McLean v. City of Spirit Lake ( 1967 )

McQUADE, Justice.

I concur in the result.

Under I.C. § 50-2010, an action for damages against a city of the second class is barred unless a claim has been filed with the city clerk within six months after the claim’s accrual. As the majority states, this statutory section has never been considered by this Court.

In the present action, concerning whether a claim meeting whatever standards are prescribed by I.C. § 50-2010 was filed by respondent with appellant’s clerk, the majority holds only that appellant is precluded from raising that issue on this appeal. The majority opinion, nevertheless, addresses I.C. § 50-2010 on first impression, and discusses at length its requirements.

In determining the requirements of I.C. § 50-2010, the majority examines I.C. § 50-162, the terms of which differ from I.C. § 50-2010 only in that I.C. § 50-162 concerns cities of the first class and has a limit for claim-filing of thirty days.¹ However, although I.C. § 50-162 has been considered several times, on no occasion has this Court directly upheld its validity. Each case in which I.C. § 50-162 has been discussed necessarily avoided that question by determining that whatever claim had been there presented was sufficient. Thus, failure to comply with I.C. § 50-162 has never caused dismissal of an action. See Dunn v. City of Boise, 45 Idaho 362, 262 P. 507 (1927); Yearsley v. City of Pocatello, 69 Idaho 500, 210 P.2d 795 (1949); 71 Idaho 347, 231 P.2d 743 (1951); Cox v. City of Pocatello, 77 Idaho 225, 291 P.2d 282 (1955).

I recognize that many jurisdictions have statutes similar to I.C. §§ 50-2010 and 50-162. See generally 17 McQuillin, Municipal Corporations, §§ 49.12 and 49.13 (3d ed. 1950). Nevertheless, such statutes in effect prescribe limitations and of course must meet with due process requirements.

The majority opinion needlessly discusses the standards of I.C. § 50-2010, for that issue is not now before this Court. Although the majority in the present action cannot make a binding decision regarding the validity of I.C. § 50-2010, the majority opinion might convey the mistaken impression thaat the majority has adjudged I.C. § 50-2010 to be valid. I therefore find it necessary to concur specially and point out the majority’s limited holding: that appellant is precluded from arguing respondent did not meet whatever might be the valid requirements of I.C. § 50-2010.

1 . I.C. §§ 50-2010 and 50-162 have been superseded by Idaho Sess.Laws 1967, H.B.No. 3, § 12 (to be contained in bound volume at Ch. 429), which provides a.60-<3ay limit for presentation of a claim against a city after the claim has accrued.