Molitor v. Kaneland Community Unit District No. 302

Mr. Justice Davis, dissenting:

I dissent from the decision of the court which, in one fell swoop, severs from the body of our Illinois law the ancient and established doctrine of governmental immunity from tort liability. The rule of immunity of the people collectively charged with a governmental function was well established by 1607, the fouth year of James I. (Russell v. Men of Devon, 2 Term Rep. 671, 100 Eng. Rep. 359.) The rule of decision was adopted prior to the constitution of 1870 and was incorporated in the Revised Statutes of 1874 in its present form. It appears today as section 1 of the act adopting the common law (Ill. Rev. Stat. 1959, chap. 28, par. 1,) and provides: “That the common law of England, so far as the same is applicable and of a general nature, and all statutes or acts of the British parliament made in aid of, and to supply the defects of the common law, prior to the fourth year of James the First, excepting the second section of the sixth chapter of 43rd Elizabeth, the eighth chapter of 13th Elizabeth, and ninth chapter of 37th Henry Eighth, and which are of a general nature and not local to that kingdom, shall be the rule of decision, and shall be considered as of full force until repealed by legislative authority.” (Italics mine.)

Section 26 of article IV of the constitution of 1870 provides: “The state of Illinois shall never be made defendant in any court of law or equity.” Until this decision Illinois courts have recognized such immunity in both the State and its governmental agencies and these agencies and the legislature have relied upon such decisions.

In our present constitution we find the requirement that the General Assembly of this State shall provide a “thorough and efficient system of free schools, whereby all children of this State may receive a good common school education.” (Ill. const. of 1870, art. VIII, sec. 1.) We have said that this provision operates “as a mandate to the legislature to exercise its inherent power to carry out a primary, obligatory concept of our system of government, i.e., the children of the State are entitled to a good common-school education, in public schools, and at public expense.” People v. Deatherage, 401 Ill. 25, 30 .

In Town of Waltham v. Kemper, 55 Ill. 346 , at page 351, we stated: “We are satisfied, on principle and authority, the town of Waltham was not liable to this action at common law, and none has been given by statute.” We first applied the immunity rule to school districts in 1898 in the case of Kinnare v. City of Chicago, 171 Ill. 332 , on the ground that a school district is “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/ ” and, like the State, is exempt from tort liability to the same extent as the State itself, “unless such liability is expressly provided by the statute creating such agency.” (Italics mine.)

The court erred in its statement that the question of immunity of school districts from tort liability has not been reconsidered for over 50 years. This subject was- thoroughly considered in Leviton v. Board of Education, 374 Ill. 594 (1940); and in Lindstrom v. City of Chicago, 331 Ill. 144 (1928). In these cases, the rule was reiterated that in this State, as generally throughout the nation, school districts are not liable for the torts or negligence of their agents unless their liability is expressly provided by statute. Levitón was cited with approval on the immunity question, as recently as 1944, in Chicago City Bank and Trust Co. v. Board of Education, 386 Ill. 508, 514 .

The opinion in the case at bar asserts that “the whole doctrine of governmental immunity rests on a rotten foundation” predicated on the maxim that the “King can do no wrong.” The history of the common law in Illinois convincingly rebuts this epithetical charge. The doctrine of governmental immunity in Illinois was not founded upon a blind and unswerving application of the English common law or its maxims. Under our statute, (Ill. Rev. Stat. 1957, chap. 28, par. 1,) the rule of decision embraces more than the common law of England as it existed prior to 1606. We adopted a system of elementary rules and general judicial declarations of principles, which have continually expanded with the progress of society. (Amann v. Faidy, 415 Ill. 422, 434 ; Kreitz v. Behrensmeyer, 149 Ill. 496 .) The outstanding characteristic and the glory of our common law is its capacity for growth and adaptability. (People ex rel. Keenan v. McGuane, 13 Ill.2d 520 , 535 and 536; Bradley v. Fox, 7 Ill.2d 106 ; Nudd v. Matsoukas, 7 Ill.2d 608 .) However, sound legal doctrine need not be discarded because, in the evolutionary process of development, it may have once been justified by now anachronistic reasoning.

