I dissent.
In order to decide the question here presented, it is apparent from the provisions of section 363 of the city charter that it will first be necessary to determine who was authorized by the charter to incur the expenditure or liability represented by the claim. Further, if it should be determined that such authority lies only with the Board of Water and Power Commissioners itself, it then becomes necessary to decide whether a presentation of a claim to a subordinate of said board, such as the Chief Engineer of the Bureau of *380Water Works and Supply of the Department of Water and Power, is tantamount to presenting the claim to the board and a sufficient compliance with the charter.
The City Charter of Los Angeles provides that the Department of Water and Power shall be under the control and management of a board of five commissioners known as the Board of Water and Power Commissioners (secs. 70, 71, Los Angeles City Charter). The charter permits the said board in its discretion to divide the work of the department into two bureaus, a Bureau of Water Works and Supply and a Bureau of Power and Light, and the chief engineer of the respective bureaus is general manager thereof. (Sec. 220 (4), idem.) Without considering the pertinent charter provisions in detail, it is clear that such a general manager is an administrative officer subordinate to the board and subject to its instructions and that his authority to expend funds extends only to such funds as have been appropriated by the board. (Sees. 80 (1), (3), 82, 83, idem.)
Coneededly, the Board of Water and Power Commissioners had made no appropriation to cover a claim such as that made by respondent, and it must be concluded therefore that the general manager of the Bureau of Water Works and Supply had no authority to incur the expenditure represented by said claim. In accordance with the provisions of the charter, such authority is vested solely in the Board of Water and Power Commissioners. Nor can it be said that the general manager of said bureau had authority to incur the liability under the claim here in question. The claim here is for damages arising out of an alleged breach of a contract. In the light of the provisions of the city charter, manifestly the general manager of a department is not given authority at will to disregard or breach a contract entered into by the department. Under the circumstances, to properly found respondent’s cause of action his claim must first have been presented to said board, as the only body with authority under the charter to incur the expenditure or liability.
Compliance with the provisions of the city charter with respect to the filing of claims against the city has been held to be mandatory and to constitute a condition precedent to the commencement of any action for damages against the city. (See Continental Ins. Co. v. City of Los Angeles, 92 Cal. App. 585 [268 Pac. 920]; Spencer v. City of Los Angeles, 180 Cal. 103 [179 Pac. 163]; Crescent Wharf & Whse. *381Co. v. City of Los Angeles, 207 Cal. 430 [278 Pac. 1028] ; Geimann v. Board of Police Commrs., 158 Cal. 748 [112 Pac. 553] ; Beeson v. City of Los Angeles, 115 Cal. App. 122 [300 Pac. 993].) However, substantial compliance with said provisions is deemed sufficient, in the absence of an intention to mislead. (Sandstoe v. Atchison, T. & S. F. Ry. Co., 28 Cal. App. (2d) 215, 223 [82 Pac. (2d) 216]; Uttley v. City of Santa Ana, 136 Cal. App. 23 [28 Pac. (2d) 377].) In the instant case there was clearly no intention on the part of respondent to mislead.
There remains, therefore, the question as to whether a presentation of the claim to the chief engineer and general manager of the Bureau of Water Works and Supply may be held to be the equivalent of presentation of said claim to the Board of Water and Power Commissioners and a substantial compliance with the charter provisions.
It is not disputed that respondent’s work under his contract was under the supervision of the Bureau of Water Works and Supply; and the chief engineer of said bureau was the chief executive in charge. Moreover, as seen above, the contract provided that any such claim must be filed with the " Chief Engineer and General Manager”, and respondent’s claim states that it is made pursuant to section 30, chapter IV of the contract, the pertinent wording of the claim being as follows: “Notice is hereby given, that the undersigned Contractor on the above named work or project, pursuant to section 30, chapter IV of the contract and specifications hereby makes claim for compensation for damages by reason of the acts or omissions of the Board of Water and Power Commissioners of the Department of Water and Power of the City of Los Angeles, and its agents, in failing to comply with the terms and conditions of said contract and specifications on the part of said Board and its agents to be performed.” The section of the contract referred to has already been quoted in full in the majority opinion. The claim does not state that it is made pursuant to the charter provisions, although of course this would not be necessary if the claim were in fact properly presented.
