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(331 Ill. 144)
LINDSTROM et al. v. CITY OF CHICAGO.
(No. 18876.)

Supreme Court of Illinois. June 23, 1928.

1. Schools and school districts 89-School districts are not liable for torts or negligence of their agents, unless expressly provided for by statute.

School districts are created nolens volens by the general law, to aid in administration of state government, and are charged as such with duties purely governmental in character, and are therefore not liable for torts or negligence of their agents, unless such liability is expressly provided by statute.

2. Schools and school districts

89-School

district is exempt from liability for negligent acts of servants to same extent as state, in absence of statute.

State, in creating school district, acts in sovereign capacity for more efficient exercise of governmental functions resting in state, and school district is exempted from liability as master for negligent acts of its servants to same extent as is state itself, unless liability is expressly provided by statute.

3. Schools and school districts 89 Action of trespass on the case for damages does not lie against city in trust for use of schools.

An action does not lie against city in trust for use of schools in an action of trespass on the case for damages.

4. Schools and school districts

21-Chicago

board of education is not municipal corporation.

The board of education of the city of Chicago is not a municipal corporation.

5. Eminent domain 246 (4)-Statute providing for payment of expenses of property owner on dismissal of condemnation proceed. ings prescribes only right to recovery of damages (Eminent Domain Act, § 10, as amended by Laws 1897, p. 217)..

Eminent Domain Act, § 10, as amended by Laws 1897, p. 217, providing for payment of expenses of defendant on dismissal of condemnation petition, prescribes the only right to recovery of damages in an eminent domain proceeding.

6. Eminent domain 246 (2)—Board of education held authorized to abandon proceedings for condemnation at any time during its pend

ency.

Board of education, seeking to condemn property for school purposes, had right to abandon proceedings for condemnation at any time during pendency of proceedings.

7. Eminent domain ~~246(4)—Interval of 41⁄2 months between institution and dismissal of condemnation proceeding held not unreasonable as matter of law, giving rise to action for damages.

Declaration by property owner in action of trespass on the case for damages from delay in disposing of condemnation proceeding, alleging that proceeding was not dismissed until 41⁄2

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Pleadings are to be taken most strongly against the pleader.

9. Courts 219(9)-Record held not to present question whether, under constitutional provision requiring just compensation, defendant in condemnation proceeding is to be afforded right to recover damages, regardless of statute (Eminent Domain Act, § 10, as amended by Laws 1897, p. 217; Const. art. 2, § 13).

Where declaration in action by property owner for damages for delay and negligence in disposing of condemnation proceeding did not aver that any attempt was made to have damages awarded as expenses, as prescribed by Eminent Domain Act, § 10, as amended by Laws 1897, p. 217, nor state facts from which it can be determined that property is damaged, held, that it does not present question whether, under provisions of Const. art. 2, § 13, requiring just compensation for property damaged for public purpose, defendant to condemnation proceeding is to be afforded, regardless of statute, a right of action to recover damages.

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STONE, J. Appellants have appealed to this court from a judgment of the circuit court of Cook county dismissing their suit for damages against defendant in an action of trespass on the case. Appellants, having obtained leave, filed their second amended

declaration and an additional count thereto. Defendant demurred generally, and its demurrer was sustained. Appellants abided their second amended declaration and additional count, and the cause was dismissed. They have brought the appeal directly to this court, on the ground that a construction of the Constitution is involved.

The declaration complained of defendant, the city of Chicago, in trust for the use of schools, for a plea of trespass on the case. It alleges that on the 1st day of March, 1924, appellants were owners of a valuable piece

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(162 N.E.)

