Edelen v. Hogsett

• Decision Date: 26 November 1969
• Docket Number: No. 41457,41457
• Citation: 254 N.E.2d 435,44 Ill.2d 215
• Parties: James D. EDELEN et al., Appellants, v. Gary W. HOGSETT et al. (State of Illinois, Appellee.)
• Court: Illinois Supreme Court

Page 435

254 N.E.2d 435

44 Ill.2d 215

James D. EDELEN et al., Appellants, v. Gary W. HOGSETT et al. (State of Illinois, Appellee.)

No. 41457.

Supreme Court of Illinois.

Nov. 26, 1969.

Rehearing Denied Jan. 28, 1970.

John D. Hayes, Chicago, and Peter J. Collins, Waukegan, for appellants.

William J. Scott, Atty. Gen., Chicago (Francis T. Crowe and M. Brooks Byus, Asst. Attys. Gen., of counsel), for appellee.

CULBERTSON, Justice.

Appellants, plaintiffs below, filed an action in the circuit court of Lake County seeking damages for personal injuries alleged to have been sustained by them as a result of a one-car automobile accident occurring on April 6, 1966, at the intersection of State Aid Highway No. 42, commonly known as Sheridan Road, and Broadway Avenue, in the City of North Chicago, Illinois, when the automobile in which they were riding apparently went out of control and struck a concrete abutment. Joined as defendants were the driver of the car, the City of North Chicago, a municipal corporation, and the State of Illinois. On motion of the State filed by the Attorney General, the action was dismissed with prejudice as to the State on the ground that same was precluded by section 26 of article IV of the Illinois constitution. The trial court having entered an order finding that there was no just reason for delaying enforcement or appeal of its order of dismissal (see our Rule 304) Ill.Rev.Stat.1967, c. 110A, § 304, and constitutional questions being presented, plaintiffs have appealed directly to this court, contending that section 26 of article IV of the Illinois constitution which precludes the filing of actions against the State, deprives them of equal protection of the law and due process of law in violation of the fourteenth amendment of the constitution of the United States.

The allegations of the complaint, insofar as they are pertinent here, charged the State with having negligently maintained and controlled the highway in question, and specifically as having allowed a concrete abutment to remain beside the roadway when it knew, or in the exercise of ordinary care should have known, that such abutment constituted a traffic hazard to persons driving along and upon the highway in question.

Section 26 of article IV of the Illinois constitution provides: 'The State of Illinois shall never be made defendant in any court of law or equity.' While this language of the constitution, if construed literally, would absolutely prevent a suit against the State, this court has previously at least intimated that the State could be joined as a defendant in a lawsuit, provided it had expressed its consent thereto by affirmative action of the General Assembly. Monroe v. Collins, 393 Ill. 553, 66 N.E.2d 670; Galpin v. City of Chicago, 249 Ill. 554, 94 N.E. 961; People v. Sanitary District of Chicago, 210 Ill. 171, 71 N.E. 334; In re Petition of City of Mt. Vernon, 147 Ill. 359, 35 N.E. 533; see also 15 DePaul Law Review 340, 342--43 (Autumn-Winter 1965).

With regard to, Inter alia, tort claims, such as that sought to be brought here, the General Assembly has expressly consented to the processing and adjudication of claims against the State by the enactment of the Court of Claims Act. (Ill.Rev.Stat.1965, ch. 37, pars. 439.1--439.24). That Act, insofar as its provisions are relevant here, reads as follows:

' § 1. The Court of Claims, hereinafter called the court, is created. It shall consist of three judges, to be appointed by the Governor by and with the advice and consent of the Senate, one of whom shall be appointed chief justice.

' § 8. The court shall have jurisdiction to hear and determine the following matters:

'D. All claims against the State for damages in cases sounding in tort, in respect of which claims the claimants would be entitled to redress against the State of Illinois, at law or in chancery, if the State were suable * * * provided, that an award for damages in a case sounding in tort shall not exceed the sum of $25,000 to or for the benefit of any claimant. The defense that the State * * * is not liable for the negligence of its officers, agents, and employees in the course of their employment shall not be applicable to the hearing and determination of such claims.'

Other sections of the Act provide that final determination of the court against a claimant shall bar further claims in the court on his behalf arising out of the rejected claim (§ 17), and that within six months of the injury complained of, a claimant must file with the clerk of the court and the Attorney General pertinent data relating to the claim (§ 22--1) or be barred from further action (§ 22--2).

Appellants' argument is essentially that since this court, as a matter of judicial policy, has abolished under the common law the concept of immunity from suits sounding in tort against school districts and charitable entities (Molitor v. Kaneland Community Unit District, 18 Ill.2d 11, 163 N.E.2d 89, 86 A.L.R.2d 469; Darling v. Charleston Community Memorial Hospital, 33 Ill.2d 326, 211 N.E.2d 253, 14 A.L.R.3d 860), and has subsequently invalidated, as unconstitutional special legislation, statutes affecting the tort liability of various local governmental entities which created or caused classifications bearing no 'discernible relationship to the realities of life' (Harvey v. Clyde Park District, 32 Ill.2d 60, 67, 203 N.E.2d 573, 577; Hutchings v. Kraject, 34 Ill.2d 379, 215 N.E.2d 274; Lorton v. Brown County Community Unit School Dist., 35 Ill.2d 362, 220 N.E.2d 161; Treece v. Shawnee Community Unit School Dist., 39 Ill.2d 136, 233 N.E.2d 549), the State constitutional prohibition of suits against the State works upon appellants here a denial of the equal protection of the laws and a deprivation of due process of law under the fourteenth amendment to the Federal constitution. It is also urged that the State's legislative consent to the adjudication of tort claims against it embodied in the Court of Claims Act does not cure the alleged Federal unconstitutionality of the State constitutional prohibition. Thus it is argued that since an injured party might properly sue a county in circuit court for such county's allegedly tortious conduct in maintaining its highways (see Ill.Rev.Stat.1965, ch. 85, par. 3--102), another injured party similarly injured on a State highway must be given the right to sue the State in circuit court for its similar allegedly tortious conduct. Were it not for the existence of the Court of Claims Act, appellants' argument might be of some substance, but the existence of that legislation, modifying the State's immunity from suit, and the failure of the appellants to seek remedy thereunder in our judgment renders their constitutional argument inappropriate and not cognizable by this court in the posture in which it is here presented. Such being the case we, of course, express no opinion concerning the substantive merits of most of appellants' contentions.

As we have heretofore pointed out, appellants filed this action in the circuit court, and insofar as is disclosed by the allegations in the complaint, made no effort whatsoever to seek remedy against the State in the Court of Claims. Under such circumstances, it cannot be said that they are persons aggrieved by the prohibition of suits against the State embodied in the Illinois constitution as modified by the establishment of the Court of Claims. While the State does not expressly challenge the appellants' right to have the Federal constitutionality of section 26 of article IV of the...