scribed,39 is made a condition precedent to a legal cause of action founded upon that claim. It has been held that a law of this character applies only to claims ex contractu and not to those upon an alleged tort,39a but many cases hold otherwise.40 The purpose of such a provision is evidently to permit an examination is not necessary before bringing mandamus to enforce a judgment against the corporation. Luzerne County v. Day, 23 Pa. 141; Morgan v. City of Rhinelander, 105 Wis. 138, 81 N. W. 132. But see Skinner V. Cowley County Com'rs, 63 Kan. 557, 66 Pac. 635; State v. Assmann, 46 S. C. 554, 24 S. E. 673; Short v. Civil Tp. of White Lake, 8 S. D. 148, 65 N. W. 432; Auerbach v. Salt Lake County, 23 Utah, 103, 63 Pac. 907. See, also, § 484 et seq., ante. 38 Mobile County v. Sands, 127 Ala. 493, 29 So. 261; Valcourt v. City of Providence, 18 R. I. 160, 26 Atl. 45; Norwood V. Gonzales County, 79 Tex. 218, 14 S. W. 1057; Kraft v. City of Madison, 98 Wis. 252, 73 N. W. 775. But see State v. Pennington County, 13 S. D. 430, 83 N. W. 563. 39 Thoeni v. City of Dubuque, 115 Iowa, 482, 88 N. W. 967. Such a statute will not be given a retroactive operation. Carroll v. Police of Tishamingo County, 28 Miss. 38. Unless the intention of the legislature be clear such a law will have a prospective action only. Hendry v. North Hampton, 71 N. H. 26, 51 Atl. 283. Considering Pub. St. c. 76, § 9, which allows an injured person who is prevented from filing his claim within the time prescribed to be heard on petition to the supreme court to be allowed to file it within six months of the injury if it appears that manifest injustice would otherwise be done. This is a question of fact. Jewell v. City of Ithaca, 72 App. Div. 220, 76 N. Y. Supp. 126; Born v. City of Spokane, 27 Wash. 719, 68 Pac. 386. Physical or mental disability may excuse a literal compliance with the time limitation. Welsh v. Town of Argyle, 85 Wis. 307, 55 N. W. 412; Groundwater v. Town of Washington, 92 Wis. 56, 65 N. W. 871. 39a Haggard v. City of Carthage, 168 Mo. 129, 67 S. W. 567; Dovey v. City of Plattsmouth, 52 Neb. 642, 73 N. W. 11. The statute only applies in actions for negligence. Champion v. Sessions, 1 Nev. 478; McDonough v. City of New York, 15 Misc. 593, 37 N. Y. Supp. 1; Quinn v. City of New York, 68 App. Div. 175, 74 N. Y. Supp. 89; Werner v. City of Rochester, 149 N. Y. 563, 44 N. E. 300; Chick v. Newberry Co., 27 S. C. 419, 3 S. E. 787; Kelley v. City of Madison, 43 Wis. 638; Bradley v. City of Eau Claire, 56 Wis. 168. See, also, Bausher v. City of St. Paul, 72 Minn. 539, 75 N. W. 745; Angell v. City of West Bay City, 117 Mich. 685, 76 N. W. 128. Section 980, ante. 40 Barbour County v. Horn, 41 Ala. 114; Bancroft v. City of San Diego, 120 Cal. 432, 52 Pac. 712; Adams v. City of Modesto (Cal.) 61 Pac. 957; Springer v. City of Detroit, 118 Mich. 69, 76 N. W. 122; Pulitzer v. City of New York, 48 App. Div. 6, 62 N. Y. Supp. 587. 41 of the claim by the proper officials, and if meritorious, its audit, allowance and payment in a regular manner and without unnecessary expense. The subject of claims has already been discussed in previous sections.42 A compliance with the statutes is essential to the creation of a liability, and this involves an application of the principle of strict construction in connection with the form in which the claim may be filed and the time of its presentment.45 § 1156. Service of process. 43 44 A legal judgment can only be obtained where the court has jurisdiction not only of the subject-matter but also of the parties. Where a right of action exists as against public corporations, it is essential to the rendition of a legal judgment that the court obtain jurisdiction of the defendant through the service of pro Section 261 of the charter of greater New York applies to actions against the city ex delicto; disapproving Harrigan v. City of Brooklyn, 119 N. Y. 156, 23 N. E. 741, and McDonough v. City of New York, 15 Misc. 593, 37 N. Y. Supp. 1. Jewell v. City of Ithaca, 72 App. Div. 220, 76 N. Y. Supp. 126; Luke v. City of El Paso (Tex. Civ. App.), 60 S. W. 363; Welsh v. Town of Argyle, 85 Wis. 307, 55 N. W. 412; Flieth v. City of Wausau, 93 Wis. 446, 67 N. W. 731. But see City of Salina v. Kerr, 7 Kan. App. 223, 52 Pac. 901. 41 Eppig v. City of New York, 57 App. Div. 114, 68 N. Y. Supp. 41; McLendon v. Anson County Com'rs, 71 N. C. 38; Brown v. Fleischner, 4 Or. 132. 