City of Chicago v. Manhattan Cement Co.

• Decision Date: 17 February 1899
• Citation: 178 Ill. 372,53 N.E. 68
• Parties: CITY OF CHICAGO v. MANHATTAN CEMENT CO.
• Court: Illinois Supreme Court

178 Ill. 372

53 N.E. 68

CITY OF CHICAGO

v.MANHATTAN CEMENT CO.¹

Supreme Court of Illinois.

Feb. 17, 1899.

Appeal from circuit court, Cook county; Francis Adams, Judge.

Action by the Manhattan Cement Company against the city of Chicago. Judgment for plaintiff. Defendant appeals. Affirmed.

Charles S. Thornton, Corp. Counsel, and Thomas J. Sutherland, for appellant.

Geo. Willard (J. J. Brooks and C. V. Gwin, of counsel), for appellee.

WILKIN, J.

Appellee brought its action on the case, in the circuit court of Cook county, against the city of Chicago, to recover three-fourths of the value of a quantity of cement alleged to have been destroyed in consequence of a mob or riot in the city July 6, 1894. By agreement of parties, a jury was waived, and both matters of law and fact were tried by the court. The finding being for the plaintiff, judgment was rendered in its favor for $150 and costs of the suit. The city prosecutes this appeal.

The action is based upon the statute entitled ‘An act to indemnify the owners of property for damages occasioned by mobs and riots,’ in force July 1, 1887. Laws 1887, p. 237. The first section of that act provides ‘that whenever any building, or other real or personal property except property in transit, shall be destroyed or injured in consequence of any mob or riot composed of twelve or more persons, the city, or if not in the city then the county in which such property was destroyed, shall be liable to an action by or in behalf of the party whose property was thus destroyed or injured, for three-fourths of the damages sustained by reason thereof.’ Section 2 authorizes the bringing of a suit in any appropriate form of action, and provides that ‘whenever any final judgment shall be secured against any such city or county in any such action, the same shall be paid in due course, as in case of other judgments.’ By section 3 no recovery can be had if the loss is the result of the carelessness, neglect, or wrongful act of the plaintiff, nor unlesssuch party shall have used all reasonable diligence to prevent the loss. Section 4 preserves the right of action against the parties engaged in the mob or riot, or in any manner participating in the same, and gives the city or county paying the damages a lien upon any judgment so obtained against such individual. Section 5 gives the city or county an action over against any person or persons engaged or in any manner participating in the mob or riot. By section 6 no action shall be maintained under the act unless notice of the claim shall have been given within 30 days, and the action brought within 12 months after the loss or damage occurred.

Plaintiff, by its declaration, alleged all the facts made necessary by these several sections to entitle it to recover. The trial was upon a stipulation of facts between the parties, by which the defendant agreed that all the facts alleged in the declaration were true, and the plaintiff, on its part, admitted that at the time of the destruction of the property the city was indebted beyond the constitutional limit of 5 per centum on the value of its taxable property, and could lawfully obtain no funds for employing more firemen or policemen, or which could be expended for the purpose of protecting the plaintiff's property; that the funds which it had or could obtain were expended for the necessary running expenses of the city government, including the maintenance of the police and fire departments; also that, at the time of the destruction of the property, marshals appointed by the circuit court of the United States, and soldiers of the regular army and state militia, were present, engaged in protecting all public and private property within the city; that the city has now, and had at the time of the destruction of said property, no funds which, under the constitution and laws of the state, can be used to pay a judgment in the action, if one should be rendered against it.

The only question at issue upon the trial was the constitutionality of the statute declared upon, and the court, in its rulings upon propositions of law submitted by counsel for the respective parties, decided in favor of the validity of the act. The correctness of that ruling is the only point presented for our decision.