Neither Illinois nor any other State of the United States adopted the theory of governmental immunity from tort liability from the maxim the “King can do no wrong,” as it existed in 1606, but rather predicated such immunity on various theories of the common law adaptable to the exigencies, customs, and usages of the people of our various States, as applicable under the particular governmental practices of each State.

In Lindstrom, 331 Ill. 144 , at 147 and 148, we stated: “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 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 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 ; Wilcox v. City of Chicago, 107 id. 334; Town of Waltham v. Kemper, 55 id. 346.) ” (Italics mine.)

McQuillin, in his work on municipal corporations, has stated a justification for the rule of immunity which is widely accepted: “The doctrine * * * is based on the familiar reason that the undertaking is not to promote the private interests of the municipality as a corporate entity, but rather for the public benefit, and in the performance of such obligation the municipality is a mere public agent, either of the state or of the local community. The reason, as often expressed, is one of public policy, to protect public funds and public property. ‘Taxes are raised for certain specific governmental purposes; and if they could be diverted to the payment of damage claims, the more important work of government, which every municipality must perform regardless of its other relations, would be seriously impaired if not totally destroyed. The reason for the exemption is sound and unobjectionable. * * *’ ” 18 McQuillin, sec. 53.24. (Italics mine.)

We recognized this rationale in Leviton v. Board of Education, 374 Ill. 594 , at pages 599 and 600, and quoted directly from Elmore v. Drainage Com’rs, 135 Ill. 269 : “The nonliability of the public quasi corporation, unless liability is expressly declared, is usually placed upon these grounds: That * * * no corporate funds are provided which can, without express provision of law, be appropriated to private indemnification. Consequently, in such case, the liability is one of imperfect obligation, and no civil action lies at the suit of an individual for non-performance of the duty imposed.” This principle of the protection of public funds was likewise recognized in Thomas v. Broadlands Community Consolidated School Dist. 348 Ill. App. 567 .

Other State courts have held that school districts are not liable to pay damages since the funds in their hands have been placed there for the purposes of education only; that school districts are without power to raise money by taxation to pay damages in tort; and that to allow school funds to be used in such manner would be detrimental, and possibly even disastrous, to the public school system. Finch v. Board of Education of Toledo, 30 Ohio St. 37 ; Ford v. School District of Kendall Borough, 121 Pa. 543 , 15 Atl. 812 ; Freel v. School City of Crawfordsville, 142 Ind. 27 , 41 N.E. 312 ; Cochran v. Wilson, 287 Mo. 210 , 229 S.W. 1050 .

Such reasoning finds logical support under Illinois law. School districts are circumscribed in their power to tax. They are authorized by statute to levy certain taxes for educational and building purposes, and in event transportation is furnished, they may levy a given tax for this purpose. (Ill. Rev. Stat. 1957, chap. 122, par. 17—2.) They may issue bonds for the purpose of building or repairing school houses or purchasing or improving school sites, pursuant to the provision of article 19 of the School Code, (Ill. Rev. Stat. 1957, chap. 122, par. 19—2,) and the county clerk shall annually extend taxes against the taxable property of the district sufficient to pay the maturing principal and interest on said bonds in accordance with the certified copy of the bond resolution "on file in his office. Ill. Rev. Stat. 1957, chap. 122, par. 19—9.

