When a municipal corporation voluntarily engages in selling and distributing water to its customers for its local advantage or profit, it enters the field of ordinary private business, and has the same rights and is subject to the same liabilities as private corporations or individuals with respect to damages from impurity of water. (Keever v. City of Mankato, 113 Minn. 55, Ann. Cas. 1912A, 216, 33 L.R.A. (n.s.) 339, 129 N.W. 158, 775;Lockwood v. Dover, 73 N.H. 209, 61 A. 32; Danaher v.Brooklyn, 119 N.Y. 241, 7 L.R.A. 592, *Page 369 23 N.E. 745, 746; Stubbs v. Rochester, 226 N.Y. 516, 5 A.L.R. 1396,124 N.E. 137; Public Service Commission v. City of Helena,52 Mont. 527, 159 P. 24; Aronson v. City of Everett, 136 Wash. 312,239 P. 1011; Griffith v. City of Butte, 72 Mont. 552,234 P. 829; Van Alstyne v. City of Amsterdam, 119 Misc Rep. 817, 197 N.Y. Supp. 570; Wagner v. Rock Island, 146 Ill. 139, 21 L.R.A. 519, 34 N.E. 545; Pearl v. Inhabitants ofRevere, 219 Mass. 604, 107 N.E. 417; Brown v. Salt LakeCity, 33 Utah, 222, 126 Am. St. Rep. 828, 14 Ann. Cas. 1004, 14 L.R.A. (n.s.) 619, 93 P. 570; Wigal v. City of Parkersburg,74 W. Va. 25, 52 L.R.A. (n.s.) 465, 81 S.E. 554; Coleman v.City of La Grande, 73 Or. 521, 144 P. 468; State JournalPrinting Co. v. Madison, 148 Wis. 396, 134 N.W. 909; Lenzen v. New Broubfels, 13 Tex. Civ. App. 335, 35 S.W. 341; MillerGrocery Co. v. City of Des Moines, 195 Iowa, 1310, 28 A.L.R. 815, 192 N.W. 306.)
A water supply corporation is bound to use reasonable care and diligence in providing pure and wholesome water that is at all times free from infection or contamination which renders the water unsafe or dangerous to individuals, or unsuitable for domestic purposes, and is liable for injury from its failure to do so. (Hayes v. Torrington Water Co., 88 Conn. 609,92 A. 406; Jones v. Mount Holly Water Co., 87 N.J.L. 106,93 A. 860; Kohlmeyer v. Ohio Valley Water Co., 58 Pa. Super. 63;Green v. Ashland Water Co., 101 Wis. 258, 70 Am. St. Rep. 911, 43 L.R.A. 117, 77 N.W. 722; Ritterbush v. City ofPittsburg, 205 Cal. 84, 61 A.L.R. 448, 269 P. 930; Roscoe v.Everett, 136 Wash. 295, 239 P. 831; Aronson v. City ofEverett, supra; Hamilton v. Madison Water Co., 116 Me. 157, Ann. Cas. 1918D, 853, 100 A. 659; Pennsylvania R. Co. v.Lincoln Trust Co., 91 Ind. App. 28, 167 N.E. 721, 170 N.E. 92;Public Service Commission v. City of Helena, supra; MissoulaP.S. Co. v. Bitter Root Irr. Dist., 80 Mont. 64,257 P. 1038; 27 R.C.L., sec. 48, p. 1432.)
The trial court erred in holding that by law the state board of health was and is given exclusive jurisdiction and control over the defendant city in the matter of the furnishing and *Page 370 supplying of pure and wholesome water to its customers; that the city operated its water plant entirely in a governmental capacity, and that the city could take no action which had for its purpose the keeping of its water supply pure and wholesome without first getting permission from the state board of health to do so. There is no warrant under either the state statutes or the decisions of this court for such a holding. (See sec. 2448, Rev. Codes 1921.) As to the meaning of the term "general supervision" used in that section, see In re James, 97 Vt. 362,123 A. 385; Great Northern Ry. Co. v. Snohomish County,48 Wash. 478, 93 P. 924; Van Tongeren v. Heffernan, 5 Dakota 160, 38 N.W. 52; Stone v. Heath, 179 Mass. 385, 388,60 N.E. 975. The most that defendant can claim is that under that section the state board "has general supervision of the work of local and county boards of health." But from this it by no means follows, as contended by respondent, that "the statute and the rules and regulations of the state board of health have made the furnishing of pure water by a city a governmental function or duty." The decisions of this court and the many authorities cited above are all against such contention.