Statutes similar to ours have been in force in England, as well as in several of the states in this country, for many years, and have uniformly been upheld by the courts. The constitutional right of legislatures to enact such laws, under our form of government, has been frequently challenged in courts of last resort, and our attention is called to no case denying that authority. The principle upon which these laws are held to be within the general scope of legislative power is stated in Allegheny Co. v. Gibson, 90 Pa. St. 397, as follows: Speaking of the course of the ancient English law of the subject, it is said: ‘Formerly, as we have seen, a person robbed had his remedy against any inhabitant of the hundred; that is to say, the inhabitants were jointly and severally liable. Then the law was so changed that damages recovered against an individual could be assessed against all the inhabitants, so as to compel contribution. Afterwards it was still further modified so as to give the right of action against the hundred. The principle upon which this legislation rested was that every political subdivision of the state should be responsible for the public peace and the preservation of private property, and that this end could be best subserved by making each individual member of the community surety for the good behavior of his neighbor and for that of each stranger temporarily sojourning among them. The effect was to make each citizen a detective, and on the alert to prevent, as well as to detect and punish, crime. * * * It was evidently a police regulation, based upon grounds of public policy, and in force without regard to the hardships of particular cases.’ And referring to the Pennsylvania act, which is very similar to that under consideration, it is further said: ‘Our act of 1841 is also a police regulation, and rests upon like grounds of public policy. Under our political system, the state grants a portion of its sovereignty to certain municipalities. It clothes them with certain of its powers, and exacts from them, in return, the performance of certain duties. Among the powers granted is that of maintaining a police force. Among the duties exacted is that of preserving the public peace. There is an implied contract between the state and every municipality upon which it bestows a portion of its sovereignty that such municipality shall preserve the public peace and maintain good order within its borders. The state lends its aid when the local authorities are overborne and a call for assistance is made in the manner pointed out by law. But it is entirely within the power of the sovereign to make such communities responsible for the preservation of order. The privileges conferred must be taken with such burdens as the lawmaking power chooses to annex thereto.’

In Darlington v. City of New York, 31 N. Y. 164, the court of appeals, having under consideration the statute of that state, passed in 1855, making counties and cities liable for property destroyed in consequence of mobs, said: ‘It cannot be doubted but that the general purposes of the law are within the scope of legislative authority. The legislature has plenary power in respect to all subjects of civil government which they are not prohibited from exercising by the constitution of the United States or by some provision or arrangement of the constitution of this state. This act proposes to subject the people of the several local divisions of the state, consisting of counties and cities, to the payment of damages to property in consequence of any riot or mob within the county or city. The policy upon which the act is framed may be supposed to be to make good at the public expense the losses of those who may be so unfortunate as, without their own fault, to be injured in their property by acts of lawless violence of a particular kind which it is the general duty of the government to prevent; and further, and principally, we may suppose, to make it the interest of every person liable to contribute to the public expense to discourage lawlessness and violence, and maintain the empire of the laws established to preserve public quiet and social order. These ends are plainly within the purposes of civil government, and, indeed, it is to maintain them that governments are instituted, and the means provided by this act seem to be reasonably adapted to the purposes in view.’

Except that of the state of Maryland, all of the statutes of this character, so far as we can ascertain, like our own, fix the liability of the municipality without reference to its ability or exercise of diligence ot prevent the destruction, and that feature has not been considered, by any of the courts passing upon the question, as an objection to their validity. In Allegheny Co. v. Gibson, supra, it was said: ‘It may seem a harsh rule to hold a community responsible for the effects of mob violence, which, apparently, at least, they had no power to prevent, yet not more so than to hold every inhabitant of the English hundred liable for a robbery of which he knew nothing and had no means of arresting. In both cases, it is a police regulation. It is based upon the theory that, with proper vigilance, the act might and ought to have been prevented.’ The following authorities either directly pass upon and sustain like statutes, or recognize their validity and give force to them: 2 Dill. Mun. Corp. § 959; Davidson v. City of New York, 27 How. Prac. 342;Luke v. City of Brooklyn, 43 Barb. 54; In re Pennsylvania Hall, 5 Pa. St. 204; Underhill v. City of Manchester, 45 N. H. 214;Williams v. City of New Orleans, 23 La. Ann. 507;Chadbourne v. Town of Newcastle, 48 N. H. 196; City of Atchison...