School districts may also issue bonds to pay orders for wages of teachers or claims against the district,"(Ill. Rev. Stat. 1957, chap. 122, par. 19—10) ; to pay liabilities or obligations imposed on such districts resulting from a division of the assets where a new district is created from part of the original district, (Ill. Rev. Stat. 1957, chap. 122, par. 19—11.1); and to refund an existing legal bonded indebtedness, (Ill. Rev. Stat. 1957, chap. 122, par. 19—16,) and may levy taxes to pay maturing principal and interest thereon. (Ill. Rev. Stat. 1957, chap. 122, par. 19—9.) And in addition to these limitations, a school district cannot become indebted for any purpose in excess of five per cent of the value of the taxable property therein. (Const. of 1870, art. 9, par. 12.) It is elementary law that school districts can levy taxes for only those purposes authorized by the legislature. (St. Louis, Alton and Terre Haute Railroad Co. v. People ex rel. Wolf, 224 Ill. 155 ; Chicago and Alton Railroad Co. v. People ex rel. Wolff, 205 Ill. 625 .) They are without power to levy taxes to pay tort judgments, and without such authorization a tax for such purpose would violate section 9 of article IX of the State constitution which proscribes a municipal agency from levying a tax other than for a corporate purpose. Chicago City Bank and Trust Co. v. Board of Education, 386 Ill. 508 ; Leviton v. Board of Education, 374 Ill. 594 ; Dimond v. Commissioner of Highways, 366 Ill. 503 ; Berman v. Board of Education, 360 Ill. 535 .

The relationship of a school district to the State, under section 1 of article VIII of the Illinois constitution, is concisely stated in People ex rel. Taylor v. Camargo Community Consolidated School Dist. 313 Ill. 321 , at page 324: “The appellee is a public municipal corporation created by legislative authority for the purpose of exercising such part of the governmental powers of the State as the law has confided to it. It is a part of the machinery of government. Its functions are wholly public, and it is merely a local agency of the State for the exercise of those functions. The character of the functions of such municipal corporations, the extent and duration of their powers and the territory in which they shall be exercised rest entirely in the legislative discretion. The governmental powers which they may exercise and the property which they may hold and use for governmental purposes are equally within the power of the legislature. Their powers may be enlarged, diminished, modified, or revoked, their acts set aside or confirmed, at the pleasure of the legislature.”

Thus, under existing statutes, school districts have no authority to levy taxes or to issue bonds for the purpose of paying a tort judgment. The statutes which authorize the levy of a tax for transportation purposes and the issuance of bonds to pay claims were adopted when the doctrine of governmental immunity from tort liability was fully recognized by both this court and the legislature, and the suggestion of the court that such levies could be used to satisfy tort judgments is specious indeed.

If tort judgments secured against a school district are to be paid, the legislature alone must authorize their payment and provide a tax rate for the levy of funds for this purpose. Such are the teachings of section 9 of article IX of the Illinois constitution, the School Code, and all the cases heretofore cited.

The pronouncement in Moore v. Moyle, 405 Ill. 555 , and Thomas v. Broadlands Community Consolidated School Dist. 348 Ill. App. 567 , that charitable corporations and school districts are subject to tort liability, to the extent that liability insurance is available to protect the charitable trust fund and the public school fund, is consonant with existing statutes and the decisions of this court heretofore cited.

The court urges that under the legislative effort to ameliorate the burden placed on the individual under the doctrine of governmental immunity, each school district determines for itself “whether, and to what extent, it will be financially responsible for the wrongs inflicted by it.” This criticism of the judgment of the legislature, even if valid, cannot justify this court in imposing its peculiar predilection of sound legislative policy in an area clearly beyond its competence.

Since 1870, the legislature has repeatedly acted to relieve the hardship which may fall upon the individual by virtue of the doctrine of governmental immunity. Governmental agencies, including school districts, are now subject to liability under the Workmen’s Compensation and Occupational Disease Acts, (Ill. Rev. Stat. 1957, chap. 48, pars. 138.1, 172.36;) the State, under the Court of Claims Act, is liable for damages in tort up to $7,500 for the negligence of its officers, agents or employees, (Ill. Rev. Stat. 1957, chap. 37, pars. 439.1-439.24;) cities and villages have been made directly liable for injuries caused by the negligent operation of fire department vehicles, and for actionable wrong in the removal or destruction of unsafe or unsanitary buildings (Ill. Rev. Stat. 1957, chap. 24, pars. 1—13, 1—16; cities and villages, and the Chicago Park District, have also been made responsible, by way of indemnification, for the nonwilful misconduct of policemen, (Ill. Rev. Stat. 1957, chap. 24, par. 1—15.1; chap. 105, par. 333.23k;) and under the School Code, any school district which provides transportation may insure against any loss or liability which may arise from or incident to the ownership or operation of the school bus (Ill. Rev. Stat. 1957, chap. 122, par. 29—11a,) and any school districts may insure against loss or liability resulting from the negligent act of any agent, employee, teacher, officer or member of the supervisory staff thereof resulting from the wrongful act of such person in the discharge of his duties within the scope of his employment. Ill. Rev. Stat. 1957, chap. 122, par. 6—35.1.