42 See §§ 484 et seq., ante. 43 Barrett v. City of Mobile, 129 Ala. 179, 30 So. 36; Yolo County v. City of Sacramento, 36 Cal. 193; City of Hutchinson v. Van Cleve, 7 Kan. App. 676, 53 Pac. 888. Allowance of costs. Adams v. City of Modesto (Cal.) 61 Pac. 957; Eisenmenger v. St. Paul Water Board, 44 Minn. 457, 47 N. W. 156; City of Lincoln v. Grant, 38 Neb. 369, 56 N. W. 995; City of Hastings V. Foxworthy, 45 Neb. 676, 63 N. W. 955, 34 L. R. A. 321; Reining v. City of Buffalo, 102 N. Y. 308; Hohman v. Comal County, 34 Tex. 36; Flieth v. City of Wausau, 93 Wis. 446, 67 N. W. 731; O'Connor v. City of Fond du Lac, 109 Wis. 253, 85 N. W. 327, 53 L. R. A. 831; Steltz v. City of Wausau, 88 Wis. 618, 60 N. W. 1054. 44 Rhoda v. Alameda Co., 69 Cal. 523, 11 Pac. 57; Johnson v. City of Troy, 24 App. Div. 602, 48 N. Y. Supp. 998. But see Taylor v. Canyon County, 7 Idaho 171, 61 Pac. 521. 45 Selden v. Village of St. Johns, 114 Mich. 698, 72 N. W. 991. A statute is not waived by the introduction of testimony to meet the plaintiff's case. Arthur v. Village of Glens Falls, 66 Hun, 136, 21 N. Y. Supp. 81. cess strictly in the manner provided by law.46 Certain officials or agents of the corporation may be designated as those on whom process can be legally served. It necessarily follows that if a judgment is based upon service in a manner or upon an official not thus designated, it cannot be enforced.48 § 1157. Taxpayer's actions. The greater number of causes of actions against public corporations arise through the exercise by them of their powers in respect to taxation or the expenditure of public moneys raised through taxation. The principle suggested in a previous section “9 applies with great force here and, as has been said by an eminent author:50 "In one of the early chapters of this work reference was made to the fundamental principle of constitutional right that no one shall be deprived of his property except by the law of the land, or, as it is sometimes expressed, by due process of law; and it is was said that this principle was as much applicable in tax cases as in any others. It was also said, in substance, that however summary and apparently arbitrary may be the methods and processes in the levy and enforcement of taxes, they cannot deprive the citizen, when his property is taken of a trial of the right to take it, before some impartial tribunal, to which the public authorities must justify their proceedings." The same author, however, after a full discussion of the remedies for wrongful action in tax proceedings, said as follows: 51 "It will be apparent from what has appeared in this chapter, that many serious errors may be committed and many wrongs done in the 46 City of North Lawrence V. Hoysradt, 6 Kan. 170. Service of process may be waived by the corporation. Lucky v. Police Jury of Bienville, 46 La. Ann. 679. 47 Kane County Sup'rs v. Young, 31 III. 194; Carr v. Belton School Dist., 42 Mo. App. 154; Inhabitants of Phillipsburg v. Raub, 37 N. J. Law, 48; Cooper v. Borough of Cape May Point, 67 N. J. Law 437, 51 Atl. 511; Loughran v. City of Hickory, 129 N. C. 281, 40 S. E. 46; Alt man v. School Dist., 35 Or. 85, 56 Pac. 291. 48 Gross v. Sioux County, 2 Dill. 509, Fed. Cas. No. 5,842; City of Waverly v. Auditor of Public Accounts, 100 Ill. 354. Both parties should be within the jurisdiction of the court. Vogel v. Brown Tp., 112 Ind. 299, 14 N. E. 77. 49 See § 1151, ante. 50 Cooley, Taxation (2d Ed.) p. 746: 51 Cooley, Taxation (2d Ed.) p. 823. exercise of the power to tax, which the parties wronged must submit to, because the law can afford them no redress whatever. All injuries which result from an exercise of political or legislative authority are to be included in this category; and these are often the most serious which, in matters of taxation, the people are visited with. In all such cases, the authority of the judiciary is confined to an inquiry into the jurisdictional question, and if it appears that the political or legislative body has kept within the limits of its authority, the judiciary must pause there, and admit its incompetency to inquire into wrongs which, within those limits, may have been committed. Courts of equity have but a limited jurisdiction, extending to few cases besides those in which the impelling motive on the part of the assessors has been to do injustice and inflict injury. The chief protection of the citizen must at last be sought in the intelligence and integrity of public officers, and where these fail, as