If, as all the authorities hold save the court of South Carolina, a city engaged in the business of furnishing water to its citizens does so in its private or proprietary capacity, and that negligence in that respect furnishes a valid cause of action to one injured by the use of contaminated water, then the fact that a state board of health has general supervision over the work of the local and county boards of health is beside the question of liability, since all the states from which cases have been cited above have state boards of health, each with powers of supervision as broad as those of the Montana state board, and in all those states the liability of a municipality for negligently furnishing contaminated water has been declared.
The city cannot escape liability because the need of pure and wholesome water appertains to sanitation and the general health of the city. As said in City of Denver v. Porter, *Page 371 126 Fed. 291, 61 C.C.A. 168: "If the duty in question is substantially one of a local or corporate nature, the city cannot escape responsibility for its careful performance because it may in some general way also relate to a function of government." (See, also, City of Winona v. Botzet, 169 Fed. 321, 23 L.R.A. (n.s.) 204, 94 C.C.A. 563; City of Shawnee v. Roush,101 Okla. 50, 223 P. 354; City of Galveston v. Rowan,20 F.2d 501; Esburg Cigar Co. v. Portland, 34 Or. 282, 75 Am. St. Rep. 651, 55 P. 961; Wagner v. Portland, 40 Or. 389,60 P. 985, 67 P. 300; Devoust v. City of Alameda, 149 Cal. 69, 9 Ann. Cas. 847, 5 L.R.A. (n.s.) 536, 84 P. 760, 762;Eaton v. City of Weiser, 12 Idaho, 544, 118 Am. St. Rep. 225, 86 P. 541; Aschoff v. Evansville, 34 Ind. App. 25,72 N.E. 279; City of Richmond v. Lincoln, 167 Ind. 468, 79 N.E. 445;Keever v. City of Mankato, supra; Henry v. City ofLincoln, 93 Neb. 331, 50 L.R.A. (n.s.) 174, 140 N.W. 664;Miller Grocery Co. v. City of Des Moines, supra.)
It is alleged by defendant in its answer by way of a complete defense to plaintiff's cause of action that the plaintiff gave the city no notice of his injury and of his intent to sue therefor. In fairness to the court below it may be said that while it left this alleged defense in the answer, it was of opinion that no notice was necessary before plaintiff brought action. We cannot believe that the legislature in passing section 5080, Revised Codes 1921, had in mind any injury which could not be fixed both as to time and place of occurrence in the notice required by that section. When it was passed in 1903, we submit that no such condition of affairs as is here presented could have been in the minds of the legislators, and so the injury was not within either the letter or the spirit of the section. (Megins v. City of Duluth, 97 Minn. 23, 106 N.W. 89.) Eminent authorities hold that a city engaged in the business of furnishing water to its citizens is not entitled to receive notice of claim of injuries before suit is brought because, in that respect, such a city stands upon the same footing as does a private person or corporation. *Page 372 (Henry v. Lincoln, 93 Neb. 331, 50 L.R.A. (n.s.) 174, 140 N.W. 664; D'Amico v. City of Boston, 178 Mass. 599,58 N.E. 158; Borski v. City of Wakefield, 239 Mich. 656, 215 N.W. 19;Cook v. City of Beatrice, 114 Neb. 305, 207 N.W. 518.) Appellant's argument is based on the premise that the city has full authority and control of matters relating to the purity of its water and to matters relating to public health in connection therewith. He cites a long list of cases where cities owned and operated municipal water systems in which it is held that the city, in so doing, was acting in its proprietary as distinguished from its governmental capacity.
In none of the many cases cited by appellant on this point does it appear that there was a statute, like the statute of Montana, which confers jurisdiction upon the state and local boards of health in matters relating to public water supplies, the purity of the water and the protection of the public health. Appellant's cases are, therefore, not in point. Respondent does not contend that the city, in the absence of the statute conferring this jurisdiction on the state and local boards of health, would not come within the rule announced in the cases cited by appellant. But respondent does contend that such statutes take this matter out of the hands of the city and make it a governmental function administered by the state and local boards of health. If a statute, or ordinance, shows that the duties to be performed are connected with or have reference to the preservation of the public health, then they are in furtherance of governmental functions. This has been squarely decided by this court. (Griffith v. City of Butte, 72 Mont. 552,234 P. 829.)
By Chapter 177 of the Laws of 1907, now sections 2641 to 2657, Revised Codes 1921, the state assumed full jurisdiction *Page 373 and control over water systems and supplies of water of cities for domestic use as a health measure. At the same session, sections 2444 to 2502 of the 1921 Code were enacted as Chapter 110 of the Laws of 1907, conferring on the state board of health the power and duty of enforcing the provisions of Chapters 177 and 110.