Thus, in accord with the theme of governmental immunity, unless “liability is expressly provided by statute” as announced in Town of Waltham v. Kemper, 55 Ill. 346 , in 1870, and as reiterated in Lindstrom v. City of Chicago, 331 Ill. 144 , and the other cases heretofore cited, the limitation of the scope of the doctrine of immunity, with restricted exceptions, has been left to the discretion of the legislature.

I denounce the contention of the court that these legislative limitations on the doctrine of governmental immunity are a justification for its abolition by judicial fiat. The legislature, in restricting the scope of such immunity, is acting in its area of special competence. This court, in abolishing it, has unwisely ventured beyond the range of judicial action.

Justice Holmes, in his lectures entitled "The Common Law,” stated that “ the life of the law has not been logic, it has been experience.” Over the years, our law in connection with governmental immunity has grown and developed in accordance with the experiences, practices, customs and mores of the times. The success and life of our republic are based upon public education. The necessity for such education and the magnitude of its endeavor offer grave reasons why this court should refuse to overturn the precedent of 89 years with reference to governmental immunity. This decision cannot but be the occasion for releasing a flood of litigation and legislation in order to establish new boundaries in this area of novel liability. During this period, school districts will be harassed by doubts and difficulties which will impair their ability to conduct an efficient system of free schools. I regard as appropriate the following language of the United States Supreme Court in Helvering v. Hallock, 309 U.S. 106, 119 , 84 L. ed. 604, 612 : “We recognize that stare decisis embodies an important social policy. It represents an element of continuity in law, and is rooted in the psychologic need to satisfy reasonable expectations.”

This decision, while here applicable to school districts, by its pronouncement extends to the State and all of its governmental agencies which have heretofore been within the purview of the doctrine of governmental immunity. The various statutes which heretofore restricted this doctrine in favor of the individual appear to be overridden by the full sweep of this opinion which, without limitation, overrules all prior contrary decisions and nullifies the immunity doctrine.

If the court is consistent in its future decisions, the immunity of charitable trust funds must likewise fall. I cannot but conclude that the action of the court in striking down this long established doctrine, buttressed by statutes predicated upon its existence, is grave error. We are not writing on a clean slate; we are dealing with the law as established and developed after 89 years of growth. In Southern Pacific Co. v. Jensen, 244 U.S. 205, 221 , 61 L. ed. 1086, 1100, Mr. Justice Holmes, dissenting, stated: “I recognize without hesitation that judges do and must legislate, but they can do so only interstitially; they are confined from molar to molecular motions.” In the case at bar, the court has broken the recognized confines of judicial legislation, overruled existing precedent, and has, in effect, repealed the legislative policy and enactments of long standing.

In Federalist No. 78, Alexander Hamilton wrote that courts “must declare the sense of the law; and if they should be disposed to exercise WILL instead of JUDGMENT, the consequence would equally be the substitution of their pleasure to that of the legislative body.” I believe that the court in the case at bar has exercised its will in an area outside the scope of judicial power and has invaded the field of legislative action.

