Hedges v. the County of Madison.

• Decision Date: 31 December 1844
• Citation: 1 Gilman 567,1844 WL 4111,6 Ill. 567
• Parties: GEORGE HEDGESv.THE COUNTY OF MADISON.
• Court: Illinois Supreme Court

1 Gilman 567

6 Ill. 567

1844 WL 4111 (Ill.)

GEORGE HEDGES

v.THE COUNTY OF MADISON.

Supreme Court of Illinois.

December Term, 1844.

ACTION ON THE CASE, brought by the plaintiff in error against the defendant in error, in the Madison circuit court, and heard before the Hon. SIDNEY BREESE, at the August term, 1840. There was a general demurrer to the declaration, which was sustained by the court, and judgment rendered thereon against the plaintiff in error for the costs of suit. The substance of the declaration is set out in the opinion of the court.

E. KEATING, for the plaintiff in error.

I. It is a general rule, that for every wrong or breach of duty, an action will lie in some form for the party injured. Minot's Dig. 15, and cases there cited; Constitution of Ills. art. 8 § 12.

II. An action will lie against a corporation, for a refusal of its officers to perform a duty required of them. Hussey v Manufacturer's and Mechanic's Bank, 10 Pick. 415; Sargent v. The Franklin Ins. Co. 8 do. 90; Riddle v. The Proprietors of Locks, etc. 7 Mass. 169.

III. It is the duty of counties to repair bridges, etc. Gale's Stat. 595.

J. GILLESPIE, and W. MARTIN, for the defendant in error:

I. The plaintiff has no cause of action against the county. The county being a corporation at common law, no suit could be sustained for private damages.

1. Because it has no fund out of which to pay the damages, and if it be collected from one of the corporators, he must

bring a multiplicity of suits to reimburse himself, which the law abhors. Bartlett v. Crozier, 17 Johns. 453.

2. That the remedy is by indictment or information alone. Ibid. 452.

3. That to make a county liable to a private individual there must be a certain, absolute, statute duty. Ibid. 451; Mower v. The Inhabitants of Leicester, 9 Mass. 247.

II. That where, by statute, a county is liable to an individual, to entitle himself to recover, he must allege all the facts, upon which the statute grounds the actions; on this principle alone the plaintiff here must fail.

1. Because there is no averment that by statute, a liability has incurred under the statute. Bartlett v. Crozier, 17 Johns. 456; Williams v. Hingham, etc. Turnpike Co. 4 Pick. 345; The People, etc. v. The Commissioners, etc. 7 Wend. 477.

2. Or, that the county had the means with which to repair the damage.

III. The statute of 1835, not having imposed the duty of repairing the bridge on the county, it is not liable to an action. Laws of 1835 §§ 7, 30.

1. Because the supervisor is by law to make the repairs.

2. That said supervisor is liable to an indictment for refusing or neglecting to repair.

3. The county has no fund, nor can it have a fund out of which to repair the bridge until the supervisor reports that the costs will be more than ten dollars, and that he has not the means.

4. Until said supervisor reports, the county has nothing to do with repairing the road, etc.

SHIELDS, J.

This was a case brought in the Madison circuit court at its August term, 1839, by George Hedges against the county of Madison.

The declaration was filed at said term, and the first count averred the following facts, to wit: that there was a certain post road and public highway within said county, leading from Alton to Edwardsville, and that there was a bridge on said road over Cahokia creek, within the bounds of Greenfield road district; that said county was, on the 31st day of December, 1838, bound by law to keep in repair the highways and public roads within the limits of said county, and cause bridges to be made when the same may be necessary, and to keep said bridges in repair; that George Hedges was the owner of a certain horse worth seventy-five dollars, and that on said 31st day of December, 1838, he was riding said horse moderately and carefully over said bridge, and by reason of the plank upon the same being without support, and put on loosely, and carelessly, and negligently, the horse fell through the bridge and was killed. The second count is the same in substance as the first, with the additional averment that the bridge was in fact apparently secure, but in fact unsafe. To this declaration there was a general demurrer, and the demurrer was sustained, and the cause continued until August, 1840, when the court gave judgment on the demurrer against the plaintiff in error for costs, which judgment is now objected to, and brought before this court for review.

The question, which is here presented for the first time, is one of consequence to the public. It is the duty of each county to keep the public roads and bridges in repair, and it is armed with what the law deems ample powers to effectuate this object through the instrumentality of its agents. If, by a failure to perform this duty, an injury accrues to a private individual, the question is, whether an action on the case will lie against the county for such neglect of duty. By “an act to incorporate counties,” approved January 3, 1827, counties are constituted a body corporate and politic, with power to make and enter into contracts, and capable of suing and being sued in relation to such contracts. The law...