18 Wn.2d 397, ARTHUR CARON et al., Appellants, v. GRAYS HARBOR COUNTY, Respondent, HAROLD KELLOGG et al., Defendants
[No. 28984.      Department One.          Supreme Court      July 6, 1943.]
ARTHUR CARON et al., Appellants, v. GRAYS HARBOR
           COUNTY, Respondent, HAROLD KELLOGG et al.,
                          Defendants.«1»

"The statutes requiring claims to be presented to that board declare a rule of policy, and the courts are not at liberty to ignore it, even though they might be persuaded in a particular case that it was a useless ceremony."

406 CARON v. GRAYS HARBOR COUNTY. [18 Wn. (2d)

Although we have frequently said that statutory provisions respecting the presentation of claims for torts against a municipality are to be liberally construed, we have always proceeded upon the principle that there must be a substantial compliance with such requirements. Sopchak v. Tacoma, 189 Wash. 518, 66 P. (2d) 302; Duschaine v. Everett, 5 Wn. (2d) 181, 105 P. (2d) 18, 130 A. L. R. 134, and cases therein cited. See, also, Johnson v. Seattle, 9 Wn. (2d) 231, 114 P. (2d) 972. In the Sopchak case, supra, we said:

"Data note already included therein in some form cannot be supplied by any method of construction, however liberal."

The inescapable logic of these rules, as just stated, when taken together, is that substantial compliance with the statute is a condition precedent to the maintenance of an action for damages against the municipality; or, expressed in another way, the filing of a claim which does not substantially comply with the statute has the same legal effect as a failure to file any claim at all.

[3] Appellant's contention upon the appeal is that under the evidence the jury was entitled to find that, in so far as the defects of her claim are concerned, the county and its commissioners had waived compliance with the requirements of the statute. This presents the question as to whether the county commissioners had the authority to waive substantial compliance with the statute and by such attempted waiver estop the county from now asserting a lack of such compliance. It is conceded by both counsel that this exact question has never been specifically determined by this court. There is, however, a wealth of general authority upon the subject, and, concededly, the authorities are not all in harmony with each other. While there are some decisions to the contrary, the weight of authority is, in our opinion, clearly to the effect that

July 1943] CARON v. GRAYS HARBOR COUNTY. 407

municipal officers do not have the power or authority to disregard the plain, mandatory provisions of claim statutes and may not waive substantial compliance therewith. We take the liberty of quoting from a few of the decisions and citing a partial list of others upholding the rule.

In Grambs v. Birmingham, 202 Ala. 490, 80 So. 874, where the plaintiff had failed to set forth in his claim the "street and house number where the party injured resides," as required by the applicable statute, the court said:

"Whatever may be said of the effect of this statute in a case where the governing authorities of the municipality cause a claim to be paid without the filing of a sworn statement, or in a case where the plaintiff is allowed to recover without the objection being taken that he has failed to comply with the statute, it follows from what has been said that when the claimant must needs resort to the courts, he can only prevail against a diligent defense by alleging and proving that he has filed a statement according to the substantial requirements of the statute. This is the plain effect of the act, imposing conditions upon the maintenance of an action allowed by the statute, and the court has no authority to give it any other. Some of the courts have assumed to ingraft upon similar statutes provisos which permit waivers, but the weight of authority sustains our statement as to the law of the case."

In Cooper v. County of Butte, 17 Cal. App. (2d) 43, 61 P. (2d) 516, the claim was not verified as required by statute. In dismissing the action, the appellate court said:

"Neither can we support appellant in his contention that the county or its officers can waive the provisions of Act 5149 in regard to the verification of claims, nor can a county be estopped from asserting as a defense, a failure of a claimant to verify his claim in accordance with that act.

" . . . The statute does not authorize a waiver nor does it provide any substitute for a written verified claim. The authorities we have cited quite generally

408 CARON v. GRAYS HARBOR COUNTY. [18 Wn. (2d)

hold that actual knowledge on the part of officers of a municipality of the facts required to be stated in the claim does not dispense with the claim itself.

"In 18 California Jurisprudence, page 799, it is said:

"`Want of power is always a defense to a municipal corporation, and no estoppel, by conduct or by ratification, to raise a defense can be urged against such a corporation. If the rule were otherwise, the corporation, by ratification, could validate an act, void as being ultra vires, and no limit could be set to its powers.'"

In Rich v. Eastport, 110 Me. 537, 87 Atl. 374, the claim was defective in two of the particulars involved in the case at bar. The court said: