. 898.)

The case of Frasch v. City of New Ulm, 130 Minn. 41, L.R.A. 1915E, 749, 153 N.W. 121, is clearly identical with the case here, and the language of the opinion is so clearly apropos to the notice requirement of section 5080, and contrary to the ruling in the per curiam opinion, that the lengthy quotation therefrom is warranted. It reads: "But it is said the provision with respect to written notice of claim should be confined to actions involving or pertaining to the public or governmental functions of a city, and not to causes arising out of the conduct of some private endeavor which it may choose to enter upon, such as the maintenance of waterworks or lighting systems. We have held municipal corporations to the same accountability for negligence in the conduct of enterprises other than strictly governmental that we exact from private corporations engaged in similar business. (Wiltse v. City of Red Wing, 99 Minn. 255,109 N.W. 114; Keever v. Mankato, 113 Minn. 55, Ann. Cas. 1912A, 216, 33 L.R.A. (n.s.) 339, 343, 129 N.W. 158, 775, 1 N.C.C.A. 187; Brantman v. City of Canby, 119 Minn. 396, 43 L.R.A. (n.s.) 962, 138 N.W. 671.) And it may be conceded that, in respect to every injury resulting from a negligent operation of its system of waterworks, defendant is answerable in damages to the same extent as would be a private owner thereof. But, even so, the legislature is not, because of similarity of liability, precluded from making distinctions between municipalities and private corporations in respect to conditions precedent to suit. When those conditions are complied with, the liability and redress are the same. This is a period when municipalities are not confined strictly to the functions of governmental agencies, but are permitted to embark in a variety of enterprises deemed beneficial and convenient to its inhabitants, upon the ground that cheaper and more efficient service can be rendered by the municipality than by persons or private corporations. Under this head come the so-called public utilities. This very need of entrusting a multitude of private or quasi-private matters to municipalities, in addition to their purely public duties, is sufficient reason for the requirement of timely notice of a claim, before the one who has suffered from the negligence of the municipality may resort to the court for its enforcement. Every reason which calls for the service of a written notice of claim upon a municipality before suit in any case applies in this. It is as important that the head or administrative body of a city have notice of a claim for negligent injury or damage caused by something connected with its water system as if the injury arose out of some negligent defect in its streets. The funds of a city must be used to pay the one claim, as well as the other. The purpose of notice is to enable a city to ascertain the facts and keep in touch with the evidence pertaining to the claim, so as to facilitate a just settlement, or, if that cannot be done, defend with effect. The legislature, having deemed it expedient to public welfare to permit municipalities to own and manage public utilities, may to a reasonable extent protect them against stale and long-hidden demands and perhaps unnecessary lawsuits, by requiring timely notice as a condition precedent to suit. We do not think this arbitrary class legislation. There can be no claim that thirty days' time is unreasonably short in cases like the present. Tonn v. Helena, 42 Mont. 127, 36 L.R.A. (n.s.) 1136, 111 P. 715, 3 N.C.C.A. 437, Steltz v. Wausau, 88 Wis. 618,60 N.W. 1054, McCue v. Waupun, 96 Wis. 625, 71 N.W. 1054, andO'Donnell v. New London, 113 Wis. 292, 89 N.W. 511, go to sustain the proposition that, in respect to demands arising outside of the purely governmental functions of cities, or outside of statutory obligations imposed upon them, the legislature, in requiring service of notice of demand as a condition precedent to suit against them, is not improperly discriminating against individuals or private corporations owning and conducting like utilities." To the same effect are Berry v.City of Helena, (1919) 56 Mont. 122, 182 P. 117; Dickie v.City of Centralia, (1916) 91 Wash. 467, 157 P. 1084; O'Neil v. City of Richmond, (1925) 141 Va. 168, 126 S.E. 56; Sheer v. City of Everett, (1925) 134 Wash. 385, 235 P. 789; Lee v. City of Ft. Morgan, (1925) 77 Colo. 135, 235 P. 348, 350;City of Portsmouth v. Weiss, (1926) 145 Va. 94, 133 S.E. 781;Western Salt Co. v. City of San Diego, (1919) 181 Cal. 696,186 P. 345; Condon v. City of Chicago, (1911) 249 Ill. 596,94 N.E. 976; Continental Ins. Co. v. City of Los Angeles, (1928) 92 Cal. App. 585, 268 P. 920; Beeson v. City of LosAngeles, (1931) 115 Cal. App. 122, 300 P. 993; Crescent Wharf Warehouse Co. v. City of Los Angeles, (1929) 207 Cal. 430,278 P. 1028; Dunn v. Boise City, (1927) 45 Idaho, 362,262 P. 507; Mayor of Savannah v. Herndon, (1932)44 Ga. App. 574, 162 S.E. 398; Szroka v. Northwestern Bell Tel. Co., (1927) 171 Minn. 57, 59 A.L.R. 404, 213 N.W. 557; Kuhlmann v.City of Fergus Falls, (1929) 178 Minn. 489, 227 N.W. 653.