By these statutes water supplied by a city for domestic use is placed under the control of the state board of health, and the board has the same jurisdiction and control as it has over the sewage of a city, all in the interest of the public health. (Miles City v. State Board of Health, 39 Mont. 405, 25 L.R.A. (n.s.) 589, 102 P. 696.) The rules and regulations adopted by that board have the force and effect of law. (Shilkett v.State, 29 Okla. Crim. 17, 232 P. 127; Blue v. Beach,155 Ind. 121, 80 Am. St. Rep. 195, 50 L.R.A. 64, 56 N.E. 89; People v. Robertson, 302 Ill. 422, 22 A.L.R. 835, 134 N.E. 815; 29 C.J., p. 248.) While the language of these statutes and rules and regulations in some instances is permissive in form, a duty exists to exercise the power conferred. (Mayor of New York v.Furze, 3 Hill (N.Y.), 612; State Board of Health v. St.Johnsbury, 82 Vt. 276, 18 Ann. Cas. 496, 23 L.R.A. (n.s.) 766, 767, 73 A. 581.)
The whole duty, therefore, with reference to the protection of the water against pollution and when the water became polluted to determine whether or not the pollution was dangerous to health and to protect the users of the water from such danger, if it existed, rested upon the state board of health and the local health officer. The negligence, therefore, if any, was the negligence of the state board of health or of the city health officer, for which negligence the city is not liable. (Danaher v. City of Brooklyn, 51 Hun, 563, 4 N.Y. Supp. 312; s.c.,119 N.Y. 241, 7 L.R.A. 592, 23 N.E. 745; Bryant v. City of St.Paul, 33 Minn. 289, 53 Am. Rep. 31, 23 N.W. 220; Hughes v.City of Auburn, 161 N.Y. 96, 46 L.R.A. 636, 55 N.E. 389;Gilboy v. City of Detroit, 115 Mich. 121, 73 N.W. 128;Beeks v. Dickinson County, 131 Iowa, 244, 9 Ann. Cas. 812, 6 L.R.A. (n.s.) 831, 108 N.W. 311; *Page 374 Valentine v. Englewood, 76 N.J.L. 509, 16 Ann. Cas. 731, 19 L.R.A. (n.s.) 262, 71 A. 344; Nicholson v. Detroit,129 Mich. 246, 56 L.R.A. 601, 88 N.W. 695; Ogg v. City ofLansing, 35 Iowa, 495, 14 Am. Rep. 499; Hull v. Roxborough,142 N.C. 453, 12 L.R.A. (n.s.) 638, 55 S.E. 351; Murray v.Omaha, 66 Neb. 279, 103 Am. St. Rep. 702, 92 N.W. 299;Franklin v. City of Seattle, 112 Wash. 671, 12 A.L.R. 247, 192 P. 1015; Sievers v. City of San Francisco, 115 Cal. 648, 56 Am. St. Rep. 153, 47 P. 687; Metz v. Ashville,150 N.C. 748, 22 L.R.A. (n.s.) 940, 64 S.E. 881; Murray v. Villageof Grass Lake, 125 Mich. 2, 83 N.W. 995; Gross v.Portsmouth, 68 N.H. 266, 73 Am. St. Rep. 586, 33 A. 256; see, also, Dillon on Municipal Corporations, 5th ed., pp. 2879, 2896.)
The local board of health and local health officer are not, under such laws as we have under consideration, servants or agents of the municipality, for whose acts or negligence the municipality can be held liable under the doctrine of respondeatsuperior, or otherwise. (Maxmilian v. Mayor, 62 N.Y. 160, 20 Am. Rep. 468, cited with approval in State ex rel. Shea v.Cocking, 66 Mont. 169, 28 A.L.R. 772, 213 P. 594; Detroit v. Laughna, 34 Mich. 402; Lacock v. City of Schenectady,224 A.D. 512, 231 N.Y. Supp. 379; Territory v. Board ofCounty Commrs., 8 Mont. 396, 7 L.R.A. 105, 20 P. 809; City ofLafayette v. Timberlake, 88 Ind. 330; Caspary v. City ofPortland, 19 Or. 496, 20 Am. St. Rep. 842, 24 P. 1036; CountyCommrs. v. Duckett, 20 Md. 468, 83 Am. Dec. 557; Smith v.Seattle School District, 112 Wash. 64, 191 P. 858;Valentine v. Englewood, 76 N.J.L. 509, 16 Ann. Cas. 731, 19 L.R.A. (n.s.) 262, 71 A. 344.)
The appointment of the local officers was commanded by the state board of health law, and the city had no discretion in the matter, and such officers, when appointed, were under the control, direction and supervision of the state board, and the city was not given any control or supervision of their acts whatever. Control, supervision and direction of a subordinate or servant is one of the essential and necessary elements that must exist before the doctrine of respondeat *Page 375 superior can be invoked. (Hooper v. Brawner, 148 Md. 417,42 A.L.R. 1437, 129 A. 672; 39 C.J., sec. 1454, p. 1269.)
