O'Donnell v. City of New London

Oassoday, O. J. The charter of the city provides, in effect, that the common • council shall have power to audit, adjust, and allow all claims and demands of every nature against the city, except such claims or demands as are pay [295] able out of the school fund; and no action shall be maintained by any person, against the city upon any claim or demand mentioned in the preceding section, other than a city bond or order, unless such person shall first have presented such claim or demand to th& common council of the city. The determination of the common council disallowing, in whole or in part, any such claim or demand, shall be final and conclusive, and a perpetual bar to any action in any court founded on such claim or demand, unless an appeal shall be taken from the decision and determination of such common council as thereinafter provided, or unless such common council shall consent and agree to the institution and maintenance of an action by such claimant against the city, or refuse or neglect to act upon any such claim or demand duly presented to them. Secs. 1, 2, subch. IX, ch. 162, laws of 1817. The language of the charter, thus stated, is certainly broad enough to cover, and does cover, the claim for damages alleged in this action. Koch v. Ashland, 83 Wis. 361; Van Frachen v. Ft. Howard, 88 Wis. 570; Steltz v. Wausau, 88 Wis. 618; Flieth v. Wausau, 93 Wis. 446; McCue v. Waupun, 96 Wis. 625; Morgan v. Rhinelander, 105 Wis. 138. Under such charter provisions, this court has repeatedly held, in respect to claims covered by them,, that the circuit court could not get jurisdiction, except by appeal from the action of the common council. In addition to the cases cited, see Telford v. Ashland, 100 Wis. 238; where Sheel v. Appleton, 49 Wis. 125, is expressly overruled. Seegar v. Ashland, 101 Wis. 515; Morgan v. Rhinelander, supra; Oshkosh W. W. Co. v. Oshkosh, 106 Wis. 83. Counsel contends that as the right of action alleged was not created by statute, but existed at common law, the charter provisions in question must not be regarded as prescribing a condition precedent, but merely as in the nature of a statute of limitation, and hence can only be reached by demurrer, as prescribed by subd. 7, sec. 2649, Stats. 1898. In support of [296] such, contention, counsel cat© Meisenheimer v. Kellogg, 106 Wis. 30, 33, and Davis v. Appleton, 109 Wis. 580. The first of these cases arose under subd. 5, sec. 4222, Stats. 1898, which is prescribed as a statute of limitation, and is contained in the chapter upon the limitation of actions. In that case the distinction pointed out in Relyea, v. Tomahawk P. & P. Co. 102 Wis. 301, was observed; and two cases arising under séc. 18165., Stats. 1898, in which such distinction was overlooked, were expressly overruled. Weed & G. Mfg. Co. v. Whitcomb, 101 Wis. 226; Ryan v. C. & N. W. R. Co. 101 Wis. 506. Such distinction has been observed in other cases. Gatzow v. Buening, 106 Wis. 1; Malloy v. C. & N. W. R. Co. 109 Wis. 29; O’Connor v. Fond du Lac, 109 Wis. 253. The distinction between such mere statutes of limitation upon an existing right of action, and a condition pre1-cedent' to a right of action created by statute, is manifest. So there is a broad distinction between such statutes of limitation upon an existing right of action given by the common law, and a statute prescribing a mode of procedure as a condition precedent to maintaining such right of action in a court of justice, as in the charter provisions in the case at bar. The claim of the plaintiff for $1,500 damages in this action came directly within the provisions of the charter mentioned. As indicated, the charter expressly prohibited the maintenance-of any action upon the claim or demand unless first presented to the common council, and then only by appeal, as therein prescribed. Such presentation being a condition precedent to the jurisdiction of the court, and as the record fails to show any such presentation, the demurrer was properly sustained. The ease of Davis v. Appleton, 109 Wis. 580, relied upon by counsel, was an action to restrain the city from erecting a water tank on land claimed by the plaintiff; and it was properly held that such an action, for equitable relief only, did not come within the charter provisions of that city, which were similar to the charter pro [297] visions here in question. Wliat was there said in respect to such charter provisions being in the nature of statutes of ■limitation must be regarded as overruled. By the -Court. — The order of tbe circuit court is affirmed.