Mason v. City of Ashland
Mason v. City of Ashland
Opinion of the Court
The ground, of the dismissal of the appeal being want of jurisdiction of the court, the order entered on such dismissal effectually terminated the proceeding. Motion costs might have been allowed and included in the order, but no judgment for costs was pi’oper. Felt v. Felt, 19 Wis. 195; Ketchum v. Freeman, 24 Wis. 296; Kingsley v. G. N. R. Co. 91 Wis. 380. It follows that the order appealed from is one affecting a substantial right, terminating’ the action and preventing a judgment from which an appeal might be taken, hence appealable under subd. 1, sec. 1, ch. 212, Laws of 1895.
Appellant contends that the sixty-day period of neglect to act upon his claim, which, under the charter of the city of Ashland, had, for the purposes of an appeal, the effect of a final adverse determination by the common council, commenced to run when the claim was presented to the common
Sec. 4, subch. VII. No action on any claim or demand shall be maintained against the city by any person, until such person shall have presented his claim, or demcmd to the common council for allowance, and the same shall be disallowed in whole or in part, provided that failure to pass on the claim within sixty days after the presentation thereof shall be deemed a disallowance of such claim.
Sec. 5, subch. VII. The adverse determination of the council shall be conclusive, unless appealed from as provided in the next section.
Sec. 6, subch. VII. The claimant may appeal from the final adverse action of the common council on his claim, within twenty days after such action.
Sec. 13, subch. VHI. No suit of any kind, on any claim of any character, shall be brought against the city, but the claimant shall proceed by filing his claim with the city cleric,for the action of the commoti council thereon, and appeal, in case of final adverse action, in the manner before indicated, provided that failure to finally act upon the claim, by the common council, for sixty days after the filing thereof, may be taken as a disallowance of the same.
Sec. 6, subch. V. No claim shall be considered by the common council, or reported to a committee, till it shall have been examined and reported on by the comptroller.
The judicial construction given by this court to the words, “ claim or demand ” as used in sec. 4, subch. VII, is that they include only the claims arising on contract. Bradley v. Eau Claire, 56 Wis. 168; Kelley v. Madison, 43 Wis. 638; Jung
But it is said there -is a conflict in the two provisions, in that the first provides that the sixty-day period of neglect to act on a claim commences when the claim is presented to the common council for action, and the second that it commences when the claim is filed with the city clerk for such action; that the former relates to the class of claims to which the one in question belongs, and should prevail over the latter general provision, under a well-known rule of statutory construction. That rule does not apply where the later general statute or provision is so worded as to necessarily include the subject of the previous act or provision. It is a rule of construction adopted to the end that all pro-, visions of an act may stand together, if such end can be attained without doing violence to the language used. The presumption is that when there is a particular clause of
But it is considered that there is no conflict between the two sections. In judicial construction, one of the most familiar rules is that conflicts by implication or otherwise between different provisions of a statute, or between two statutes, are not favored and will not be held to exist if •they may be otherwise reasonably construed. Attorney General ex rel. Taylor v. Brown, 1 Wis. 513; Attorney General v. Railroad Cos. 35 Wis. 425. Such rule has often been stated by this court to the effect that when two acts or provisions are susceptible of a construction which will give operation to both and all of the words in each; without doing violence to either, it is incumbent on the court to search for some reasonable ground for such construction, and not reach the conclusion that a fatal conflict exists, unless the meaning of the words and the manner of their .use be such as to render it impossible to reconcile them on any reasonable theory, whereby all may be given force and effect.
Applying the foregoing to this case, the conclusion is • ■easily reached that the words, “ presented to the common
The fact that the charter requires the comptroller to examine and report on all claims before action by the common council, does not warrant the conclusion that the legislative intent was that the council should have sixty days, within which to act, after the report by the comptroller.. The wording of the Section in regard to the duties of the comptroller indicates that the legislative idea was that a claim would be, to all intents and purposes, before the council for action when filed with the clerk. It does not provide that a claim shall not be presented to the council for action till passed upon by the comptroller, but that it shall not be acted upon bjr them till first examined and reported on by him. He is required to examine and report on all claims presented,— report, obviously, to the council,— and that suggests, naturally, that the claim goes to his hands, in legal effect, from the council through its clerk. The word “presented,” thus used, has the same significance as in the term, “ presented to the common council,” found in sec. 4, subch. YII. The requirement plainly is that the comptroller shall examine and report on all claims presented to the-common council for their action, or filed with the city clerk for such action, and that the council shall not allow a claim till so examined and reported on.
The foregoing appears to be not only a reasonable construction, but very plainly in accord with what was intended by the lawmakers. It also accords with the decision of the-
By the Oourt.— The order of the circuit court is affirmed.
Reference
- Full Case Name
- Mason v. The City of Ashland
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- Syllabus
- (1) Appealable order. (2) Municipal corporations: Ashland city charter: Presentation of claims: Limitation of, time for action by council: Appeal to circuit court. 1. An order dismissing, on the ground of a want of jurisdiction, an appeal from the disallowance by the common council of a claim against a city, effectually terminated the proceeding and prevented a judgment from which an appeal might be taken, and hence is appealable under subd. 1, sec. 1, ch. 312, Laws of 1895. 2. Where a city charter provides that no suit on any claim or demand shall be brought against the city until the claimant shall have presented the same to the common council for allowance; that in case of a disallowance thereof the claimant may proceed by appeal to'the circuit court within twenty days thereafter; that failure to pass on the claim within sixty days after presentation shall be deemed a disallowance; that the disallowance of the claim shall be conclusive and a bar to any action in court founded thereon unless appealed from within the time provided by the charter; that no suit of any kind on any claim of any character shall be brought against the city, hut that the claimant shall proceed to enforce his claim hy filing the same with the city clerk for the action of the common council thereon, and appeal therefrom in case of final adverse action as provided by the charter; that failure of the common council to pass upon the claim within sixty days from the time of such filing may he taken by the claimant as a disallowance of his claim; and that the council shall not consider any claim till it shall first have been examined and reported on by the comptroller, held: (1) That the words “presented to the common council for allowance ” and “filed with the city clerk for the action of the common council thereon” are synonymous terms and not affected by the requirement that the. comptroller shall examine and report on claims before the consideration thereof by the council. (3) That when a claim is filed with the city clerk for the action cf the common council thereon, it is in legal effect presented to such council for allowance. (3) That the sixty-day period of delay, which operates for the purposes of an appeal as a disallowance of a claim, commences to run as soon as the same is presented to the common council for allowance by filing the same with its clerk for its action thereon. ' (4) That the word “may,” in the provision to the effect that sixty days’ neglect to pass upon a claim may be taken as a disal-lowance for the purposes of an appeal, and the word “may,” in the provision to the effect that upon the disallowance of a claim the claimant may appeal, must be construed in a sense exclusive, so that when the right of appeal is perfected it must be exercised within the twenty days provided by the charter, or the claimant will be forever barred from prosecuting his claim in any court. [Syllabus by MARSHAL!^ J.]