Beaudette v. City of Fond du Lac

Ryan, C. J. Kittredge v. Milwaukee, 26 Wis., 46, holds see. 120, ch. 19, R. S., applicable to the city of Milwaukee, upon the ground that sec. 126 of the chapter extends its provisions to all parts of the state, where there are not special and inconsistent provisions, and that there are no special and inconsistent provisions in the charter of that city. And it is now claimed, on the authority of that case, that ch. 86 of 1875, being quasi an amendment of sec. 120, governs the liability of cities under that section. We should think so too, if ch. 86 were not in terms inapplicable to cities. It requires, as a condition precedent to action against a town, under sec. 120, notice to one or more of the town board of supervisors; but designates no officers of cities or villages to whom such notice may be given. There are usually no officers in cities exactly corresponding to supervisors of towns. And it is not to be presumed that the legislature intended the notice to be given in cities, without designating the officers to whom it should be given. It might be sometimes a serious question, what officer of a city should receive such notice; and we cannot think that the legislature intended to expose per 47 sons injured in cities, to the hazard of determining the proper officer, at their peril. It was argued at the bar that aldermen of cities correspond most nearly with the supervisors of towns, and that they are therefore proper officers to receive the notice. This position rests in mere argument, outside of the statute, and more or less doubtful as applicable to different city charters. The trouble is that the statute does not say so. And we must hold that if the legislature had so intended, it would have so said; as in ch. 32, ch. 35, R. S., and other provisions. We cannot assume that ch. 86 of 1875 was intended to include cities, because there is nothing in it indicating such intention. On the contrary, the language of the legislature is strictly confined to towns and town officers, without any terms adequate to extend it to cities or villages. And the argument that the statute includes cities takes nothing by the permissive rule of construction of ch. 5, R. S. By the Cou/rt. — The order of the eourt below is affirmed.