of vacant land in the city of Chicago adjacent to the property of the city held in trust for the use of schools and used for school purposes, having thereon a high school building known as the Nicholas Senn High School; that in February, 1924, appellants commenced the construction of a three-story brick and stone apartment building on the premises; that appellant Adolph Lindstrom, a general contractor, had charge of the construction of the building; that he applied for and received a permit from the city of Chicago for the construction of the building and caused plans to be prepared; that he expended a large sum of money for architect's fees, let a number of contracts to subcontractors for excavation work, mason and stone work, plumbing and heating, and other work in connection with the building, and paid out large sums of money to the subcontractors and became obligated to them for other large sums; that on or about the 1st day of February, 1924, appellants commenced excavation on the premises for the building, and caused concrete footings and parts of the concrete foundation of the building to be constructed; that they caused the subcontractors to cut stone for the building and perform other work; that on March 1, 1924, defendant filed a certain condemnation suit in the circuit court of Cook county, seeking to condemn said property and other property in the neighborhood for school purposes, and appellants were made parties defendant with other property owners; that on the 1st day of March, 1924, defendant caused a notice in writing to be served upon Lindstrom, notifying him to discontinue all building operations on the premises, and that any further work performed or liability incurred in connection with such building would be at his own expense and liability; that on account of the condemnation suit and notice Lindstrom immediately ceased building operations, and that appellants were prevented by defendant from proceeding with the construction of the building from March 1, 1924, until July 17, 1924, on which last date defendant dismissed the petition for condemnation; that it became and was the duty of defendant to prosecute the condemnation suit to conclusion, and to pay appellants the fair and reasonable value of their property taken or damaged by defendant, and the damages sustained by them on account of the prosecution of the condemnation suit and the interference with their building operations, or to abandon and dismiss the petition for condemnation within a reasonable time; and that by reason of its failure and refusal so to do appellants suffered damages in the sum of $5,000. The gravamen of the charge in the declaration is the wrongful delay in the abandonment of the condemnation proceedings for an unreasonable time. The concluding paragraph of the declaration states: 162 N.E.-9

"Plaintiffs further incurred expenditures for costs, attorney's fees in defense of said condemnation proceeding, dismissed by the defendant, for which expenditures they are entitled to be reimbursed by defendant according to the terms of the statute of Illinois in such case made and provided, to wit, section 10 of chapter 47 of the

Illinois Revised Statutes."

The additional count charges:

"And whereas, the defendant thereafter, on, to wit, March 1, 1924, took and damaged the said property of the plaintiffs for public use, namely, for the use of said land for school purposes, and hindered and prevented the plaintiffs from having the use, benefit, and enjoyment of the said property without just compensation to the plainmade and provided, to the damage of the plaintiffs, as required by the statute in such case tiffs in the sum of five thousand dollars ($5,000), wherefore they bring this suit."

[1-3] Appellants assign errors on the ruling of the trial court sustaining the demurrer and dismissing the cause. Appellees argue in support of their demurrer that an action does not lie against the city of Chicago, in trust for the use of schools, in an action of trespass on the case for damages. The rule adopted by this state, and generally followed throughout this country, is that corporations of the character of school districts are created nolens volens by the general law, to aid in the administration of state government, and are charged as such with duties purely governmental in character. They are therefore not liable for the torts or negligence of their agents, unless such liability is expressly provided by statute. People v. Board of Education, 325 Ill. 320, 156 N. E. 305; City of Chicago v. Jewish Consumptives Relief Society, 323 Ill. 389, 154 N. E. 117; Kinnare v. City of Chicago, 171 Ill. 332, 49 N. E. 536. The reason for this rule lies in the fact that a school district of the character here considered is created merely to aid in the administration of the state government. It owns no property, has no private corporate interests, and derives no spe cial 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 schools" within its jurisdiction. In creating such district the state acts in a sovereign capacity, for the more efficient exercise of governmental functions resting in the state, and such district is exempted from the obligation to respond in damages, as master, for the negligent acts of its servants, to the same extent as is the state itself, unless liability is expressly provided by the statute. Nagle v. Wakey, 161 Ill. 387, 43 N. E. 1079; Wilcox v. City of Chicago, 107 Ill. 334, 47 Am. Rep. 434; Town of Waltham v. Kemper, 55 Ill. 346, 8 Am. Rep. 652. In People v. Board of Education, 255 Ill. 568, 99 N. E. 659, and

Bradbury v. Vandalia Drainage District, 236 Ill. 36, 86 N. E. 163, 19 L. R. A. (N. S.) 991, 15 Ann. Cas. 904, the distinction between corporations liable for negligent or wrongful acts of their agents and those which are not is made clear. The latter, being public, involuntary, quasi corporations, which are mere political or civil divisions of the state, created by general law to aid in the general administration of the government, are not so liable, while those which are liable are so liable because they have privileges conferred upon them at their request, which are a consideration for the duties imposed. To the same effect is Johnston v. City of Chicago, 258 Ill. 494, 101 N. E. 960, 45 L. R. A. (N. S.) 1167, Ann. Cas. 1914B, 339.

