Noorman v. Dep't of Pub. Works & Bldg.

• Decision Date: 02 June 1937
• Docket Number: No. 23916.,23916.
• Citation: 366 Ill. 216,8 N.E.2d 637
• Parties: NOORMAN v. DEPARTMENT OF PUBLIC WORKS AND BUILDINGS et al.
• Court: Illinois Supreme Court

366 Ill. 216

8 N.E.2d 637

NOORMAN

v.DEPARTMENT OF PUBLIC WORKS AND BUILDINGS et al.

No. 23916.

Supreme Court of Illinois.

April 16, 1937.

Rehearing Denied June 2, 1937.

Suit by John Noorman against the Department of Public Works and Buildings and others. From an adverse decree, defendants appeal.

Reversed.Appeal from Circuit Court, Cook County; Benjamin P. Epstein, judge.

Otto Kerner, Atty. Gen., and Jerome F. Dixon, of Chicago, for appellants.

Urion, Bishop & Sladkey and Herbert F. Zornow, all of Chicago (Howard F. Bishop, of Chicago, of counsel), for appellee.

STONE, Justice.

Appellee, on October 31, 1934, filed a bill in the circuit court of Cook county to enjoin the construction and maintenance of a viaduct in Halsted street, opposite his premises. This portion of Halsted street lies in the outskirts of the city of Chicago. The viaduct extends over nineteen railroad tracks. The erection of the structure was begun about July 1, 1934. At the time the complaint was filed it was substantially completed. The bill made the Department of Public Works and Buildings, Division of Highways, Kendrick Harger (District Engineer of the Department of Public Works and Buildings, Division of Highways), the county of Cook, and Strandberg Brothers Company, a corporation, parties defendant. Later the plaintiff dismissed out of the suit the county of Cook and Strandberg Brothers Company. On the report and recommendation of the master in chancery who heard the evidence, a decree was entered in conformity with such recommendation, ordering that unless the defendants, within 180 days, agree with the plaintiff as to the amount of his damages or institute proper proceedings for the determination of such damages, then the defendant should remove the viaduct. This appeal followed.

We are met at the outset, in the consideration of this case, by the claim of the appellant the Department of Public Works and Buildings that the decree is a nullity because of the constitutional provision that the state shall never be made a defendant in any court of law or equity. That the department, as such, was sued, is clear from the record, but appellee says that the Department of Public Works and Buildings is not a part of the state; that it is but an agency of the state and is therefore subject to being sued.

Section 26 of article 4 of the Constitution declares that the State of Illinois shall never be made a defendant in any court of law or equity. Under the Civil Administrative Code of 1917 (Smith-Hurd Ill.Stats. c. 127, § 1 et seq.; Ill.Rev.Stat. 1935, c. 24a), there were created various departments of the state government including the Department of Public Works and Buildings. Smith-Hurd Ill.Stats. c. 127, §§ 2, 3; Ill.Rev.Stat.1935, c. 24a, pars. 2, 3. Section 4 (paragraph 4) provides that each department shall have an officer at its head who shall be known as the director. Section 12 (paragraph 12) provides that the Governor shall appoint such director. Powers and duties of the Department of Public Works and Buildings are contained in sections 49 to 52 (paragraphs 50 to 53) of the Civil Administrative Code. The Department of Public Works and Buildings is a governmental agency of the state. Department of Public Works and Buildings v. Ryan, 357 Ill. 150, 191 N.E. 259. In Donnersberger v. People, 293 Ill. 148, 127 N.E. 381, this court held that a suit against the Illinois-Michigan Canal Commissioners, which later became the Department of Public Works and Buildings, is a suit against the state. In People ex rel. Barrett v. People's Savings Bank & Trust Co., 362 Ill. 395, 199 N.E. 824, it was held that the Department of Public Welfare is an administrative department of the state engaged in governmental functions, and that funds deposited in a bank, in the name of that department, were funds belonging to the state. In Minear v. State Board of Agriculture, 259 Ill. 549, 102 N.E. 1082, Ann.Cas.1914B, 1290, the right to sue that board, in tort, was denied. It was held in People v. Sanitary District of Chicago, 210 Ill. 171, 71 N.E. 334, that the immunity of the state from suit cannot be waived by a state officer.

The rule is general in states having Constitutions which deny the right to sue the state, that departments of the state government come within such prohibition. Thus in Long v. Highway Commission of Iowa, 204 Iowa, 376, 213 N.W. 532, the right to sue the Highway Commission was denied. Such denial has been asserted in other states as follows: Arkansas, the Board of Charities and Correction, State v. Lovett Carnahan Co., 179 Ark. 43, 14 S.W.(2d) 233; Maryland, the Board of Trustees of the State Normal School, Williams v. Fitzhugh, 147 Md. 384, 128 A. 137; South Carolina, the State Highway Department, United States Casualty Co. v. State Highway Department, 155 S.C. 77, 151 S.E. 887;New Jersey, the State Highway Commission, Union Indemnity Co. v. State Highway Commission, 105 N.J.Law, 656, 146 A. 206; and in Florida, the State Board of Education, Hampton v. Board of Education, 90 Fla. 88, 105 So. 323, 42 A.L.R. 1456.

Counsel for appellee have cited cases which they urge are authority for holding that the Department of Public Works and Buildings, as such, may be made a party defendant in a proceeding of this character. One of such cases is Joos v. Illinois National Guard, 257 Ill. 138, 100 N.E. 505,43 L.R.A. (N.S.) 1214, Ann.Cas.1914A, 862. This was a suit brought not only against the National Guard but against the officers of the National Guard. A reading of this opinion will disclose that the action was sustained against the officers of the National Guard. It was there held that while the establishment of a rifle range and the practice of target shooting is a lawful exercise of power, yet when it is conducted so as to be a menace to the life of the citizen, the officers of the National Guard become trespassers and are not representatives of the state, and when they exceed their authority by wrongful acts they should be, and are, answerable to the injured party in the courts. In no case cited has a department, such as the Department of Public Works and Buildings, been made defendant in a suit.

A department of state government is commonly known as a part, or division, of the government. This is recognized by both state and federal courts. As was said by the Supreme Court of the United States in Russell Motor Car Co. v. United States, 261 U.S. 514, 43 S.Ct. 428, 431, 67 L.Ed. 778: ‘Executive power, in the main, must of necessity be exercised by the President through the various departments. These departments constitute his peculiar and intimate agencies.’

Counsel for appellee say that this court has held that the Department of Public Works and Buildings is not a part of the state but merely an agency of the state government. They cite Department of Public Works and Buildings v. Ryan, supra, where this court held that right of eminent domain by a department of the government, as distinguished from the state sovereignty, can only be exercised when such grant is specifically conferred by legislative enactment, and then only in the manner, and to the extent, so authorized. This was held also in Department of...