At common law a city is liable the same as a private company for sickness or death caused by the furnishing of contaminated water for the reason that in the absence of statute providing otherwise, a city exercises its private or proprietary power in supplying water for domestic use. In view of this fact the statement is made in the text-books and court opinions that a city is liable for negligence in furnishing water for domestic use the same as a private company. When, however, the state in the exercise of the police power assumes complete control and jurisdiction over the city supply so far as the public health is concerned, as has been done in Montana, the city is necessarily relieved from such liability. (19 R.C.L., p. 1114.)
Compliance with section 5080, Revised Codes 1921, with relation to notice, is a condition prerequisite to maintaining the action. The service of such notice is not a limitation which may be waived, but is a condition precedent to the right of the plaintiff to maintain the action. It must be alleged in the complaint and it must be proved by the evidence. (Eby v. Cityof Lewistown, 55 Mont. 113, 173 P. 1163; Dolenty v.Broadwater, 45 Mont. 261, 122 P. 919; Tonn v. City ofHelena, 42 Mont. 127, 36 L.R.A. (n.s.) 1136, 111 P. 715.) Plaintiff argues that when the city engages in the business of furnishing water it acts in a private and proprietary capacity, and that it is not entitled to notice of injury under section 5080. Counsel cites four cases from three states to support his views. The undoubted weight of authority, however, is contrary. (Western Salt Co. v. City of San Diego, 181 Cal. 696,186 P. 345; Frasch v. City of New Ulm, 130 Minn. 41, L.R.A. 1915E, 749, 153 N.W. 121; Dickie v. City of Centralia,91 Wash. 467, 157 P. 1084, a suit for damages for typhoid fever contracted from city water; see, also, O'Neil v. City ofRichmond, 141 Va. 168, 126 S.E. 56.) The reasons for requiring notice to the city are just as *Page 376 important in the case of private or proprietary functions as they are in governmental functions.
Contracting typhoid fever is an "injury or loss * * * received or suffered" within the meaning of section 5080, supra. As to what constitutes an "injury," see City and County of SanFrancisco v. Industrial Acc. Com., 183 Cal. 273, 191 P. 26;Vennen v. New Dells Lumber Co., 161 Wis. 370, Ann. Cas. 1918B, 293, L.R.A. 1916A, 273, 154 N.W. 640; Dove v. AlpenaHide Leather Co., 198 Mich. 132, 164 N.W. 253; H.P. Hood Sons v. Maryland Casualty Co., 206 Mass. 223, 138 Am. St. Rep. 379, 30 L.R.A. (n.s.) 1192, 92 N.E. 329; Heileman Brewing Co. v. Schultz, 161 Wis. 46, 152 N.W. 446; New River Coal Co. v.Files, 215 Ala. 64, 109 So. 360. "Injury" includes innumerable cases resulting in injury to persons, feelings or character.
Section 5080 particularly applied to waterworks: There are several instances, where statutes similar to the Montana statute have been applied directly to cases where typhoid fever was contracted. Prominent among these cases is the case of Frasch v. City of New Ulm, supra. The complaint there did not allege the service of notice of the injury and a demurrer was sustained. On appeal the judgment was affirmed. The above case is cited with approval in Dickie v. City of Centralia, 91 Wash. 467,157 P. 1084; see, also, Sheer v. City of Everett, O'Neil v.City of Richmond, Western Salt Co. v. City of San Diego, supra. The statute clearly applies to any defect in the plant or equipment of the water system or sewer system, such as a broken sewer-pipe, broken or disjointed water-main and the like, and we submit that this statute also applies to contaminated or defective water supplied in a public water system as such water is an inseparable part of such "public works." The plaintiff, Edwin J. Campbell, brought action to recover damages suffered as the result of drinking contaminated water furnished by the city of Helena, and from which he contracted typhoid fever. *Page 377
His complaint alleges that the city owns, maintains, operates and controls a water supply and system in its corporate capacity from which it furnishes water for drinking and domestic purposes on a rental basis, and so furnished water to the place where this plaintiff resides during the period covered by the allegations. It is then alleged that, in the summer of 1929, through the negligence of the defendant, its officers, agents and employees, the water became contaminated and that for a period of at least four weeks prior to the time when plaintiff became infected, the defendant had knowledge that the water it was furnishing him was germ-laden and unfit for human consumption, yet negligently failed to remedy the situation or warn plaintiff not to drink the water; that he did drink of the water at his place of residence on the thirteenth day of September, 1929, and thereby contracted typhoid fever from which he was seriously ill and confined to a hospital for a period of three weeks, to his damage in the sum of $10,000.
