Dahl v. Salt Lake City , 45 Utah 544 ( 1915 )

STRAUP, C. J.

(dissenting).

I do not concur in this. Laws 1903, chap, 19, section 1, amending Rev. St. 1898, section 312, provided:

“All claims against a city or town, for damages or injury alleged to have arisen from the defective, unsafe, dangerous or obstructed' condition of any street, alley, crosswalk, sidewalk, culvert or bridge of such city or town, or from the negligence of the city or town authorities in respect to any such street, alley, crosswalk, sidewalk, culvert or bridge, shall, within ninety days after the happening of such injury or damage, be presented to the city council of such city or board of trustees of such town, in writing, signed by the claimant or by some authorized person, and properly verified, describing the time, place, cause and extent of the damage or injury; and no action shall be maintained against any city or town as aforesaid, for injuries to person or property, unless, it appears that the claim for which, the action was brought was presented to the council as aforesaid, and that the council or board did not,, within ninety days thereafter, audit and allow the same. Every other claim against the city or town must be presented to the city council or board of trustees, as the case may be, within one year after the last item of the account or claim accrued. Such claims must be verified, as.to their correctness, by 'the claimant or his authorized agent. If the city council or board of trustees shall refuse to hear or consider a claim because not properly made out, notice thereof shall be given the claimant, and sufficient time allowed him to have the claim properly itemized or verified.”

Section 313:

“It shall be a sufficient bar and answer to any action or proceeding against a city or town, in any court, for the collection of any claim mentioned in section 312, that such claim had not been presented to the city council of such city, or to the board of trustees of such town, in the manner and within the time in section 312 specified.” •

These were before us in the ease of Brown v. Salt Lake City, 33 Utah 222; 93 Pac. 570; 126 Am. St. Rep. 828; 14 Ann. Cas. 1004. Here is what we then said about them:

“It will^be observed the claims that require presentation are of 'two kinds: (1) Claims arising out of defective or obstructed streets, alleys, crosswalks, 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 Pac. 309, the claim in this case does not belong to the class last above noticed.”

We thus expressly decided that the second class did not include claims arising out of tort; and, as the claim there was such a claim, that it did not fall within that class. We then proceeded to show that it did not fall within the first class, claims arising from a defective condition of any street, sidewalk, bridge, etc. The quoted language from the Brown case in the prevailing opinion is language which was used to show that the claim did not fall within the first class; that is, though the claim was one arising out of tort, yet was not of the class of torts enumerated in the first class. Thus a reading of the opinion clearly shows our holding to be that the claim, being one arising out of tort, did not require presentation under the second class because that class related to claims “not arising in tort,” and, though it arose out of tort, nevertheless, did not require presentation under the first class, because it was not of the class of torts enumerated in that class, and hence required no presentation. To now say that we in the Brown case held that the claim did not require presentation because it was one for damages for negligent or wrongful death is, in my judgment, not reflecting the true meaning of that decision. True that, with other reasons, -was given to show that the claim was not of the class of torts enumerated in the first class. But we did not hold that the claim did not require presentation under the second class because it -was one for damages for wrongful or negligent death, but expressly on the ground that it arose out of tort, and that the second class did not include claims “arising iu tort.”

The Legislature! in 1905 amended the, Laws of 1903. As amended they read:

“Every claim against an incorporated city or town for damages or injury alleged to have been caused by the defee-tive, unsafe, dangerous or obstructed condition of any street, alley, crosswalk, sidewalk, culvert, or bridge of such city or town, or from .the negligence of the city or town authorities in respect to any such street, alley, crosswalk, sidewalk, culvert, or bridge shall, within thirty days after the happening of such injury or damage, be presented to the city council of such city, or board of trustees of such town, in writing, signed by the claimant or by some person by claimant authorized to sign the .same, and properly verified, stating the particular time at which the injury happened, and designating and describing the particular place in which it occurred, and also particularly describing the cause and circumstances of the said injury or damages, and stating, if known to claimant, the name of the person, firm, or corporation, who created, brought about, or maintained the defect, obstruction, or condition causing such accident or injury, and also stating the nature and probable extent of such injury, and the amount of damages claimed on account of the same; such notice shall be sufficient in the particulars above specified to enable the officers of such city or town to find the place and cause of such injury from the description thereof given in the notice itself without extraneous inquiry, and no action shall be maintained against any city or town for damages or injury to person or property, unless it appears that the claim for which the action was brought was presented as aforesaid to the city council or the board of trustees of the town, and that such council or board did not within ninety days thereafter audit and allow the same. Every claim, other than claims above mentioned, against any city or town, must be presented, properly itemized or described and verified as to correctness by claimant or his agent, to the city council or board of trustees within one year after the last item of such account or claim accrued, and if such account or claim is not properly or sufficiently itemized, or described or verified, the city council or board of trustees may require the same to be made more specific as to the itemization or description, or to be corrected as to the verification thereof.” ,

