The City of Chicago v. Turner

• Decision Date: 30 September 1875
• Citation: 1875 WL 8773,80 Ill. 419
• Parties: THE CITY OF CHICAGOv.JAMES TURNER.
• Court: Illinois Supreme Court

80 Ill. 419

1875 WL 8773 (Ill.)

THE CITY OF CHICAGO

v.JAMES TURNER.

Supreme Court of Illinois.

September Term, 1875.

APPEAL from the Circuit Court of Cook county; the Hon. LAMBERT TREE, Judge, presiding.

Mr. EGBERT JAMIESON, for the appellant.

Mr. T. A. MORAN, for the appellee. Mr. JUSTICE SCHOLFIELD delivered the opinion of the Court:

The declaration alleges that the plaintiff was possessed of a slaughter house, and was engaged in the business of slaughtering, and was making therein great gains; that the defendant made, with John Reid & Co., a contract, in form an ordinance, which passed the common council, in which the defendant undertook, in consideration of acts to be done and performed on the part of John Reid & Co., to grant to Reid & Co. the exclusive right to do all the slaughtering that was to be done in the city of Chicago; that no other slaughtering, except that done by Reid & Co., should be done within the city of Chicago; that the defendant undertook to use diligence in preventing slaughtering from being done at any other house; that in pursuance of such contract, the defendant, by its servants, entered upon the premises of the plaintiff, threatened and drove away his customers and broke up his business, and caused him great damage.

The questions discussed in the briefs before us may all be resolved into the single question: Do these allegations, in substance, show a cause of action?

We held, in Rumpff v. Turner, 45 Ill. 90, that this ordinance was ultra vires and void; but the plaintiff contends that the subject of the ordinance was within the general powers conferred upon the city; and, therefore, notwithstanding the ordinance was void, the city is liable for the acts of its servants done pursuant to it, and Allen v. The City of Decatur, 23 Ill. 332, The City of Pekin v. Newell, 26 Ill. 320, and Howell v. The City of Buffalo, 15 N. Y. 512, are cited to sustain the position. An examination of these cases will show that they relate to acts clearly within municipal power, but unauthorized because of some irregularity or unlawfulness in the mode of executing the power.

In Allen v. The City of Decatur, an order was made, directing the opening of a street over property which had not been condemned, nor the right of way granted to the city, and the acts of trespass were in executing this order. The city was liable, not because it had no power to open streets, but because it had not taken the proper steps essential to its doing so in this instance.

In The City of Pekin v. Newell, the gist of the decision is correctly given in the syllabus thus: “If a city is authorized to construct a highway in a particular manner, but does it in a different one, it will be answerable in damages to a party sustaining injury upon it, as much as though it had not exceeded or deviated from its authority.” So, there, also, there was no question of power, but only as to he lawfulness of its execution.

Howell v. The City of Buffalo was of precisely the same character. At the conclusion of the opinion of the majority of the court, delivered by BROWN, J., it is said: “It is hardly necessary to say that the acts out of which the plaintiff's cause of action arose were matters within the scope of the corporate powers of the city of Buffalo. The common council had power to grade and pave the street; to cause the damages done to the owners of lands to be assessed upon other lands benefited; to issue warrants to collect the money assessed. What was done was an irregular or illegal...