Hughes v. City of Nashwauk, supra, is commented on in theper curiam opinion apparently with some degree of satisfaction to the effect that the supreme court of Minnesota has departed from its ruling in Frasch v. City of New Ulm, and that that state now is authority for the ruling in the instant opinion. The very contrary is the case. True, the Minnesota court reviews its former decisions, several of which are applicable here, and holds that notice before suit in their instant case is not required. Why? Hughes v. Village ofNashwauk is one of the few cases in which a city or town was guilty of active wrongdoing. The case, said the court, "is not predicated on negligence, but on the creation and maintenance of a nuisance upon the premises occupied by the plaintiff." The court then holds: "The complaint in the present case alleges such an invasion of the plaintiff's premises and the creation of a nuisance thereon. In that situation it appears to be settled by our decisions above noted that an equitable action to enjoin the nuisance and recover damages therefor would not come within the statute requiring notice. It is clear also that under the decision in the Barber Case an action at law for damages to property would not come within the statute. If damages may be recovered in an action at law on account of a nuisance created and maintained by defendant on plaintiff's premises, there appears no valid reason for distinguishing between damages to property and damages to the person so far as the notice statute is concerned. That statute makes the cause of the damage, and not the kind of damage resulting, the test of whether notice is required. Such notice is required where the cause of the damage is a `defect in any bridge, street, sidewalk, * * * public works or any grounds or places whatsoever, or by reason of the negligence of any of its officers, agents,' etc. Here the cause of damage is alleged to be a nuisance created and maintained by the defendant on private property."

In Tonn v. City of Helena, 42 Mont. 127, 36 L.R.A. (n.s.) 1136, 111 P. 715, cited in Frasch v. City of New Ulm, Mr. Justice Holloway, writing the opinion, said: "It is argued that section 3289 [sec. 5080, Rev. Codes 1921] is unconstitutional in that an unjust discrimination is made in favor of municipalities and against all others who may be defendants in personal injury actions; or, in other words, that, in case the notice provided for above is not given, the city is thus granted a special immunity. A statute is not open to objection merely because it is class legislation. If the classification is reasonable, and all members of a given class receive equal protection, the statute will be upheld. This is the universal rule. (Citations omitted.) There would seem to be abundant reason for taking public municipal bodies out of the general class of litigants. Such bodies are governed only by public officers; the ramifications of their business interests are so extensive that it is a matter of common knowledge that they cannot ascertain the facts with reference to their liability with the same degree of exactness and dispatch as a private person or the officers or agents of a private corporation. We think it cannot be said that the classification made by this statute is unreasonable; and, since all cities of the state are treated alike, the statute is not open to the objection urged against it. (Quong Wing v.Kirkendall, 39 Mont. 64, 101 P. 250; Lewis v. NorthernP. Ry. Co., 36 Mont. 207, 92 P. 469; Parker-Washington Co. v. Kansas City, 73 Kan. 722, 85 P. 781.)"

The fact that a defect exists in any street, public grounds or public works of a city may be known by its mayor or other officer, or even that they had actual knowledge of a person's injury or loss, does not dispense with notice. A city under the statute is entitled to have notice, before suit, of the particular person claiming to have sustained injury or loss, "to enable the city officials to investigate and to determine from such investigation whether the city shall settle the claim or defend against it, and, if the latter alternative is chosen, to secure evidence." (Berry v. City of Helena, supra.)

In Thomann v. City of Rochester, (1931) 256 N.Y. 165,178 N.E. 129, Chief Justice Cardoza, now a Justice of the Supreme Court of the United States, writing the opinion, reversing Id.230 A.D. 612, 245 N.Y. Supp. 680, and affirming the trial court as to the statutory requirement for notice, said: "The requirement is strict, but not so strict as to be arbitrary. A judgment against a municipal corporation must be paid out of the public purse. Raids by the unscrupulous will multiply apace if claims may be postponed till the injury is stale. The law does not condemn as arbitrary a classification of rights and remedies that is thus rooted in the public needs."

The giving of the statutory notice is mandatory, hence it must be substantially complied with. (Nagle v. City of Billings, (1927) 80 Mont. 278, 260 P. 717; Thomann v. City ofRochester, supra; Reid v. Kansas City, (1917)195 Mo. App. 457, 192 S.W. 1047; Cawthon v. City of Houston, (1919) (Tex.Civ.App.), 212 S.W. 796; Id., (1921) (Tex.Com.App.)231 S.W. 701; City of Ft. Worth v. Jones, (1923) (Tex.Civ.App.)249 S.W. 296; Jones v. City of Ft. Worth, (1924) (Tex.Com.App.)267 S.W. 681; Id., (1925) 270 S.W. 1002; Bowles v. City ofRichmond, (1925) 147 Va. 730, 129 S.E. 489; Id., 133 S.E. 593;Dunn v. Boise City, (1927) 45 Idaho, 362, 262 P. 507;Hooge v. City of Milnor, (1927) 56 N.D. 285, 217 N.W. 163;City of Birmingham v. Simmons, (1930) 222 Ala. 111, 74 A.L.R. 766, 130 So. 896; Lane v. Gray, (1930) 50 R.I. 486,68 A.L.R. 1530, 149 A. 593; Sheehy v. City of New York, (1899)160 N.Y. 139, 54 N.E. 749.)

The overwhelming weight of authority is clearly contrary to the conclusions reached in the per curiam opinion. Having in mind what is said herein relative to the management of municipal affairs, governmental and proprietary, reason, supported by almost universal authority, rebels against the adoption of any such ruling in Montana.

The failure of the plaintiff to give the mandatory notice within time, or at all, as required by the statute, is decisive of this case. The trial court was right in overruling the demurrer to defendant's answer and entering judgment on the pleadings dismissing the action.

I regret the inordinate length of this opinion, yet to make my position clear it could not be otherwise.