Section 313:

“It shall be a sufficient bar and answer to any action or proceeding against a city or town, in any court, for the collection of any claim mentioned in section 312, that such claim had not been presented to the city council of such city, or to the board of trustees of such town, in the manner and within the time in section 312 specified; provided, that in case an account or claim, other than a claim made for damages on account of the unsafe, defective, dangerous or obstructed condition of any street, alley, crosswalk, way, sidewalk, culvert or bridge, is required by the council or board to be made more specific as to itemization or description, or to be properly verified, sufficient time shall be allowed the claimant to comply with such requirement.”

It is thus seen that the amendments chiefly relate to what we, in the Brown case, denominated ! ‘ claims of the first class, ’ ’ those relating to a defective condition of streets, sidewalks, bridges, etc. A comparison of the two> shows a marked change in such particular. But we are not concerned with that. It is not contended that the claim here required presentation under that class. The contention made is that it required presentation under what we, in the Brown case, denominated 1 ‘ the second class. ’ ’ To show what change was made in such particular I parallel the two acts:

1903.

“Every other claim against the city or town must be presented to the city council or board of trustees, as the case may be, within one year after the last item of the account or claim accrued. Such claims must be verified, as to their correctness, by the claimant or his authorized agent.”

1905..

“Every claim, other than claims above mentioned against any city or town must be presented properly itemized or described and verified as to the correctness by claimant or his agent, to the city council or board of trustees within one year after the last item of such account or claim accrued. ’ ’

Now, if the language of t Brown case held, did not inc e' 1903 act, and as we in the ide claims arising out of tort, I do not well see bow tbe language of the act of 1905 includes such claims. There is but a slight difference in phraseology as to this. The former is, “Every other claim against the city or town must be presented,” etc.; the latter, “Every claim, other than claims above mentioned against any city or town must be presented,” etc. The former required the claims to “be verified as to their correctness”; the latter, “properly itemized or described and verified as to the correctness.” Both use the words “account or claim,” and “after the last item of the account or claim accrued,” language applicable to claims ex contractu but not ex delicto, and which usually in the cases is pointed to, to show that such statutes as these refer to the former, but not to the latter, claims. It is not apt to speak of a “last” or first “item” of a tort, nor may it well be “itemized or described.” "With but the slight difference of phraseology — “every other claim” and “every claim other than claims above mentioned,” language which, in substance, expresses the same thought — it seems to' me a most liberal, if not a strained, construction to hold that the act of 1903 was so amended as to include claims of every description growing out of any and all delicts and torts. As to this I think the case of the City of Warren v. Davis, 43 Ohio St. 447; 3 N. E. 301, apposite. There the court, quoting from prior decisions of that jurisdiction, said:

“Wliere an act of tlie Legislature, or several acts in pari ma-teria, liave undergone revision, the same construction will prevail as before revision, unless the language of the new act plainly requires a change of construction, to conform to the manifest intent of the Legislature. Neither an alteration in phraseology nor the omission or addition of words in the latter statute necessarily requires a change of construction. The intent to give to the new act a different effect from the old should be clearly manifested.”

If here the Legislature intended to so enlarge the statute, which we held did not require presentation of claims growing out of tort, as now to include claims growing out of all delicts, wrongs, and torts of every description, then sueh intent ought to have been “clearly manifested,” and such language employed in the new act as plainly to “require a change of eon-struction. ” I do not think from the slight difference of phraseology such an intent manifest, or that the new language requires such a change of construction. The claim confessedly is one growing out of tort, and therefore I think it did not require presentation.