$485. Basis of claim. Such claims are based upon either a contract obligation or upon an alleged tort. If upon a contract, they may either follow from a violation of some of its provisions expressly made, 1274 or, if not expressly made, from one arising by implication.1275 An implied contract obligation usually exists where supplies1276 or services1277 have been performed and accepted or used by the public corporation without an express contract having been made therefor. Claims based upon contract provisions depend entirely for their validity upon the legality of the contract,1278 and a determina charter should be audited under a charter provision requiring the audit of all demands against the city. 1274 Fuller v. Colfax County, 33 Neb. 716, 50 N. W. 1044; In re Dasent, 2 N. Y. Supp. 609; People v. Green, 63 Barb. (N. Y.) 390; Oshkosh Waterworks Co. v. City of Oshkosh, 109 Wis. 208, 85 N. W. 376. An amendment to a city charter re-. quiring the presentation of claims as a condition precedent to the right of action does not impair the obligation of a contract entered into prior to the adoption of such amendment. 1275 Hamilton County Com'rs v. Newlin, 132 Ind. 27, 31 N. E. 465. 1276 Brown v. City of New York, 55 How. Pr. (N. Y.) 8; Heidelberg v. St. Francois County, 100 Mo. 69; Nelson v. City of New York, 53 Hun, 630, 5 N. Y. Supp. 688; Wright v. City of Philadelphia, 14 Phila. (Pa.) 170; La France Fire Engine Co. v. Town of Mt. Vernon, 11 Wash. 203, 39 Pac. 367; Hoffman V. Clark County, 61 Wis. 5. been fully performed and accepted, original irregularities in the employment will not prevent a city from paying for them what they are reasonably worth. Auditor General v. Bay County Sup'rs, 106 Mich. 662; State v. Butler County, 164 Mo. 214, 64 S. W. 176; Douglas County v. Taylor, 50 Neb. 535; North. Pac. Lumbering & Mfg. Co. v. City of East Portland, 14 Or. 3; Mahanoy Tp. v. Comry, 103 Pa. 362; State v. Snohomish County Com'rs, 18 Wash. 160; Yates v. Taylor County Ct., 47 W. Va. 376, 35 S. E. 24. 1278 Edwards & Walsh Const. Co. v. Jasper County, 117 Iowa, 365, 90 N. W. 1006. Where work is accepted by a public corporation under a contract illegal because it contains a provision requiring the contractor to employ laborers residing in the city, it cannot in an action on the paving certificates issued in payment of such work set up as a defense the illegal contract. "There was a provision in 1277 Burke v. Bean, 79 Ala. 97. the paving contract to the effect that Printers fee for advertising the sale all the laborers employed by plaintof land for taxes. Dehm v. City of iff, except overseers and skilled men, Havana, 28 Ill. App. 520; City of should be citizens of the city of NewEllsworth v. Rossiter, 46 Kan. 237, ton. This provision is relied upon 26 Pac. 674. After services have to invalidate the contract. tion of this question involves, of course, a consideration of the authority of the public corporation to engage in or enter into such contract obligation.1279 There is no claim that any damage resulted either to the city or to the property owners by reason of increased cost in the doing of the work or otherwise. Having had the benefits of the work it does not lie in the mouth of the county or city to say that it will not pay therefor on account of this provision of the contract." Following People v. Coler, 166 N. Y. 1, 59 N. E. 716, 52 L. R. A. 814. 1279 United States v. Reed (C. C. A.) 69 Fed. 841; Marengo County v. Lyles, 101 Ala. 423; English v. Chicot County, 26 Ark. 454; Armstrong v. Truitt, 53 Ark. 287; Linden v. Case, 46 Cal. 172. The audit and allowance of a claim not legally chargeable against the county does not change its character and make it valid. Irwin v. Yuba County, 119 Cal. 686; Jolly v. Woodward, 4 Idaho, 496, 42 Pac. 512. The publishing of a delinquent tax list is a proper charge as against the county. Webb v. Baird, 6 Ind. 13; Gemmill v. Arthur, 125 Ind. 258; Feldenheimer v. Woodbury County, 56 Iowa, 379; Turner v. Woodbury County, 57 Iowa, 440; Smith County Com'rs v. Osborne County Com'rs, 29 Kan. 72. Stone v. Dispatch Pub. Co., 21 Ky. L. R. 1473, 55 S. W. 725. A claim for copies of a daily paper furnished members of the legislature containing the proceedings of the General Assembly, is a valid demand against the state. Atchison v. Lucas, 83 Ky. 451. An officer de facto acting as jailer has a proper claim against the county Again, the manner of its execu for the expense of feeding prisoners while holding office. Garrard County Ct. v. McKee, 74 Ky. (11 Bush) 234. In considering the question of appeal, transactions of a county founded upon a grant of power constituting it a quasi public corporation must be distinguished from those done in its capacity as a public corporation. Lovejoy v. Inhabitants of Foxcroft, 91 Me. 367, 40 Atl. 141. Where moneys are borrowed under charter authority