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[5, 6] Appellants contend that the delay in disposing of the petition for condemnation resulted in a damage to their property, and that under section 13 of article 2 of the Constitution, which provides that private property shall not be taken or damaged for public use without just compensation, the board of education must be held liable for the damages in this case. Section 10 of the Eminent Domain Act, as amended in 1897 (Cahill's Stat. 1927, p. 1188), provides that in case the petitioner shall dismiss the petition before the entry of an order for payment of compensation for lands taken or damaged, or shall fail to make the payment of such compensation within the time named in such order, then the court or judge shall, upon application of the defendants to the petition, or either of them, make such order for payment by the petitioner of all costs, expenses and reasonable attorney's fees of the defendants paid or incurred in defense of the action as shall seem right and just and for the payment of taxable costs. The board of education had a right to abandon the proceedings for condemnation at any time during the pendency of the proceedings. Winkelman v. City of Chicago, supra; Chicago & Western Indiana R. Co. v. Guthrie, 192 Ill. 579, 61 N. E. 658; City of Chicago v. Hayward, 176 Ill. 130, 52 N. E. 26. Said section 10 prescribes the only right to the recovery of damages in an eminent domain proceeding. The declaration here does not aver that any attempt was made to have damages awarded as expenses in the condemnation proceeding. The Legislature having provided under what circumstances the city can institute condemna

tion proceedings, it was held in City of Evanston v. Knox, 241 Ill. 460, 89 N. E. 670, that, if the provisions of the statute do not properly protect property owners, the remedy is a question for the Legislature, and not for the courts.

[7, 8] The second amended declaration does not state a cause of action on the ground of negligence in the disposition of the suit. It alleges that the condemnation proceeding was instituted on March 1, that on that day notice was served on appellants to discontinue building operations, and that the cause was dismissed on July 17 following-an interval of about 4 months. While the declaration charges that this was an unreasonable lapse of time, no facts are averred which tend to show that a period of 42 months was an unreasonable time in which to dispose of the case. It is evident from the declaration that others were made parties defendant and other property was sought to be taken. For all that appears in the declaration, other defendants may have been nonresidents, requiring service by publication. It is a conceded rule that pleadings are to be taken most strongly against the pleader, and this court cannot say, as a matter of law, that in this case the lapse of 41⁄2 months was an unreasonable time in which to dispose of the conIn Winkelman v. demnation proceedings. City of Chicago, supra, the delay amounted to more than 5 years, although attempts were made by the defendants to secure disposition of the case. It was in that case urged by the city of Chicago that Winkelman could not recover, because he did not apply to the court in which the cause was pending to have it placed on the trial calendar and disposed of. This court said of that objection:

"Ordinarily we think there would be force in this objection. The defendant who stands by and makes no effort to bring his cause to trial should be considered as waiving damages caused by the delay. If he desires a speedy trial, it is his duty to advise the court of that fact."

It was held, however, that as the proof showed that the trial court had permitted the corporation counsel to assume control of the trial calendar, and he had refused to place the cause upon the trial calendar, the city was estopped to say that the defendant should have applied to the court for disposition of the case.

[9] The declaration does not show a cause of action. The additional count alleges the damaging of appellants' property for a public use. No facts are in this count stated from which it can be determined that the property is damaged. It alleges that defendant became liable under the statute in such case made and provided. As we have seen, the statute does not provide that a school district shall be held liable in an action such as is here brought. This count is merely one of conclusions. Under this condition of the rec

(162 N.E.)

ord there is not presented the question whether, under the provision of the Constitution requiring just compensation for property damaged for a public purpose, a defendant to a condemnation petition is to be afforded, regardless of the statute, a right of action to recover damages.

tion, and excavated ditches not in line of a natural water course, but across inclosed fields and across highways. The commissioners for the district constructed bridges across the ditches in the highways and in the fields traversed by such ditches, as required by law, and reconstructed or repaired the same as ne

The judgment of the circuit court is af- cessity arose, until the spring of 1926. Some firmed.