The defendant moved to strike certain portions of the complaint, which motion was overruled, and then answered, admitting that it owned and operated the water system but denying that it did so in its corporate capacity, and denying that it has control over the water supply. It further denied that it had any notice or knowledge that the water was contaminated prior to September 16, 1929. The answer set up two special defenses, the first being that the duty to determine the condition of the water was transferred by statute to the State Board of Health and its subordinates, the county and city health officers who had knowledge of the condition for some time prior to September 13, but failed to notify the city, and, second, that the plaintiff was not entitled to maintain his action by reason of the fact that he had not given written notice of his injury to the city as required by law.
The plaintiff moved to strike the special defenses from the answer, which motion was denied, and then demurred to the answer; the demurrer was overruled and plaintiff given ten days in which to further plead; he refused to plead further *Page 378 and thereupon defendant moved for judgment on the pleadings on the ground that each special defense constituted a complete defense to the cause of action pleaded. This motion was sustained and judgment of dismissal entered. The plaintiff has appealed from the judgment.
Three questions are presented for determination. First, in operating a municipally owned water supply and system, does the city act in its governmental or in its proprietary capacity? Second: Do the laws creating a State Board of Health and subordinate county and city health departments take the control of water systems out of the hands of the city so as to relieve it of the duty of maintaining a pure supply of water? Third: Does the law require one injured in the manner plaintiff alleges he was injured to give notice to the city as a condition precedent to the maintenance of an action for damages?
1. A city is not required to furnish water to its inhabitants,[1] but it is authorized to do so, if a majority of the taxpayers "affected thereby," on submission, shall authorize the city to enter upon this commercial enterprise. (Subd. 64, sec. 5039, Rev. Codes 1921.) For many years the city of Helena has owned and controlled its waterworks and, as far back as 1897 this court intimated that in the ownership and control of that water system the city acts in its proprietary character, as distinguished from its governmental capacity. (HelenaConsolidated Water Co. v. Steele, 20 Mont. 1, 37 L.R.A. 412, 49 P. 382.) In 1915, this court declared: "The powers granted to a municipality are to be distinguished into two classes — the first including those which are legislative, public or governmental, and import sovereignty; the second those which are proprietary or quasi private, conferred for the private advantage of the inhabitants and of the city itself as a legal person," and "when a city is engaged in operating a municipal plant under authority granted by the general law, it acts in a proprietary or business capacity. In this behalf it stands upon the same footing as a private individual or business corporation similarly situated." (Milligan v. City of Miles City,51 Mont. 374, L.R.A. 1916C, 395, *Page 379 153 P. 276.) This distinction is reiterated and the foregoing decisions are cited with approval in Public Service Commission v. City of Helena, 52 Mont. 527, 159 P. 24, and we now have no inclination to depart from a principle so long and firmly established.
2. The defendant may be said to admit the correctness of the[2, 3] foregoing statement of the law, but it contends that in the protection of the public health the city acts in its governmental capacity, which governmental function is, by law, imposed upon the State Board of Health and its subordinates, the county and city health officers.
A careful reading of the statutory provisions respecting the powers and duties of the State Board of Health (secs. 2641-2657, Rev. Codes 1921), and of their subordinates, the county and city health officers (secs. 2444-2502, Id.), discloses that, for the protection of the public health, these officials are given "general oversight and care" of the sources of all water supplies for domestic use and of the installation of water systems and sewer systems as affecting such supplies, and are commanded to consult with and advise the city authorities in such matters. It has supervisory control over the subordinate health officials and may promulgate rules and regulations, and the health officers are authorized to investigate, on complaint, alleged nuisances tending to pollute water supply sources and prohibit the continuance thereof.
This board has general supervision over the "interests and health of the citizens of the state" and may appoint local health officers if the local authorities fail to do so. The local health officer is authorized to make sanitary inspection whenever and wherever he has reason to suspect that anything exists that may be detrimental to the public health, and, under rules promulgated by the state board, he shall investigate "suspicion" of the existence of such a condition, and shall investigate premises on which cases of typhoid fever exist and take necessary steps to prevent spread of disease and prevent the use of water which may be a probable source *Page 380 of infection, and abate nuisances affecting water used for human consumption.
But all of the powers, duties and authority vested in these officers pertain with the same force when a water system is owned, controlled and operated by a private person or corporation as when it is municipally owned, controlled and operated.
If, then, the reposing of power in the health officers to protect the public health in the manner designated relieves a city of liability for negligently and knowingly furnishing polluted water to its customers, all private enterprises performing a like service are likewise relieved. This cannot be. The city furnishes water to its inhabitants in its private corporate capacity, and it stands exactly in the shoes of the old Helena Water Company from which it purchased the plant; its activity in supplying water for domestic purposes, for hire, carries with it the duty to exercise care, commensurate with the risk involved, to see that the water which it supplies is free from filth and germs which will affect the health of its customers, just as is a private operator of a water system.