It does not appear from the record that the claim was ever transmitted to or considered by the Board of Water and Power Commissioners. The reply to respondent’s claim was made by the chief engineer of the Bureau of Water Works and Supply and there is no indication therein that any ac*382tion was taken on the claim by the board or that it had ever been presented to the board for its consideration. The only reasonable inference to be drawn from the record is that the claim was considered and acted upon by said chief engineer and general manager as the chief administrative officer of that particular bureau of the Department of Water and Power.
The letter written by the chief engineer notifying respondent of the rejection of his claim, set forth in full in the opinion of the majority of the court, furnishes no foundation whatsoever for any inference that the claim was acted upon and rejected by the Board of Water and Power The use of the word “we” therein can only be taken as referring to the department of which the said chief engineer was an administrative head. The distinction between the Department of Water and Power and its governing board is hereinafter pointed out. To infer that the board had acted on and rejected the claim herein is to engage first in a presumption that the claim had been presented to the board by the chief engineer, as there is no evidence that the claim was so presented. Such an inference would therefore be based upon a presumption and not upon a fact legally proved or upon a deduction properly drawn from that fact. Moreover, a presumption that the claim was presented to the board is not warranted by the facts of this ease. Whatever view is taken of the facts herein, there is no basis for a legal conclusion that the Board of. Water and Power Commissioners received and acted upon respondent’s claim.
It may also be inferred that in filing the claim it was respondent’s intention to comply with the terms of the contract and that the charter provisions were not considered.
Respondent argues that there is no appreciable or controlling legal difference between the Board of Water and Power Commissioners and the Department of Water and Power so far as the requirements of sections 363 and 376 of the city charter are concerned, and asserts that the article of the charter dealing with the Department of Water and Power uses the term “board” and the term “department” In my judgment the argument lacks substance in view of the charter provisions above referred to, which clearly indicate that the " board ’ ’ is the Board of Water and *383Power Commissioners, consisting of five persons, which forms the governing body of the Department of Water and Power, and which generally bears the same relation to the department as the board of directors bears to a private corporation. When the charter speaks of the “board” it must be taken to mean the governing body of the department as distinct from any subordinate officer or employee, and the term “board” as used in section 363 of the charter must be taken in the same sense.
The majority opinion herein states that the terms “board” and “department” have been recognized as synonymous in Douglass v. City of Los Angeles, 5 Cal. (2d) 123, 124 [53 Pac. (2d) 353], for the purpose of filing claims. In my judgment a careful reading of the ease reveals no basis for such a conclusion. The opinion of the Supreme Court therein indicates throughout that the court understood the term “board” to refer to the governing body of a department. Moreover, the decision did not involve the question here presented. At page 129, the Supreme Court there stated: “ . . . the discussion must necessarily exclude from consideration all claim for the expenditure of funds in the several departments of the city government over which the respective governing or administrative officers or boards have charge and control, with specific authority in the charter to order the expenditure thereof”. Later in the said opinion, at pages 134 and 135, the Supreme Court cites two cases holding the filing of a claim with the board as the governing body a prerequisite to the commencement of a suit against the city. One of the cases so cited, Continental Insurance Co. v. Los Angeles (supra), is clearly in point in the instant case and should control the decision of this court. At page 592, the court in the Continental case said: “So that it is apparent that the general plan or scheme and intention of the framers of the charter and of the legislature was first to provide for the presentation of a demand as a necessary prerequisite to the maintenance of a suit to the end that the city should always be given an opportunity to pay before being subjected to litigation and second, as its business and administrative responsibility increased to create new boards and commissions with the object and to the end of relieving the council of many of its responsibilities and enabling it to function, more especially as a distinctive legislative body. After the adoption of the charter as new boards and com*384missions were created, and broad powers and duties, and independent functions were given to them, so, consistently, was the charter amended from time to time to make its provisions harmonize with this main purpose, and in this connection to provide that before paying any demand it must first be presented to and approved by the board or commission authorized by the charter to incur the expenditure or liability represented. The entire plan and scheme of approving and auditing every demand disclosed by the provisions of the charter . . . makes it apparent that the prerequisite presentation of a demand in accordance with the provisions of the charter requires that that demand be first presented to the board or commission without whose approval the council may not order it paid, . . . The demand should first be presented to the board, so that if it approved the demand it could recommend the ‘expenditure’.”