Judgment affirmed.

(330 I11. 599)

MAULDING et al. v. WILLIAMS et al. (No. 18341.)

Supreme Court of Illinois. June 23, 1928. Drains 16-Drainage district commissioners' immediate duty to replace or repair unsafe bridges held "indebtedness" to be discharged before district could be dissolved; "debt" (Farm Drainage Act, §§ 40, 402, 41; Laws 1889, p. 117, § 1).

Under Farm Drainage Act, §§ 40, 402, 41 (Cahill's Rev. St. 1927, c. 42, pars. 161-163), it was duty of drainage district commissioners to immediately replace or repair bridges over artificial drainage ditches which had been washed out or were so out of repair as to be unsafe for travel, and such obligation constituted an "indebtedness" of district, within Laws 1889, p. 117, § 1 (Cahill's Rev. St. 1927, c. 42, par. 240), requiring county court to find that no indebtedness exists before dissolution of district can be had; "debt" meaning that which is due from one person to another whether money, goods, or services; "indebtedness" being the state of being indebted.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Debt; Indebted-Indebtedness.]

Appeal from Hamilton County Court; David J. Underwood, Judge.

Proceeding by W. B. Maulding and others to dissolve the Auxier Creek Special Drainage District, opposed by J. W. Williams and others. From an order dismissing the petition, petitioners appeal. Affirmed.

T. H. Creighton, of Fairfield, and Harry
Anderson, of McLeansboro, for appellants.
W. W. Daily, State's Atty., and Hogan &
Hogan, all of McLeansboro, and Conger &
Elliott, of Carmi, for appellees.

STONE, J. This is an appeal from the order of the county court of Hamilton county dismissing appellants' petition to dissolve Auxier Creek special drainage district.

The cause was tried on a stipulation of facts. The Auxier Creek special drainage district was organized under the Farm Drainage Act in 1911. It constructed the necessary ditches throughout the district, secured right of way either by purchase or condemna

time prior to filing the petition for dissolution three of the bridges along the public highway had either washed out or had become so out of repair as to be unsafe for travel. The highway officials demanded that the district rebuild the bridges, and the drainage commissioners met with the commissioner of highways in each case and promised to rebuild the bridges washed out. In the case of two of the landowners whose lands were crossed by the ditches and for whom the commissioners had constructed bridges, one of the bridges was washed out and the other had become so unsafe that it could not be used. The property owners made demand upon the drainage commissioners for the rebuilding of these bridges and the commissioners promised to do so. Instead of so doing, however, the commissioners, as part of four-fifths of the landowners of the district, representing more than three-fourths of the land, filed the petition for a dissolution of the drainage district involved here. In addition to the above it was stipulated that there was no indebtedness of the drainage district existing at the time the petition to dissolve was filed, unless the agreement and liability of the commissioners to rebuild the bridges that were washed out could be considered an indebtedness.

Section 1 of an act to provide for the dissolution of drainage districts, in full force July 1, 1889 (Cahill's Stat. 1927, p. 1036), provides that a drainage district may under that act be dissolved by an order of the county court of the county in which the same is organized, upon a hearing on a verified petition of not less than four-fifths of the adult land- . owners who own not less than three-fourths of the lands of the district, where the court shall find "that no indebtedness of such dis

trict exists and the costs of dissolution have been advanced: Provided, the waterways and other improvements of dissolved district shall be and remain for the common use of and improvements by the land owners of said district so dissolved."

Appellants contend that the indebtedness referred to in the statute must be construed to mean a debt of money due or owing, and that it is necessary that the debt be a fixed and specified quantity. Appellees, on the other hand, contend that the word "debt" or "indebtedness" denotes that which is due from one to another, whether in money, goods, or service, and that since the commissioners were required, and could be compelled at the

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time of the filing of the petition for dissolu- the highway for the use of the traveling pubtion, to replace or repair the bridges described in the stipulation, which things they agreed to do, there was a valid subsisting indebtedness against the district and it could not be dissolved, and that, if it be held that the district could be dissolved despite these facts, the statute authorizing such dissolution is invalid as imposing upon the towns the expense of rebuilding the bridges in the highways.