In the recent case of O’Callaghan v. Waller & Beckwith Realty Co., 15 Ill.2d 436 , we refused to declare that an exculpatory clause in a lease relating to residential property was void as against public policy. At page 441 we stated: “Other jurisdictions have dealt with this problem by legislation. (McKinney’s Consol. Laws of N.Y. Ann., Real Property Laws, sec. 234, vol. 49, part 1; Ann. Laws of Mass., vol. 6, c. 186, sec. 15.) In our opinion the subject is one that is appropriate for legislative rather than judicial action.” This opinion was adopted November 26, 1958, and rehearing was denied January 22, 1959. Thereafter the legislature promptly enacted a statute which declared such clauses in residential leases to be void as against public policy and unenforceable. Ill. Rev. Stat. 1959, chap. 80, par. 15a.

Prior to the decision in the case at bar, the governmental immunity rule in Illinois was in harmony with that of the other States of the Union in the absence of statute, except the State of New York, which adhered to the British rule of- liability for acts of the school board itself, while extending immunity to the board for the negligence of its agents or employees. (Miller v. Board of Education, 291 N.Y. 25 , 50 N.E. 2d 529 (1943); Herman v. Board of Education, 234 N.Y. 196 , 137 N.E. 24 (1922); Wahrman v. Board of Education, 187 N.Y. 331 , 80 N.E. 192 (1907); Williams v. Board of Trustees, 210 App. Div. 161 , 205 N.Y.S. 742 (1924). However, even in New York the judicial rule was reinforced by statute (N.Y. Educ. Law, secs. 2560, 3023,) while the rule of liability was established by statute in the States of California and Washington. Calif. Educ. Code Ann. sec. 1007 (Deering 1952); Wash. Rev. Code, sec. 4,08.120 (1951). Illinois is the only State in the United States in which the rule of liability against school districts has been established by court decision.

If reason existed for legislative rather than judicial action to invalidate an exculpatory clause in a lease, as against public policy, as this court held in O’Callaghan, then, beyond doubt, the same rule should have been applied by the court in its decision in this case.

The basic wisdom of leaving changes and modifications in the law pertaining to governmental immunity to the action of the legislature is well illustrated here. In the present posture of the law, governmental agencies are subject to liability and judgment in tort actions without any attendant statutory authorization to levy taxes and thereby raise revenue for such purpose. Such liability should not be imposed upon the State or its governmental agencies without exploring and considering the complicated aspects of its impact, and without authorizing a tax levy and providing a tax rate for such purpose.

The legislature, through committees, hearings, and other of its processes, can adequately inquire into the complicated circumstances attendant upon the establishment of such liability and the raising of taxes for this purpose. These essential functions of investigation and inquiry are vested in the legislative branch of our government and this court is neither practically equipped for such task, nor is it constitutionally authorized to enter upon it.

This opinion was adopted May 21, 1959, and we allowed petition for rehearing at the September, 1959, term. In the original opinion, the court made no reference to whether it would operate retroactively or prospectively. In Braxon v. Bressler, 64 Ill. 488, at 493 , we stated: “Legislation can only affect the future, but when courts vacillate and overturn their own decisions, the evils may be incalculable. They operate retrospectively, and may often disturb rights which should be regarded as certain and fixed.” Consequently, such opinion operated retroactively. Also see: Grasse v. Dealer’s Transport Co. 412 Ill. 179 ; Duke v. Olson, 240 Ill. App. 198 .

Upon rehearing, the court modified its opinion by holding that, except as to the plaintiff in the instant case, the rule of liability should apply only to cases arising out of future occurrences. The inability of the judiciary to practically cope with this problem is demonstrated by the labored efforts of the court to resolve it and the unusual doctrine which the court announced as the solution of the enigma in which it was entangled.

The other jurisdictions, which have given prospective operation to decisions overruling cases long recognized as the law, have largely predicated such result upon the opinion of Mr. Justice Cardozo in Great Northern Railway Co. v. Sunburst Oil & Refining Co. 287 U.S. 358 , 77 L. ed 360.