The last sentence of the above quotation clearly reveals the reason for the charter provisions here considered and the necessity therefor. Under the charter, the board alone has the authority to authorize the expenditure. Therefore, the only method of avoiding unnecessary suits is for the board to consider the claim and act upon it.
It is significant that the paragraph quoted in the majority opinion from the Douglass case, supra, is immediately followed (at p. 134) by this paragraph:
“Likewise the harbor department, established by charter amendment in 1911 (Stats. 1911, p. 2125), may be classed as a department under the management of an independent hoard with power to fix the charges for its own revenue and having control of the disbursement thereof. In the ordinary course of the business of that department it is assumed that its own funds would be sufficient to satisfy any claims for damages arising in that department. In Huey v. City of Los Angeles, 137 Cal. App. 48 [29 Pac. (2d) 918], suit was brought against the city on account of the death of a boy who was killed on a drawbridge, the maintenance and operation of which was under the charge and control of the board of harbor commissioners. It was held that an action was not maintainable against the city in the absence of a showing that a claim had been filed with that hoard.” (Italics added.)
The apparent reason for the charter provisions requiring the filing or presentation of a claim before suit compels a *385conclusion that the claim in the instant case was not properly filed or presented. In the Douglass case, supra, it was said, at page 133: “The theory of the law requiring the filing of a claim before suit contemplates that if the claim be just and proper the municipal officer or body with which the claim is filed shall have power to approve payment without suit and make such approved claim a valid claim against the city without the necessity of the claimant reducing the demand to judgment. If the board has no such authority the filing of a claim with it would be futile and would thus fail to bring notice of the claim to the municipal authority having power to order the claim paid, without suit.”
It has already been pointed out that the chief engineer and general manager of the Bureau of Water Works and Supply had no authority to approve payment of the claim without suit, but from all that appears in the record, he was the only officer who passed upon it. Obviously, in such a situation the filing of the claim was futile, as far as compliance with the charter was concerned, in that it failed to bring notice of the claim to the municipal authority having power to order the claim paid, namely, the Board of Water and Power Commissioners.
Moreover, it should be pointed out that the charter requires something more than mere formal notice. The board, officer or employee with the authority to do so must act upon the claim and accept or reject it. Section 363, above referred to, requires every claim to be first presented and approved in writing by the board, etc., and section 376 provides that no suit shall be brought thereon until so presented and rejected in whole or in part. The charter thus provides for a positive act on the part of the proper authority before a suit may be commenced. Respondent’s claim here lacked the requisite rejection by the proper authority.
It should also be pointed out that the pertinent provisions of the city charter make no distinction between claims founded in tort and those in contract. The requirement of presentation and rejection apply clearly to both.
If it be assumed that the Board of Water and Power Commissioners in the instant case intended by the provisions of the contract above mentioned to delegate to the chief engineer of the Bureau of Water Works and Supply the duty of receiving and considering claims for damages under said contract, such an attempt on the part of the board would *386be in excess of the powers granted it by the charter, of no effect and void, since the charter clearly does not permit it, and the board is without power to waive the statutory provisions of the charter. (Spencer v. City of Calipatria, 9 Cal. App. (2d) 267 [49 Pac. (2d) 320] ; Chapman v. City of Fullerton, 90 Cal. App. 463, 470 [265 Pac. 1035].) There could of course be no objection to a provision in the contract which required some condition to be met in addition to those required by the charter, but the provisions of the charter cannot be dispensed with.
Nor can it be asserted that presentation of a claim to the general manager of said bureau is analogous to presentation of a claim to the city clerk, in cases which have held that such procedure constitutes presentation to the city council. (See Lynch v. City of Los Angeles, 11 Cal. App. (2d) 633 [54 Pac. (2d) 488] ; Douglass v. City of Los Angeles, supra.) The relation of the general manager to the board of commissioners is not the same as the relation of the city clerk to the council. The city clerk acts as secretary to the council. (See. 44 (3), Los Angeles City Charter.) The charter specifically provides for a secretary to a board of commissioners, a position wholly distinct and separate from that of a general manager (see secs. 75 and 80 (2) of said charter) ; and the duties of a general manager are in no way analogous to those of the city clerk.
