Kinnare v. City of Chicago

• Decision Date: 14 February 1898
• Parties: KINNARE v. CITY OF CHICAGO et al.
• Court: Illinois Supreme Court

171 Ill. 332

49 N.E. 536

KINNARE

v.CITY OF CHICAGO et al.

Supreme Court of Illinois.

Feb. 14, 1898.

Appeal from appellate court, First district.

Action by Frank T. Kinnare, administrator, against the city of Chicago and the board of education of Chicago. A judgment sustaining a demurrer to the complaint was affirmed by the appellate court (70 Ill. App. 106), and plaintiff appeals. Affirmed.

James Maher, for appellant.

Donald L. Morrill, for appellees.

BOGGS, J.

The superior court of Cook county ruled that a declaration filed by the appellant administrator against the appellees, the city of Chicago and the board of education of the city of Chicago, alleging that the intestate of said administrator, while engaged as a workman in the construction of the roof of a school building which was being erected in said city by the board of education and the city, came to his death by reason of the negligence of the defendant corporations in failing to provide proper safe-guard, railing, scaffolding, etc., for the use of the said workman, was obnoxious to a demurrer. The correctness of such ruling is the sole question presented by this record. We may first devote our attention to the question whether the demurrer was properly sustained as to the board of education. Section 1 of article 8 of the constitution of 1870 is as follows: ‘The general assembly shall provide a thorough and efficient system of free schools, whereby all children of this state may receive a good common school education.’ The general assembly, in view of this declared policy of the constitution, deemed it expedient, in the distribution of the powers of the state government, to provide for the creation of boards of education, and to delegate to such boards the necessary power, and charge them with the duty to carry the constitutional mandate into execution. Appropriate legislation to that end was enacted, which, so far as need be here considered, is embraced in paragraphs 173 to 184, both inclusive, of chapter 122, entitled ‘Schools.’ Hurd's St. 1897. Paragraph 173, as far as it is necessary to be set out for the purposes of this case, is as follows: ‘In cities having a population exceeding one hundred thousand inhabitants, from and after this act shall take effect, the board of education shall consist of twenty-one members, to be appointed by the mayor, by and with the advice and consent of the common council, seven of whom shall be appointed for the term of one year, seven for the term of two years and seven for the term of three years.’ Paragraphs 174, 175, and 176 relate to the qualification of the members of the board, the organization thereof, and its duty to keep a record of its proceedings. Paragraph 177 is as follows: ‘The said board of education shall have charge and control of the public schools in such cities, and shall have power, with the concurrence of the city council: First, to erect or purchase buildings suitable for school houses, and keep the same in repair; second, to buy or lease sites for school houses, with the necessary grounds; third, to issue bonds for the purpose of building, furnishing and repairing school houses, for purchasing sites for the same, and to provide for the payment of said bonds; to borrow money for school purposes upon the credit of the city.’ Paragraph 178 invests the board with various powers, among which is power to furnish the school with furniture and apparatus, to employ and dismiss teachers, prescribe the course of studies, to divide the city into school districts, to expel pupils, lease school property and loan money belonging to the school fund. Paragraph 179 commits to the board the entire superintendence of schools and control of school buildings and grounds, and imposes various duties to be discharged by the board in connection with the management of the schools. Paragraph 181 directs the title to all real estate held for the use of the schools shall be in the city in trust for school purposes, and that sales of such real estate, or any interest therein, shall be made by and at the request of the board of education. Paragraph 182 makes the city treasurer the custodian of the funds of the board. Paragraph 184 is as follows: ‘All schools in such cities shall be governed as hereinbefore stated, and no power given to the board of education shall be exercised by the city council of such city.’ It therefore appears the appellee board is a corporation or quasi corporation created nolens volens by the general law of the state to aid in the administration of the state government, and charged, as such, with duties purely governmental in character. It owns no property, and has no private corporate interests, and derives no special benefits from its corporate acts. It is simply an agency of the state, having existence for the sole purpose of performing certain duties deemed necessary to the maintenance of an ‘efficient system of free shools,’ within the particular locality in its jurisdiction. The state acts in its sovereign capacity, and does not submit its action to the judgment of courts, and is not liable for the torts or negligence of its agents, and a corporation created by the state as a mere agency for the more efficient exercise of governmental functions is likewise exempted from the obligation to respond in damages, as master, for negligent acts of its servants to the same extent as is the state itself, unless such liability is expressly provided by the statute creating such agency. Town of Waltham v. Kemper, 55 Ill. 346;Town of Odell v. Schroeder, 58 Ill. 353;Symonds v. Board, 71 Ill. 355;Wilcox v. City of Chicago, 107 Ill. 334;Elmore v. Commissioners,...