and after proper action by the town, it is liable although the money as received was embezzled by the town treasurer. Bessey V. Inhabitants of Unity Plantation, 65 Me. 342; Stowell v. Jackson County Sup'rs, 57 Mich. 31. The expense of boarding and lodging jurors in a criminal case is a valid. claim. Hart v. Genesee County Sup'rs, 105 Mich. 209, 63 N. W. 67; Ransom v. Gentry County, 48 Mo. 341; State v. Babcock, 22 Neb. 38, 33 N. W. 711; City of Kearney v. Downing, 59 Neb. 549, 81 N. W. 509. Claims for coal furnished for the relief of the poor are not valid when the service is not rendered under the circumstances and conditions required by law. People v. Leavenworth, 90 Hun, 48, 35 N. Y. Supp. 445; Richmond County Sup'rs v. Ellis, 59 N. Y. 620; Rockefeller v. Taylor, 69 App. Div. 176, 74 N. Y. Supp. 812, reversing 28 Misc. 460, 59 N. Y. Supp. 1038; Reilly v. City of Philadelphia, 60 Pa. 467; Thoreson v. State Board of Examiners, 19 Utah, 18; Bunch's Ex'r v. Fluvanna County, 86 Va. 452; tion, whether it was entered into and executed by the proper officers of the corporation,1280 and, assuming the legality of the obligation in all of the preceding respects, whether or not such officials were duly authorized in a particular instance to bind the corporation in respect to a particular matter. 1281 The other class of claims considered most frequently against public corporations are those arising or sounding in tort and are based upon the liability of the public corporation as a result of its failure to perform some supposed duty in respect to which the sovereign has consented to the assumption of a liability.1282 Kollock v. City of Stevens Point, 37 Wis. 348; Land, Log & Lumber Co. v. McIntyre, 100 Wis. 245, 75 N. W. 964. Although a county has received a benefit from supplies furnished or services rendered, if it has no legal right to engage in the transaction, no remedy is available by the claimant. or demands" refer only to such as arise ex contractu. 1281 Jack v. Moore, 66 Ala. 184; Henry v. Cohen, 66 Ala. 382; Cass County Com'rs v. Crockett, 111 Ind. 316, 12 N. E. 486; Morgan County Com'rs v. Holman, 34 Ind. 256. Medical services rendered by a physician to township paupers by request of the proper township trustee constitute a valid claim against the township. Bradley v. Delaware County, 57 Iowa, 552; Hendricks v. Chautauqua County Com'rs, 35 Kan. 483; State v. Fagan, 55 Kan. 150, 40 Pac. 314; Follensbee v. St. Clair County Sup'rs, 67 Mich. 614, 35 N. W. 257; People v. Wood, 59 Hun, 616, 12 N. Y. Supp. 436; Wittmer v. City of New York, 50 App. Div. 482, 64 N. Y. Supp. 170; Union County v. Slocum, 16 Or. 237, 17 Pac. 876; Mansel v. Fulmer, 175 Pa. 377; Chesterfield County v. Hall's Ex'r, 80 Va. 321. 1280 State Trust Co. v. City of Duluth, 104 Fed. 632. A mere employe of a municipality is not authorized to enter into a contract with a water company for flushing sewers. Macon County Sup'rs v. Newell, 81 Ill. 387; Madison County Com'rs v. Burford, 93 Ind. 383; Feldenheimer v. Woodbury County, 56 Iowa, 379; Roberts v. Pottawatomie County Com'rs, 10 Kan. 29; Salt Creek Tp. v. King Iron Bridge & Mfg. Co., 51 Kan. 520; Rulon v. Inhabitants of Woolwich, 55 N. J. Law, 489; People v. Board of Auditors of Floyd, 73 Hun, 615, 26 N. Y. Supp. 564; Hubbard v. Town of Williamstown, 1282 Lewis v. State, 96 N. Y. 71, 48 66 Wis. 551; Vogel v. City of An- Am. Rep. 607; Sipple v. State, 99 N. tigo, 81 Wis. 642, 51 N. W. 1008, fol- Y. 284. "It must be conceded that lowing Kelley v. City of Madison, the state can be made liable for in43 Wis. 638; Ruggles v. City of Fond juries arising from the negligence du Lac, 53 Wis. 436; Bradley v. City of its agents or servants only by of Eau Claire, 56 Wis. 168, and dis- force of some positive statute assumtinguishing Sheel v. City of Apple- ing such liability. It is claimed by ton, 49 Wis. 125. The words "claims the respondent that such an as The greater number of claims are not those above indicated but those which are based upon a "personal injury." It is the author's opinion that the prosecution of such claims and demands has been carried to an unreasonable extent, and the custom and habit of sumption has been made by section 1, chapter 321, Laws of 1870. This gives authority to the board of claims 'to hear and determine all claims against the state of any and all persons and corporations for damages alleged to have been sustained by them from the canals of the state, or from their use and management, or resulting or arising from the negligence or conduct of any officer of the state having charge thereof, or resulting or arising from any accident or other matter or thing connected with the canals.' The act was conceived in the plainest principles of justice and was intended to afford a substantial and not a delusive remedy to parties who might be injured by the careless