Viewed as an attempt to comply with the charter provisions, the filing of the claim herein with the chief engineer of the Bureau of Water Works and Supply falls short of a substantial compliance as approved in the cases of Sandstoe v. A., T. & S. F. Ry. Co., and Uttley v. City of Santa Ana, both supra. In the Sandstoe ease the charter provision in question required that the claim be first filed with the city controller and after rejection by that official, then with the legislative body of the city. The plaintiff there filed her claim with both simultaneously, which was held to be a substantial compliance since the city was given a full opportunity to investigate the merits of the claim and was not misled or prejudiced by plaintiff in filing her claim as she did. In the Uttley case the sole question was whether the name and address of the claimant’s attorney endorsed upon the claim was a substantial compliance with a charter provision requiring the name and address of the claimant to appear on the claim. In both these cases the body in au*387tliority had actually received the claim. In the instant case .it appears that the proper authority never received the claim at all, and that the person who did receive the claim was not in such a position that the proper authority might be deemed to have received and acted upon it.
To sum up, then, the situation here presented is one wherein a contract with the Department of Water and Power required a different method of presenting a claim than that provided by the city charter, and a claim was presented to the general manager of that department pursuant to the provisions of said contract, and it appears that no attempt was made to comply with the provisions of the charter as to presentation of the claim and that said claim was never presented to, or acted upon by the Board of Water and Power Commissioners, which was the board with authority under the charter to incur the expenditure or liability represented by said claim, but the claim was considered and acted upon instead by the general manager of the department. In such a case, and under such circumstances, there has not been a substantial compliance with sections 363 and 376 of the city charter, above referred to, and the claim therefore was not properly presented to and rejected by the proper authority before the commencement of suit. Respondent has consequently failed to satisfy the condition prerequisite to his cause of action herein; and this court should avoid setting aside the procedure outlined in the charter by judicial construction. (See the opinion of Mr. Justice Thompson in the Douglass case, supra, at page 140.)
As already pointed out, the Board of Water and Power Commissioners cannot alter by contract the procedure prescribed by the charter. Nor is it the province of the courts to alter such procedure, however harsh the effect may be in a particular case. A purported attempt to comply with the charter, if legally insufficient, acquires no added sufficiency by reason of the good faith related to the notice. Good faith has never been regarded by the law as a substitute for an indispensable legal requirement. It is argued in the prevailing opinion that: “Viewed from any standpoint of fairness, equity and justice, the respondent herein complied substantially with the provisions of section 363 of the Los Angeles City Charter.” It is my opinion that there are no equities involved in the issues here presented. The question is clearly one of interpretation and construction. Mani*388festly, it is not unjust for the people to establish reasonable and lawful requirements in a city charter, and when, as here, an individual in dealing with the city fails to comply with such requirements the consequences cannot be regarded either as unfair or unjust. If the respondent is the unfortunate victim of his own mistake it is not the function of the court to accommodate the charter by construction to respondent’s error. If expediency is to govern in each case when such disputes arise, there can be no standard upon which claimants generally can rely. Such elasticity of the law only creates uncertainty, and what may be obliging to a litigant in one case may be disastrous to a litigant in another.
It is not necessary to consider what would have been the effect had it appeared that the general manager transmitted respondent’s claim to the board. As is seen above, the record fails to show that this was done.
It follows from the foregoing that appellants’ motion for nonsuit should have been granted and that the court erred in denying the same, and the finding of the trial court that respondent’s claim was filed with the Department of Water and Power and “the chief engineer and general manager thereof”, and that said department rejected the same, does not support the judgment in favor of respondent, in that it fails to show a proper presentation and rejection of respondent’s claim, the prerequisite to his cause of action.
The judgment should therefore be reversed.
A petition for a rehearing was denied February 3, 1941, and appellants’ petition for a hearing by the Supreme Court was denied March 7, 1941. Shenk, J., and Traynor, J., voted for a hearing.