dissenting.
I am unable to concur in the majority opinion. The courts are not in accord concerning the principle controlling the liability of a municipal corporation for personal injuries inflicted by reason of its defective streets. In City of Omaha v. Olmstead, 5 Neb. 446, we held that the city, in accepting its charter and the privileges therein bestowed, by implication promised the state to perform the duties thereby cast upon» the municipality, and individuals injured by the city’s failure to keep its promise had a right of action against the city. “The acceptance of these privileges is considered as raising an implied promise on the part of the city to perform its corporate .duties; and this implied agreement made with the sovereign power inures to the benefit of every individual interested in the proper performance of such duties.” 5 Neb. 446, supra. In Goodrich v. University Place, 80 Neb. 774, the law is reexamined, and the liability of a city for personal injuries is again based upon its implied contract with the sovereign state. Judge Dillon suggests there is no contractual relation between the state and a municipality in those cases where the city may not reject, but is compelled to accept, its charter. 2 Dillon, Municipal Corporations (4th ed.) sec. 967. Judge Dillon admits, however, that the reason given by us in City of Omaha v. Olmstead and Goodrich v. University Place, supra, for holding a city liable in personal injury cases, *248sustains many decisions imposing a like liability upon municipalities. If the law may raise an implied promise by a city and fasten a liability upon it for a failure to keep that promise because the city has acted under a charter it is powerless to reject, it seems arbitrary and unjust to deny the city the benefit of those immunities specifically granted the city therein.
The defendant’s charter (Comp. St. 1907, ch. 12a, sec. 207) provides that it “shall be absolutely exempt from liability for damages or injuries suffered or sustained by reason of defective public ways or the sidewalks,” unless notice in writing of the defect shall have been filed with the city clerk at least five days before the accident occurred. And, further, “in the absence of such notice, so filed, the city shall not be liable.” If, as suggested in the majority opinion, the legislature does not have the power to absolutely exempt a city from liability to respond in damages to those injured by reason of its defective streets, or may not lawfully provide that such a liability shall not arise unless the city shall have had notice in writing of the defect before such accident occurs, the statute is void if construed according to its terms. No principle of law is cited to sustain the suggestion made in the majority opinion. No adjudicated case has been referred to, nor do I believe one can be found, to sustain the proposition that the legislature may not, by the enactment of a statute uniform as to the class of cities upon which it operates, exempt a municipality from all liability because of .personal injuries inflicted by reason of its defective streets or alleys. On the other hand, statutes granting such an exemption have been sustained by courts of last resort. O’Harra, v. City of Portland, 3 Or. 525; Rankin v. Buckman, 9 Or. 253; Wilmington v. Ewing, 45 L. R. A. (Del.) 79; Williams v. City of Galveston, 41 Tex. Civ. App. 63.
In the opinion filed in the last cited case, the court did say, as suggested in the majority opinion, that the effect of the statute is to reduce the city’s liability to that of a *249county. The majority opinion is also correct in stating that we hold that a city in controlling its streets exercises corporate and not governmental functions, but that question was not involved in the Texas case. The supreme court of Texas is in harmony with our decisions upon that subject. The real point determined in Williams v. City of Galveston, supra, was that the legislature had the power to relieve a city from the liability theretofore imposed upon it by judicial construction. Having the power to grant complete immunity, it follows as a matter of course that the legislature may extend a qualified exemption to the city. We so held in Goddard v. City of Lincoln, 69 Neb. 594, where a statute identical in terms with the one considered in the case at bar was construed and upheld. That case did not involve the mere determination of the power of the legislature to relieve the city from liability in cases resting upon imputed notice to the city that a sidewalk was defective. The plaintiff in the Goddard case alleged in his petition that the sidewalk at the point where his intestate was injured was unsafe and dangerous by reason of the absence of boards which had formed a part of the way, and that the defendant city had “full knowledge” of said defect for a long time prior to the accident. The defendant’s demurrer to the petition was sustained, and we affirmed the judgment of the district court. The constitutionality of the statute was raised, considered and determined in the Goddard case, and we held that, although the city had knowledge for a long time prior to the accident of the defect responsible for the injury, the defendant was not liable because the statutory written notice had not -been given. See, also, McNally v. City of Cohoes, 53 Hun (N. Y.) 202; MacMullen v. City of Middletown, 187 N. Y. 37. But it is said that a fair consideration of all the other legislation upon the subject, in connection with the statute concerning notice and the apparent evil to be remedied thereby, will convince the impartial, judicial mind that the statute should not be literally construed. There is no ambiguity in the *250statute under consideration; it is not inconsistent with any other provision in the city charter, nor does it conflict with any other legislative act. Under these circumstances the court should hesitate before applying rules of construction to read exceptions into the written law inconsistent with the context and tenor thereof. Morrill v. Taylor, 6 Neb. 236; State v. Liedtke, 9 Neb. 468; State v. Moore, 45 Neb. 12; Stoppert v. Nierle, 45 Neb. 105.
