The Town of Waltham v. Kemper

Decision Date30 September 1870
Citation8 Am.Rep. 652,55 Ill. 346,1870 WL 6427
PartiesTHE TOWN OF WALTHAMv.JACOB KEMPER.
CourtIllinois Supreme Court

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of LaSalle county; the Hon. EDWIN S. LELAND, Judge, presiding.

The opinion states the case.

Messrs. GLOVER, COOK & CAMPBELL and Mr. M. E. HOLLISTER and Mr. A. J. GROVER, for the appellant.

Messrs. BUSHNELL & AVERY, for the appellee.

Mr. JUSTICE BREESE delivered the opinion of the Court:

Jacob Kemper complained in an action on the case, against the town of Waltham, in LaSalle county, that by reason of not keeping in repair a certain public highway in said town, which it was their duty to keep in repair, his team, and wagon loaded with goods and chattels, was unavoidably mired, he using due care, and that in extricating his team and himself from the mire and mud, he became wet and chilled, occasioning sickness, etc., and he so remained for a long time, suffering great pain, and was thereby prevented from attending to his ordinary business.

The plea was the general issue. There was a trial by jury, and a verdict for the plaintiff on which the court rendered judgment, to reverse which the town appeals.

The only question important to be considered is the liability of the town.

The case relied on by appellee to sustain the judgment, is The Town of South Ottawa v. Foster 20 Ill. 296. That case came before this court by writ of error to the circuit court of LaSalle county, and various errors were assigned, the first of which was overruling the demurrer to the declaration.

It was an action on the case, to recover damages against the town of South Ottawa for injuries resulting to a team of horses and wagon of the plaintiff, by falling off an embankment at the end of a bridge over Covel creek, in that town, on the allegation that it was the duty of the town to keep the embankment in repair, averring a neglect of that duty.

The cause was not elaborately argued, and the decision of the court, without as much examination as should have been bestowed, was based entirely on the provisions of articles 22, 23 and 24, of the township organization law of 1851, Scates' Comp. 324, which we then thought, by a fair construction of their provisions, especially those of article 22, imposed a liability on the town, which, on their failure properly to discharge, subjected the town to an action for damages. No reference or allusion was made in the argument to a difference in this respect between corporations created for their own benefit, and the inhabitants of a district invested by statute, in invitum, with particular powers, making them corporations without their consent.

It was argued in that case, that the town was a corporation, created by statute, capable of suing and being sued; that they were bound by statute to keep the public highways in repair; that they had power to levy taxes for such purpose, and for a dereliction of such duty they were liable in damages to the plaintiff. In the consideration given that case, the distinction was not drawn, which seems to have been acknowledged by some courts, between corporations, such as cities, created for their own benefit, and towns established by law as civil divisions of a county, merely, and in which the inhabitants had no agency or participation. The former are held to stand on the same ground as individuals, and have no exemptions from liability except such as may be given them by their charters. The reason for the distinction is adverted to by this court in Browning v. The City of Springfield, 17 Ill. 143, and it is this: that a municipality by voluntarily accepting a charter, impliedly contracts on their part to perform all the duties imposed on them, and they are made of perfect obligation by being clothed with all the power and authority necessary to their full performance, and, in this respect, there is no difference between such a corporation and a private corporation or individual, who had received from the sovereign power a valuable grant charged with conditions. At the common law, actions are maintainable against such, but ever since the case of Russell et al. v. The Men dwelling in the County of Devon, 2 Term R. 671, it has been held, with but a few exceptional cases, that towns or counties, though corporations, but existing as such only for the purposes of the general political government of the State, are not liable at the common law to actions for neglect of duty, and can only be made liable by statute. It was on the authority of this case, that Hedges v. The County of Madison, 1 Gilm. 567, was decided. The departure from the ruling in this case in South Ottawa v. Foster, supra, was doubtless owing to a supposed difference between the authorities of towns and their powers and duties in regard to public highways, and those of counties.

We are satisfied in this respect there is no difference, and the case of Hedges v. The County of Madison must be held to apply to towns, they being the same kind of corporations as counties, and created, in invitum, for certain political or governmental purposes, and the former having no greater power by statute over roads and bridges than the latter had.

That case holds that the duties to be performed by a county are for the benefit of the public, intimating...

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    • December 12, 1903
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