To say that a city is required to supply an adequate amount of water but is not concerned with the quality of that water because the quality has to do with the public health, would be a refinement of technical hair-splitting. To say that the health officers have been negligent is no defense to the charge that the city knowingly delivered polluted water to a customer; if the attempt was to hold the city liable in a manner wherein it wasobeying a mandate of the health officers, a different question would be presented.
Even where it is held that, as the statutes give to the health officers supervisory control, the city is not required to "watch over the quality of the water as affected by the natural sources of supply," the city "is bound to keep its sewers and streets in such condition that the waters will not be polluted." (Danaher v. City of Brooklyn, 4 N.Y. Supp. 312.) *Page 381
In Griffith v. City of Butte, 72 Mont. 552, 234 P. 829, this court quoted from Denver v. Maurer, 47 Colo. 209, 135 Am. St. Rep. 210, 106 P. 875, as follows: "When the city, acting in its private corporate character, by means of that sewer, created on its streets a condition that menaced the health and comfort of the community, no authorities need be cited to show that it was its private corporate duty to remove the condition from its streets. It follows, therefore, that the flushing of that sewer, though done to preserve health and comfort, was not done primarily in the performance of the governmental duty pertaining to the preservation of health, but was done in discharge of the general duty of caring for the streets." So here, the protection of the water supplied from pollution within the corporate limits and the correction of a condition brought about by negligent care of a sewer main, was but a part of the corporate duty of the city. (6 McQuillin on Municipal Corporations, 900.)
3. Section 5080, Revised Codes 1921, declares a condition[4-8] precedent to the right to maintain any action falling within its provisions. (Tonn v. City of Helena, 42 Mont. 127, 36 L.R.A. (n.s.) 1136, 111 P. 715.) This section was first enacted as Chapter 93, Laws of 1903, under the title "An Act relating to actions against cities and towns for damages to persons injured on streets and other public grounds by reason of the negligence of any city or town in Montana"; it was carried forward, without the title, as section 3289, Revised Codes 1907, and finally as section 5080, above.
The body of the Act, unchanged since 1903, reads: "Before any city or town in this state shall be liable for damages for, or on account of, any injury or loss alleged to have been received or suffered by reason of any defect in any bridge, street, road, sidewalk, culvert, park, public grounds, ferry-boat, or public works of any kind in said city or town, the person so alleged to be injured, or someone in his behalf, shall give to the city or town council, or trustee, or other governing body of such city or town, within sixty days after the alleged injury, notice thereof; said notice *Page 382 shall contain the time when and the place where said injury is alleged to have occurred."
Counsel for the defendant earnestly contend that, as the pleadings disclose that no notice was given the city by this plaintiff, the judgment on the pleadings must be affirmed. They contend that certain language of the Act, viz.: "Any injury or loss * * * received or suffered by reason of any defect in any * * * public works of any kind," requires notice to be given in such a case as this. If the quoted language were all — if it were unaffected by the context of the Act — the argument might be advanced with much force. But it is not all. The closing requirement that the "notice shall contain the time when and the place where said injury * * * occurred" indicates that the makers of the law had in mind only physical injuries resulting directly from an accident occurring by reason of a "defect" in or on a street, sidewalk or other public work. That this is sound is demonstrated, if demonstration can be said to be necessary, by resort to well-known principles of statutory construction.
In construing a statute the paramount rule is to give effect to the intention of its makers (59 C.J. 949), or, as declared by this court, "the intention of the legislature must control." (McNair v. School District, 87 Mont. 423, 69 A.L.R. 866,288 P. 188), for "the intention of the legislature in enacting a law is the law itself." (Edwards v. Morton, 92 Tex. 152,46 S.W. 792; State v. Livingston Concrete Co., 34 Mont. 570, 9 Ann. Cas. 204, 87 P. 980.)
To ascertain the intention of the legislature, recourse must first be had to the language employed in, and the apparent purpose to be subserved by, the statute (McNair v. SchoolDistrict, above, and cases therein cited), but where the meaning of a statute is obscure, resort may be had to other canons of construction, including recourse to the title to the original Act. (Sullivan v. City of Butte, 65 Mont. 495, 211 P. 301;McLaughlin v. Bardsen, 50 Mont. 177, 145 P. 954.) *Page 383
However, in the instant case it is asserted that, by the formal adoption of the Codes of 1921 (Chap. 54, Laws of 1925), the statute is entirely divorced from its title and we cannot now look to it for any purpose. With this contention we cannot agree. The Act of 1925, approving the Codes of 1921, may cure defects in connection with the title to the Act, constitute an informal method of amendment, or render constitutional an Act which, with its title considered, would be unconstitutional (State ex rel.Urton v. American Bank Trust Co., 75 Mont. 369,243 P. 1093; State ex rel. Rankin v. Yegen, 79 Mont. 184,255 P. 744; Central of Georgia Ry. Co. v. State, 104 Ga. 831, 42 L.R.A. 518, 31 S.E. 531), but, as "the intention of the legislature * * * is the law itself," in the absence of an amendment to the original Act, either by direct legislation, or incorporation of something additional by the codifier, the codification of the laws of the state can have no bearing upon the original intention of the maker of the law; that intention lives and controls, so long as the law remains unchanged, with all the vigor it had when the Act left the hands of its maker, and resort may always be had to the title, in a proper case, as an aid to the determination of that intention.