The stipulation filed in the cause sets out that the petition for dissolution was signed by more than four-fifths of the landowners owning more than three-fourths of the lands in the district and that the costs of dissolution proceedings had been advanced by the petitioners; that the district was organized under the Farm Drainage Act as a special drainage district; that it acquired the right of way for the ditches of the district either by release or by condemnation; that the main ditch of the district crosses a public highway extending north and south at a point where that highway intersects the county line between Wayne and Hamilton counties; that the ditch at that point was artificial and not in a natural water course; that after the construction of that ditch the drainage district constructed a bridge in the highway over the drainage ditch, which bridge is under the joint jurisdiction of the counties of Wayne and Hamilton; that thereafter, as occasion demanded, the drainage district repaired the bridge; that the ditch washed out and widened from a width of 20 feet to a width of 65 feet, and the bridge through natural decay became in such a bad state of repair that in the spring of 1926 it was dangerous to public travel, and the commissioners of the district posted notices on each end of it, signed by a majority of the commissioners, notifying the traveling public that the bridge was condemned and not safe to be used for traffic; that the bridge from that time to the time of the hearing remained in a dangerous state of repair and is now unsafe for use by the traveling public and does not comply with the requirements of the highway department as to the character of bridge to be erected and maintained in a public highway; that on the 9th day of September, 1926, the drainage commissioners met with the superintendent of highways of Wayne county and asked him to prepare plans and specifications for another bridge, and that the superintendent of highways did make plans and specifications and presented them to the drainage commissioners at the expense of the district, and that a short time thereafter the petition involved in this case was presented to the court; that this ditch crosses a public highway running north and south, known as the Wiley Hand road, in Four Mile township, in Wayne county; that the drainage district constructed a pole bridge over the ditch in

lic, and, when the same became in a bad state of repair, replaced it with another wooden bridge, and so continued to repair it from time to time; that at the time of the filing of the petition it was in a bad state of repair and very dangerous to the traveling public; that the swinging cap had come out and the bridge was supported only by two one-inch rods; that on the 9th of September, 1926, the commissioners of the drainage district met with the commissioner of highways of that town at the site of the bridge and there promised to replace the same and asked the county superintendent of highways of Wayne county to make plans and specifications therefor, which he did, and presented them to the drainage commissioners, and they promised to construct such a bridge in accordance with the plans; that the bridge at this point is about 95 feet long at the present time; that this ditch also crosses another north and south road known as the Township Line road, which is one of the boundaries of Crouch township, in Hamilton county; that the commissioners built in the highway a bridge about 40 feet long over the ditch, and twice since that time the bridge has become in bad and dangerous state of repair and they have replaced the same with other wooden bridges; that at the time of the hearing this bridge was unsafe for public travel and did not comply with the requirements of the state highway department; that in the same township a lateral ditch known as the Shelton Creek lateral crosses the same road, and the drainage district erected a wooden bridge at that time in the highway and has replaced it as occasion demanded; that the bridge at the present time, while passable for ordinary traffic, will not support township machinery which the commissioner desires to move over the highway; that two bridges on the lands of landowners within the district were at the time of the filing of the petition in a bad state of repair, one being washed out, and that these were bridges which had been built by the drainage commissioners and repaired from time to time and they promised they would put in new bridges.

"Debt," as defined by Webster's International Dictionary and by the Century Dictionary, is:

other, whether money, goods, or services; that which one person is bound to pay to another or to perform for his benefit; a thing owed; an obligation; a liability."

"That which is due from one person to an

"Indebtedness" is the state of being indebted. This definition has also been recognized by courts of this country. New Jersey Ins. Co. v. Meeker, 37 N. J. Law, 282; Daniels v. Palmer, 41 Minn. 116, 42 N. W. 855; Gray v. Bennett, 3 Metc. (44 Mass.) 526; In re Brouillard, 20 R. I. 617, 40 A. 762; State v. Georgia

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