(concurring)—While I entertain no disposition to dissent from the conclusion reached in the foregoing opinion, nor to disagree with the grounds upon which it is placed, I am strongly of the opinion that the decision could be soundly, and ought to be frankly, placed upon another ground. The act of 1909, embodied in Rem. & Bal. Code as §§ 7995, 7996 and 7997 (P. C. 77 §§ 133, 135, 137), relating to claims against cities of the first class, has no independent force. As shown by its first section, it can only be invoked by reference to the city charter and as applying to claims prescribed and filed “in compliance with valid charter provisions of such city.” That act does not extend the requirement of notice as contained in any such charter provision, nor change such requirement in any manner except by engrafting thereon the additional requirement of “a statement of the actual residence of such claimant, by street and number, at the date of presenting and filing such claim; and also a statement of the actual residence of such claimant for six months immediately prior to the time such claim for damages accrued.” We so held in Wolpers v. Spokane, 66 Wash. 633, 120 Pac. 113, and Kincaid v. Seattle, 74 Wash. 617, 134 Pac. 504, 135 Pac. 820.
The second section of the act expressly declares, “Nothing in this act shall be construed as in any wise modifying, limiting or repealing any valid provision of the charter of any such city relating to such claim for damages. . . .” Rem. & Bal. Code, § 7996 (P. C. 77 § 135). The third section of the act provides that “Compliance with the provisions of this *381act is hereby declared to be mandatory. . . .” Rem. & Bal. Code, § 7997 (P. C. 77 § 137).
Clearly the declaration in this act that it is not intended to modify the provisions of the city charter otherwise than by adding the requirement that the place of residence be stated in the notice, is just as mandatory as is the requirement to state such place of residence. There is nothing in the whole act indicating any intention to change charter provisions touching notice in any other respect, or to change any construction which had theretofore been placed upon such charter provisions by this court in any other respect.
Long prior to the passage of the act of 1909 as embodied in the three sections of the code above referred to, this court, in the case of Born v. Spokane, 27 Wash. 719, 68 Pac. 386, in construing a charter provision of the city of Spokane which, touching the question here under consideration, cannot be distinguished from the charter provision of the city of Seattle here involved, had held that, while such provisions are reasonable and in furtherance of justice, they must be reasonably construed, that a reasonable compliance with their terms is all that can be demanded, and that “if it appears that it was an impossibility for the claimant to make his claim within the time prescribed, he will not be held to a literal compliance with the provisions of the law.” It is there held in substance, that by analogy to the application of an ordinary statute of limitations, one who is incapacitated, by reason of his injuries, to file a claim within the period prescribed may do so when capacity is restored, and that the plea of that fact sufficiently excuses the delay in filing the claim to take the case to the jury. As there said, “It would work a miscarriage of justice to hold that one who is injured should be barred from collecting meritorious damages by reason of the fact that he was incapacitated from filing his claim until after the time prescribed had expired.” These considerations appeal to the writer as being just as sound *382now as they were when they were first announced. The rule there announced rests on the plainest principle of abstract justice, namely, that a person should never be deprived of, or estopped to assert, a right without fault on his own part, in the absence of an express declaration to that effect in the valid exercise of the police power.
This phase of the Born case has never been modified or overruled by any decision of this court, unless it was impliedly overruled by the original decision in the case now before us. It was not overruled nor in any manner affected by the case of Ransom v. South Bend, 76 Wash. 396, 136 Pac. 365. In that case no charter provision of any kind was involved. It was based wholly upon a statute relating to cities of the second, third or fourth classes, a statute complete in itself and wholly distinct from the statute here involved. Rem. & Bal. Code, § 7998 (P. C. 77 § 57).
Prior to the passage of the act- of 1909 relating to claims against cities of the first class, this court had, by an unbroken line of decisions, held that a substantial compliance with such charter provisions is all that can be reasonably required. King v. Spokane, 52 Wash. 601, 100 Pac. 997; Falldin v. Seattle, 50 Wash. 561, 97 Pac. 658; Hammock v. Tacoma, 40 Wash. 539, 82 Pac. 893; Ellis v. Seattle, 47 Wash. 578, 92 Pac. 431. With this construction of all such charter provisions before it, and presumably knowing that we had in the Born case distinctly held that physical or mental incapacity induced by the injury excused the failure to file a claim until such capacity was restored, the legislature did not, in the act of 1909, require any different construction or declare mandatory any such charter provision, but only declared mandatory its own added requirement that the place of residence be stated in the claim. This court, by a decision En Banc, so held without a dissenting voice in the recent case of Maggs v. Seattle, 86 Wash. 427, 150 Pac. 612. The legislature in the act in question not only did not *383expressly modify such charter provisions as theretofore construed by this court, but, on the contrary, expressly declared that “Nothing in this act shall be construed as in any wise modifying . . . any valid provision of the charter of any such city relating to such claims for damages.” This was, by necessary implication, an adoption of the construction of the charter which had so long been placed upon it by this court.
To the writer, there seems to be no sound escape from the view that the act of 1909, relating to cities of the first class, not only did not change the rule laid down in the Born case, but actually acquiesced in that rule, since with that decision before it it expressly disclaimed any intention to “modify such charter provisions in any wise.”
The second claim, personally verified by the claimant in this action after she had recovered her mental and physical faculties, should be held a sufficient compliance with the charter. The statutory provision is in nowise involved.
Fullerton, J., concurs with Ellis, J.