It is argued, however, that in Tewksbury v. Gity of Lincoln, 84 Neb. 571, we departed from the literal meaning of the Lincoln charter, and for that reason are not bound by the language employed by the legislature in the statute under consideration in the instant case. Tewksbury v. City of Lincoln was a hard case, and if it is authority for the majority opinion should be overruled; but I am not willing to concede so much. In that case, while employees of the city of Lincoln were engaged for then-master in flushing a sewer during cold weather, they negligently sprayed a street crossing so that it became slippery and dangerous. The plaintiff, while those servants were at work and by reason of such negligence, slipped, fell and was injured. We said: “The law never requires an impossible thing. The section presupposes that th< defect in the public way must have existed at least five' days, otherwise the notice would be impossible.” A well-recognized rule of statutory construction was therein-applied. 2 Sutherland (Lewis), Statutory Construction (2d ed.), sec. 516. The instant suit presents no such feature, and the rule ought not to be applied. It is suggested, however, that where the defect has been caused by the city it has knowledge of the fact, waives the written notice, and the statute does not apply. This argument proceeds upon the assumption that the legislature? did not intend to release the city where it had knowledge of the defect. We held to the contrary in Goddard v. City of Lincoln, supra. Furthermore, a municipal corporation is without perception, intellect or memory, and all knowledge acquired or notice received by it must be *251by imputation from the knowledge of or notice to some of its officers or agents. In the case at bar the defendant’s negligence is inferred from the alleged fact that in 1887, 20 years before the plaintiff was injured, the municipality failed to properly tamp the dirt on each side of and above a sewer 24 inches in diameter laid 20 feet beneath the surface of a street in said city; that subsequently the dirt settled in said trench, and the city paved the street so as to conceal the open trench. The defendant’s liability, however, is predicated solely upon the alleged failure of the city to properly tamp or otherwise settle the dirt in said trench in 1887. That there may be no uncertainty upon this point I quote the eighth paragraph of the district court’s charge to the jury: “You are instructed, as a matter of law, the plaintiff cannot recover in this case unless the city was negligent in the construction of said sewer; that is to say, failed to use ordinary care and caution in tamping or ramming the dirt when refilling said sewer. And if the plaintiff has failed to satisfy you by a preponderance of the evidence that the city so failed, or if you find the evidence evenly balanced, then you should find for the defendant.”
The judicial mind may logically reason and understand that whatever knowledge the city’s agents or officers may have acquired in 1887 concerning the negligent tamping of earth in said sewer was by some process communicated to a conscious municipal mind and continued within the memory and understanding of that intangible person for two decades, but the layman may be excused for refusing to accept that logic. The mere fact that courts do thus reason is a satisfactory explanation for the enactment of the statute under consideration. Many cases are brought ágainst a city for personal injuries where the doctrine of respondeat superior is invoked to induce and justify a judgment. Where any considerable period of time exists between the happening of the alleged negligence and the injury to the plaintiff, there is fully as much probability that the city will be wrongfully mulcted in damages, as in *252those cases where imputed notice to the city of a defect in its streets caused by the negligence of third persons, or the action of the elements, is the basis for the demand. In the case at bar the defendant’s negligence, if established, is demonstrated by the testimony of a member of the defendant’s city council in 1887, who testified, in substance, that once or twice a day while the contractor was filling said trench he noticed the methods employed by the workmen, and observed that the specifications in the contract between the contractor and the city were being ignored. This evidence was supplemented by expert testimony. There is proof to the effect that at intervals subsequent to the construction of said sewer, and up to within about a year before the accident, the city had refilled parts of said trench and repaired the pavement along the line of the sewer, but the testimony further shows that the soil in Omaha is of a peculiar texture, and when used to fill excavations will settle, notwithstanding all known ordinary methods may be used to make it firm. An impartial consideration of the facts and the well-known inclination of juries to accept slight proof to support a finding of notice to a municipality of defects in its streets leads to the belief that the legislature intended to make the city’s liability depend upon the statutory written notice in all cases where a defective street is the proximate cause of an injury.
Judge Gray, in MacMullen v. City of Middletown, 187 N. Y. 37, gives a logical reason for statutes like the one considered in the instant case: “The novelty of the case, in the feature of the statutory requirement that a written notice shall have been given, is explained in the legislative purpose to make that certain, which before was, often, uncertain. The fact of knowledge should no longer be dependent upon inferences from the evidence of circumstances; nor the liability of the municipality be left to a determination reached upon an indulgent construction of the legal rule as to actual notice.” I do not understand the opinion in the cited case to hold, as suggested *253in the majority opinion, that the city was exempt from liability because the removal of snow and ice from sidewalks is a governmental function; the court recognizes that the defendant, in the absence of legislation upon the subject, would be liable for its neglect in such a case. I again take the liberty of quoting from the opinion: “Where the charter of a municipal corporation is silent upon the subject, the legislature may be regarded as having left its liability to depend upon the general rule that, if the power conferred relates to the accomplishment of corporate purposes, for the corporate benefit, the corporation is as a private company and there attaches the same responsibility as there would to a legal individual, if possessing like powers and franchises. But where the charter voices the will of the legislature, upon the subject of the responsibility of the political agency of the state to answer to the complaint of a private individual, it announces a rule of conduct which is to govern the relations of the municipality with its citizens. No right is thereby taken away; but relative rights are defined, which are to be binding upon those who choose to remain residents of the municipality.”
The opinion further demonstrates that in the distribution through charters to municipalities of governmental powers and administrative duties, there is no constitutional limitation upon the regulative power of the legislature. The legislature may specifically impose a liability, in cases like the one at bar, may attach conditions thereto, leave the citizen to the judge-nlade law upon the subject, or exempt the municipality from all financial responsibility. Tiie legislature has prescribed conditions precedent to the defendant’s liability for its defective streets, which shield it from the plaintiff’s claim. If the statute works a hardship to the citizen, the legislature should remedy the evil by an amendment to the law. We should not destroy the statute under the guise of construing its meaning.
*254The judgment of the district court should be reversed and the cause remanded for further proceedings.