and negligent conduct of those who were intrusted by the state with the execution of its work. The canal was a state enterprise and was managed and controlled by its servants and reason and justice require when it engages in public enterprises from which a revenue is expected to be derived, and in the prosecution of which private property is required to be taken, and individual interests jeopardized, that it should compensate those whose property rights are thereby invaded. The object in view was the protection of the citizen and not the exemption from liability of the state; and it is quite evident that the state thereby intended to assume with reference to the management of the canals, the same measure of liability incurred by individuals and corporations en gaged in similar enterprises and to afford to parties injured the same redress which they would have against individuals and corporations for similar injuries. The use of the terms 'the negligence or conduct of any officer of the state having charge thereof' were obviously descriptive and intended to embrace all those persons in the employ of the state entrusted with the performance of duties relating to the canals and from a neglect or omission to perform which damages might occur to individuals. It is unreasonable to suppose that the state intended to confine its liability to cases arising from the negligence of those officers only having the duty of general supervision to perform and deny relief in cases where damages arose from the neglect of others having practical control of its operations. It is unquestionably the duty of all state officers to scrutinize closely the authority under which claims are made upon the public treasury and defeat such as are not clearly warranted by law; but it is unbecoming the dignity and honor of a great state to attempt to evade the fulfillment of its obligations according to their spirit and meaning or to stint the payment of a proposed indemnity by a constrained or illiberal construction of the language in which its promise is framed. The act is broad and comprehensive in its language and should be construed in the spirit which inspired its enactment." bringing personal injury claims and actions against public corporations has largely resulted from the frequency with which these claims are pressed as against private corporations and private individuals. Litigation of this character is also the result, largely, of the activity of some members of the bar who do not, occasionally, hesitate to employ methods not beyond reproach in the presentment and prosecution of such claims and actions. It is: time that the courts checked or attempted to check such litigation. The alleged liability is based upon a supposed failure of the corporation to properly care for an individual. The character of public corporations should not be disregarded or lost sight of. They are not organizations for the personal gain of its members; they are governmental agents merely, organized for the benefit and advantage of the community at large, to carry out some one or more of the proper functions of government which never had or never can include supplying to an individual the attributes of ordinary care, caution or common sense; they derive all of their funds including those which they are or may be required to pay in settlement of fictitious claims from the taxation of personal and property interests within their jurisdiction. The care which the state or any of its delegated agencies is required or supposed to exercise in the physical protection of the individual while following ordinary and personal avocations is very slight. The policy of permitting the allowance of these claims against public corporations, if continued, will lead to their bankruptcy, and, conversely, tend to destroy the self-reliance and responsibility of every member of the community.1283 The 1283 Since writing the text, the author has had the opportunity of examining a report of the Civic Federation of Chicago under date of July 27th, 1903, which contains many interesting statements supporting the contention of the text. From this the following extracts are taken: "The Civic Federation has interested itself in the matter of suits against the city growing out of personal injury claims. In a report of the executive committee, it finds that there are nearly three thousand of such suits pending, nearly all for damages for alleged injuries from defective sidewalks. There are now judgments against the city aggregating nearly $4,000,000, drawing five and six per cent. interest, resulting from personal injury claims. There has been an alarming increase in the number of actions brought, amounting to more than one hundred per cent. during the last five years. Whatever the responsibility for the rapidly growing abuse it is menacing. the city with bankruptcy. The law- |