While the question has not heretofore been directly raised in this state, the rule just stated was followed in Kelly v. Cityof Butte, 44 Mont. 115, 119 P. 171. The defendant asserts that this case is not in point, as the decision discloses that the cause of action arose in 1905, or before the codification of 1907, and that therefore the court was called upon to consider the Act as it had existed since 1903. In this counsel are mistaken; the Act under consideration but declares a condition precedent to the maintenance of an action for damages for an injury, and, if time was controlling, the court would look to the time of the commencement of the action; the time of the injury would be immaterial.
Reference to the transcript in the Kelly Case discloses that the first pleading before the court was an amended complaint filed in October, 1909, or more than two years after the codification *Page 384 of 1907. It can hardly be presumed that the action was commenced nearly three years prior to the filing of this amended complaint, but, be that as it may, the court in 1911, without regard to the time when the injury was received or the action commenced, looked to the title of the Act to determine the intention of the legislature in its enactment, and, on its consideration, overruled the decision in Butte Machinery Co. v. City ofButte, 43 Mont. 351, 116 P. 357, on the ground that the title had been "overlooked" in deciding that case. In the ButteMachinery Case, the cause of action arose in 1909, and, if counsel for the defendant here were right, that decision was sound and should not have been overruled.
If we consider the title to the Act of 1903 (now sec. 5080), there can be no question but that the legislative assembly of that year had no intention to make it applicable to such a case as this, for that body explicitly declared that it relates to an "action for damages to persons injured on streets or other public grounds."
The plaintiff was not injured in or on any street or public grounds; if he can be said to have been "injured" in the sense in which the term is here used, he was injured by drinking polluted water in his home.
In construing a statute the court must give effect to every word, phrase, clause or sentence therein, if it is possible to do so. (Stange v. Esval, 67 Mont. 301, 215 P. 807; State exrel. Thacher v. Boyle, 62 Mont. 97, 204 P. 378.) With this rule in mind, the statute before us, read in the light of its title, precludes the idea that its maker intended that notice should be given in such a case as this; the wording of the statute, in its entirety, clearly indicates the intention that the Act relates to actions based upon personal injury received by reason of an accident caused by a defect in a street or other "public place" or "works" to which the general public had the right of access and, consequently, which the city was in duty bound to use reasonable care to keep in a reasonably safe condition of repair for the protection of *Page 385 those who rightfully traveled the way or went upon the grounds.
The specific requirement that the notice give the time when and the place where the accident occurred, is for the purpose of enabling the city, or its representatives, to examine the place where the defect is alleged to exist and to investigate the question of its liability, if any. (Tonn v. City of Helena, above; Eby v. City of Lewistown, 55 Mont. 113,173 P. 1163.)
The construction placed upon dissimilar statutes by other courts is of no value here.
Counsel for defendant place great reliance upon the decision of the supreme court of Minnesota in Winters v. City ofDuluth, 82 Minn. 127, 84 N.W. 788, wherein it is held that, under an Act which contains provisions similar to ours, together with others not included in section 5080, notice was required before an employee of the city was entitled to maintain an action for damages for injuries received when he stumbled upon an obstruction or projection in the floor of the pumping station of the city's water system. This result was reached by adopting the Century Dictionary's definition of the term "public works" as including "waterworks" and deducing the legislative intent from the wording of the Act itself. The Act construed was broader than is ours, in that it provided for notices of injuries "by reason of any alleged negligence of any officer, agent, servant or employee of said city." This additional provision of the Act may indicate an intention on the part of the legislature that notice must be given the city of the cause of injury by reason of any action against the city, based upon its negligence. But while in the above decision, the court held this portion of the Act unconstitutional as not being embraced within the title, it may have been influenced thereby nevertheless in ascertaining the intention of the lawmakers. The court held that, because of the breadth of the Act, the rule of ejusdem generis did not apply, and that the words "public grounds" were intended "to be used therein in their general *Page 386 and usual sense; that is, as including all grounds held, used, or controlled by the city * * * for the use and enjoyment of the public."
