Oshkosh Water Works Co. v. City of Oshkosh

Wisconsin Supreme Court

Oshkosh Water Works Co. v. City of Oshkosh

81 N.W. 1040, 106 Wis. 83, 1900 Wisc. LEXIS 23

CourtWisconsin Supreme Court

DecidedFebruary 27, 1900

StatusPublished

Cited by13 cases

This text of 81 N.W. 1040 (Oshkosh Water Works Co. v. City of Oshkosh) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Oshkosh Water Works Co. v. City of Oshkosh, 81 N.W. 1040, 106 Wis. 83, 1900 Wisc. LEXIS 23 (Wis. 1900).

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Opinion

WiNslow, J.

The charter of the city of Oshkosh (ch. 59, Laws of 1891) provides: “No action shall be maintained by any person against the city upon any claim or demand until such person shall first have presented his claim or demand to the common council for allowance, and the same shall have been disallowed in whole or in part; provided, that the failure of such common council to pass upon such claim within sixty days after the presentation of such claim shall be deemed to be a disallowance thereof.” Sec. 4, subch. XXI. “ The determination of the common council disallowing in whole or in part any claim shall be final and conclusive, and a bar to any action in any court founded on such claim, unless an appeal be taken from the decision of such common council as in this act provided.” Sec. 5. “No claim shall be considered by the council or reported to a committee till it shall have been examined and reported on by the comptroller.” Sec. 1, subch. IX. Another section (sec. 6, subch. XXI) provides for an appeal to the circuit court by written notice served upon the city clerk within twenty days after the disallowance, and by the execution of a bond to the city in the sum of $150, “ with two sureties to be approved by the city attorney and comptroller, conditioned for the faithful prosecution of such appeal and the payment of all costs that shall be adjudged against the appellant in the circuit court.”

The question presented by the record is whether the circuit court acquired jurisdiction by either of the attempted appeals.

The first appeal was confessedly taken within the prescribed time, but the bond given was confessedly bad under the rule laid down in Drinkwine v. Eau Claire, 83 Wis. 428, and for precisely the same reason given in that case. It is claimed, however,' that there has been a waiver of the objection by the action of the city attorney and comptroller in approving the bond. This claim cannot be sustained. The [86]*86question is one of jurisdiction of the subject matter, and not merely of the person. Only by substantial compliance with the requirements of the statute can the circuit court obtain jurisdiction of the subject matter. Drinkwine v. Eau Claire, supra; Telford v. Ashland, 100 Wis. 238. The parties cannot confer jurisdiction of the subject matter upon the court by express agreement, much less by waiver.

The second attempted appeal papers were, however, sufficient in form, and were effectual if served in time. The action of the common council in refusing to pass the claim over the mayor’s veto was taken November 22,1898, and, if this be considered a “ decision ” disallowing the claim, then the second appeal was not taken within twenty days thereafter, and hence was not taken in time. If, however, as is argued, the sustaining of the veto by a minority vote was not action by the council, but simpty constituted a failure to pass upon the claim, then the question arises as to when the claim was presented to the council within the meaning of sec. 4, subch. XXI. If it was presented when filed with the city clerk (September 24,1898), then the sixty-day period of nonaction which is deemed a disallowance expired November 23d, and the twenty-day period for appeal expired December 13th, and the appeal is too late. If, however, the actual introduction of the ’claim into the council (November 10th) be considered its presentation, then the sixty-day period did not expire until January 9, 1899, and the appeal was taken in time. Following the rule laid down in Bacon v. Antigo, 103 Wis. 10, where a similar charter provision was involved, we must hold that the filing of the claim with the clerk was the presentation thereof to the council, and hence that the second attempted appeal, in any view of the facts, was too late.

By the Court.— Order affirmed.

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WiNslow, J.

The charter of the city of Oshkosh (ch. 59, Laws of 1891) provides: “No action shall be maintained by any person against the city upon any claim or demand until such person shall first have presented his claim or demand to the common council for allowance, and the same shall have been disallowed in whole or in part; provided, that the failure of such common council to pass upon such claim within sixty days after the presentation of such claim shall be deemed to be a disallowance thereof.” Sec. 4, subch. XXI. “ The determination of the common council disallowing in whole or in part any claim shall be final and conclusive, and a bar to any action in any court founded on such claim, unless an appeal be taken from the decision of such common council as in this act provided.” Sec. 5. “No claim shall be considered by the council or reported to a committee till it shall have been examined and reported on by the comptroller.” Sec. 1, subch. IX. Another section (sec. 6, subch. XXI) provides for an appeal to the circuit court by written notice served upon the city clerk within twenty days after the disallowance, and by the execution of a bond to the city in the sum of $150, “ with two sureties to be approved by the city attorney and comptroller, conditioned for the faithful prosecution of such appeal and the payment of all costs that shall be adjudged against the appellant in the circuit court.”

The question presented by the record is whether the circuit court acquired jurisdiction by either of the attempted appeals.

The first appeal was confessedly taken within the prescribed time, but the bond given was confessedly bad under the rule laid down in Drinkwine v. Eau Claire, 83 Wis. 428, and for precisely the same reason given in that case. It is claimed, however,' that there has been a waiver of the objection by the action of the city attorney and comptroller in approving the bond. This claim cannot be sustained. The [86]*86question is one of jurisdiction of the subject matter, and not merely of the person. Only by substantial compliance with the requirements of the statute can the circuit court obtain jurisdiction of the subject matter. Drinkwine v. Eau Claire, supra; Telford v. Ashland, 100 Wis. 238. The parties cannot confer jurisdiction of the subject matter upon the court by express agreement, much less by waiver.

The second attempted appeal papers were, however, sufficient in form, and were effectual if served in time. The action of the common council in refusing to pass the claim over the mayor’s veto was taken November 22,1898, and, if this be considered a “ decision ” disallowing the claim, then the second appeal was not taken within twenty days thereafter, and hence was not taken in time. If, however, as is argued, the sustaining of the veto by a minority vote was not action by the council, but simpty constituted a failure to pass upon the claim, then the question arises as to when the claim was presented to the council within the meaning of sec. 4, subch. XXI. If it was presented when filed with the city clerk (September 24,1898), then the sixty-day period of nonaction which is deemed a disallowance expired November 23d, and the twenty-day period for appeal expired December 13th, and the appeal is too late. If, however, the actual introduction of the ’claim into the council (November 10th) be considered its presentation, then the sixty-day period did not expire until January 9, 1899, and the appeal was taken in time. Following the rule laid down in Bacon v. Antigo, 103 Wis. 10, where a similar charter provision was involved, we must hold that the filing of the claim with the clerk was the presentation thereof to the council, and hence that the second attempted appeal, in any view of the facts, was too late.

By the Court.— Order affirmed.

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81 N.W. 1040, 106 Wis. 83, 1900 Wisc. LEXIS 23, Counsel Stack Legal Research, https://law.counselstack.com/opinion/oshkosh-water-works-co-v-city-of-oshkosh-wis-1900.

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