too often they do, the injury must frequently prove irreparable." The right of the taxpayer to bring suit or commence proceedings may arise from action of the public corporation in creating an excessive debt or an illegal one and which must be paid through an exercise of the power of taxation, a portion of which the taxpayer complaining must personally pay.52 In previous sections 53 the validity of an expenditure of public funds as based upon the purpose for which it is to be used was discussed and a taxpayer clearly has the right when public funds are to be used, a debt incurred,55 or a tax 52 Cason v. City of Lebanon, 153 Ind. 567, 55 N. E. 768; Holliday v. Hilderbrandt, 97 Iowa, 177, 66 N. W. 89. Action to enjoin payment of and cancel certain bonds of a school district. Dorothy v. Pierce, 27 Or. 373, 41 Pac. 668; Mauldin v. City Council of Greenville, 33 S. C. 1, 11 S. E. 434, 8 L. R. A. 291; Wormington v. Pierce, 22 Or. 606, 30 Pac. 450; Lynn v. Polk, 76 Tenn. (8 Lea) 121; Nalle v. City of Austin (Tex. Civ. App.) 21 S. W. 375; Board v. Texas & P. R. Co., 46 Tex. 316; McVichie v. Town of Knight, 82 Wis. 137, 51 N. W. 1094. 53 See §§ 415 et seq. 54 54 Rockefeller v. Taylor, 69 App. Div. 176, 74 N. Y. Supp. 812, reversing 28 Misc. 460, 59 N. Y. Supp. 1038. See, also, §§ 1131 and 1133, ante. 55 Crampton v. Zabriskie, 101 U. S. 601. "Of the right of resident taxpayers to invoke the interposi tion of a court of equity to prevent an illegal disposition of the moneys of the county or the illegal creation of a debt which they in common with other property holders of the county may otherwise be compelled to pay, there is at this day no serious question." Bradford v. City and County of San Francisco, 56 levied, for a purpose not public in its character, to a remedy for such an illegal use of public revenue. A tax may also be irregularly or improperly levied 57 or the power of taxation irregularly exercised.58 A taxpayer also has the undoubted right to prevent the misappropriation of the proceeds of a tax levied for a special purpose.59 Property exempt from taxation may, by public officers, be made subject to burdens not legally imposed upon it.60 The tax levied may be upon property not within the jurisdiction of the district levying it. It may be illegal because of the principle on which it is based or void. In all of these cases a taxpayer is entitled to a remedy for the correction of the wrong. The one ordinarily used is the writ of injunction and a reference is made 112 Cal. 537, 44 Pac. 912; Wright v. Dunham, 13 Mich. 414; Union Pac. R. Co. v. Dawson County, 12 Neb. 254; Moore v. School Directors of Clearfield, 59 Pa. 232. Coo 56 Jager v. Doherty, 61 Ind. 528; Bittinger v. Bell, 65 Ind. 445. ley, Taxation (2d Ed.) p. 764. 57 Chicago, M. & St. P. R. Co. v. Phillips, 111 Iowa, 377, 82 N. W. 787; Winkler v. Halstead, 36 Mo. App. 25. 58 Cleveland, P. & A. R. Co. v. Pennsylvania, 882 U. S. (15 Wall.) 300; Davidson v. City of New Orleans, 96 U. S. 97; Hagar v. Reclamation Dist. No. 108, 111 U. S. 701; Davis v. City of Clinton, 55 Iowa, 549; Howe v. City of Cambridge, 114 Mass. 388; Parrotte v. City of Omaha, 61 Neb. 96, 84 N. W. 602. But see Union Pac. R. Co. v. Dodge County Com'rs, 98 U. S. 541. Cooley, Taxation (2d Ed.) p. 750. "For a merely irregular assessment the statutory remedy is also the exclusive remedy. It is supposed to be adequate to all the requirements of justice, and it is the party's own folly if he fails to avail himself of it." Citing many cases. 61 59 Maenhaut v. City of New Orleans, 2 Woods, 108, Fed. Cas. No. 8,929; Board of Liquidation v. McComb, 92 U. S. 531; Sleight v. People, 74 Ill. 47; Hospers v. Wyatt, 63 Iowa, 264; National Bank of Lawrence v. Barber, 24 Kan. 534; Osterhoudt v. Rigney, 98 N. Y. 222; Dean v. Lufkin, 54 Tex. 266; State v. Haben, 22 Wis. 660. Cooley, Taxation (2d Ed.) pp. 766, 767. But see State v. Cobb, 8 S. C. (8 Rich.) 123; State v. Leaphart, 11 S. C. 458. 60 United States v. Lee, 106 U. S. 196; Secor v. Singleton, 35 Fed. 376; Kimball v. Merchants' Sav., Loan & Trust Co., 89 Ill. 611; Com. v. Colley Tp. Sup'rs, 29 Pac. 121; Phelan v. Smith, 22 Wash. 397, 51 Pac. 31. 61 Gage v. Graham, 57 Ill. 144; Union Trust Co. v. Weber, 96 Ill. 346; Morrison v. Wasson, 79 Ind. 477; Bristol v. Johnson, 34 Mich. 123; Horn v. Town of New Lots,. 83 N. Y. 100; Weber v. Dillon, 7 Okl. 568, 54 Pac. 894; St. Clair School Board's Appeal, 74 Pa. 252. 2 Desty, Taxation, p. 607. |