We fail to see wherein the Duluth decision is in point, even if we were to accept the court's wide latitude of interpretation of the statute, for, in the instant case, the "place where" the plaintiff was injured does not come within the definition of "public grounds," and was not a "place held, used, or controlled by the city * * * for the use and enjoyment of the public" so as to come within the reasoning of the Duluth Case. The plaintiff was not injured on any "grounds held, used or controlled" by the city, but was injured by the drinking, in his own home, of contaminated water supplied to him by the city.
As indicating that the intention of the Minnesota legislature was to require notice to the city in all personal injury cases, that body later, by re-enactment, restored to the Act the portion stricken by the court, under the simple title: "An Act requiring a notice of claim for damages, to be given to cities * * * for loss or injury sustained in certain causes." (Chap. 381, Laws of Minnesota, 1913.) Under this later Act, the Minnesota court has held that the required notice must be given in a case wherein the fact conditions were practically identical with those before us (Frasch v. City of New Ulm, 130 Minn. 41, L.R.A. 1915E, 749, 153 N.W. 121), but, strangely enough, holds that the statute does not require such notice as a condition precedent to the bringing of an action for damages by one who contracted typhoid fever as a result of sewage entering her cellar from a defective sewer-pipe. (Hughes v. Village of Nashwauk, 177 Minn. 547, 225 N.W. 898.)
If the Minnesota court in the Duluth Case determined the intention of the legislature without regard to that portion of the statute which it held unconstitutional, we cannot agree with it and think the dissenting opinion of Mr. Justice Collins correctly interprets the Act and states the law when he said: "The Act, according to its title, relates simply *Page 387 to `persons injured on streets and other public grounds'; * * * the general words `and other public grounds' immediately following the word `streets,' under the well-settled rule ofejusdem generis, must be held to mean grounds of the same general kind as those mentioned, viz.: public highways and places where the general public have a right to go, and they cannot be held to mean anything different."
Statutes requiring notice and of the general type of ours are held not to apply to actions arising from negligence in carrying on any private commercial enterprise, in the following well-reasoned cases: Henry v. City of Lincoln, 93 Neb. 331, 50 L.R.A. (n.s.) 174, 140 N.W. 664; Cook v. City of Beatrice,114 Neb. 305, 207 N.W. 518; Borski v. City of Wakefield,239 Mich. 656, 215 N.W. 19; Brown v. Salt Lake City,33 Utah, 222, 126 Am. St. Rep. 828, 14 Ann. Cas. 1004, 14 L.R.A. (n.s.) 619, 93 P. 570.
Section 5080 is not applicable to the facts before us; the[9] cause of action is based upon the negligence of the city in knowingly furnishing its customers polluted water. Proof of such negligence, proximately resulting in injury and damage, would entitle the plaintiff to a judgment; consequently, the plaintiff cannot be required to prove the source of the contamination, much less give notice to the city as to the "place where" the contamination entered the water main because of a "defect" therein.
4. The defendant moved to strike paragraphs seven to eleven of[10, 11] the complaint on the ground that they are repetitious, redundant and unnecessary. It is true that each of the paragraphs mentioned repeats former allegations to the effect that the city knew that the water was contaminated for a period of four weeks prior to September 13, 1929, and knowingly furnished such contaminated water to this plaintiff, but each of those paragraphs closes with a specific allegation of negligence, to-wit: paragraph seven alleges that the city failed to disclose to the plaintiff that the water furnished was dangerous to life and health; eight, that it failed to warn him against the use of the water; nine, *Page 388 that the city failed to chlorinate the water; ten, that it failed to turn the contaminated water out of the city mains; eleven, that it failed to adopt any precautionary measures for the protection of its customers. These allegations may become important on a trial of the case, but the negligent omission alleged in paragraph eight can be proved under the allegation contained in paragraph seven, and those contained in paragraphs nine and ten can be proved under the allegations of paragraph eleven; hence, the motion should have been granted as to paragraphs eight, nine and ten. (Flatt v. Norman, 91 Mont. 543,11 P.2d 798.)
5. From what is heretofore said, plaintiff's motion to strike the two affirmative defenses set up in the answer, to the effect that the city is relieved from responsibility by reason of the authority vested in the state and local health boards and officers, and that plaintiff is not entitled to maintain his action because of his failure to give the notice required by section 5080, above, should have been sustained.
In the event that the plaintiff's testimony is sufficient to[12] put defendant upon its proof, evidence that defendant complied with the rules and regulations of the health officers, and evidence as to those rules and regulations, would be relevant under the general denials of the answer, as bearing directly upon the question of defendant's negligence and its knowledge respecting the condition of the water.
The judgment is reversed and the cause remanded for further proceedings in accordance with the views herein expressed.