It was there held that the choice of whether decisions should be given prospective or retrospective application rested with the judges of the State court and that there was nothing in the United States constitution to preclude the Montana court from providing that its decisions overruling prior cases should be given prospective application only, “whenever injustice or hardship will thereby be averted.” The basis of the Sunburst doctrine was reliance upon an overruled precedent and ensuing hardship therefrom.

In this case the court recognized that “In reliance on the immunity doctrine, school districts have failed to adequately insure themselves against liability” and “have probably failed to investigate past accidents which they would have investigated had they known they might later be held responsible therefor,” and conceded that the reliance test had been met. Yet, the court included within the ambit of its opinion the action of the plaintiff, while the elements of reliance and ensuing hardship were as real and present with this defendant as with other potential defendant school districts which escaped liability by virtue of the prospective application of the court’s opinion.

The principle announced by the court is an aborted offspring of the Sunburst theory. It is without legal justification other than that the plaintiff should be rewarded for bringing the action, and it has thwarted the reasonable expectations of the well-intentioned governing body of defendant school district. While the court stated that its decision is in accord with a substantial line of authority, the cases cited, other than Dooling v. Overholser, (D.C. cir.) 243 F.2d 825 , and Barker v. St. Louis County, 340 Mo. 986 , 104 S.W.2d 371 , offer no support for the result obtained.

Eighteen pupils of defendant school district were riding on its bus on March 10, 1958, when the bus crashed into a culvert which resulted in an explosion of the gasoline tank whereby most of them were burned and injured. (Molitor v. Kaneland Community Unit Dist. 302, 20 Ill. App. 2d 555 .) When we consider that under the court’s decision.only Thomas Molitor can recover even though the other pupils were similarly injured in the same accident, the .position of the court becomes even less tenable. . .

After this opinion was announced on May 21, 1959, and in response to it, the legislature, by an overwhelming vote, adopted five bills granting tort immunity to park districts, (Ill. Rev. Stat. 1959, chap. 105, par. 12.1—1 and par. 491,) counties, (Ill. Rev. Stat. 1959, chap. 34, par. 301.1,) forest preserve districts, (Ill. Rev. Stat. 1959, chap. 57½, par. 3a,) and the Chicago Park District, (Ill. Rev. Stat. 1959, chap. 105, par. 333.2a). It also passed a bill granting limited tort immunity to school districts and nonprofit private schools. (Ill. Rev. Stat. 1959, chap. 122, pars. 821-831, incl.) These enactments became effective on divers dates in July, 1959.

In view of this legislation, the decision of the court may be of limited, significance relative to the liability of school districts in tort actions. Cf.: O’Callaghan v. Waller & Beckwith Realty Co. 15 Ill.2d 436 , and Ill. Rev. Stat. 1959, chap. 80, par. 15a; In re Estate of Day, 7 Ill.2d 348 , and Ill. Rev. Stat. 1957, chap. 3, par. 197, wherein the decisions of this court were annulled by legislative enactment; and Jencks v. United States, 353 U.S. 657 , 1 L. ed. 2d 1103, and 18 U.S.C. sec. 3500 , wherein a decision of the United States Supreme Court was nullified by an act of Congress. See: Palermo v. United States, 360 U.S. 343 , 3 L. ed. 2d 1287.

The opinion of the court fails to make any reference to the action of the General Assembly concerning the question of tort immunity. This is significant in that we have frequently held that where the legislature has changed the law pending an appeal, the case must be disposed of by the reviewing court under the law as it then exists. (Fallon v. Illinois Commerce Com. 402 Ill. 516 ; People ex rel. Hanks v. Benton, 301 Ill. 32 ; People ex rel. Askew v. Ryan, 281 Ill. 231 ; People ex rel. Law v. Dix, 280 Ill. 158 .) Thus, I believe the court erred in not reviewing this judgment in the light of the foregoing 1959 amendment to the School Code.

However, this epochal decision will be the source of much confusion and litigation. The statutes passed after the adoption of the opinion and within the last 40 days of the session, restoring the doctrine of immunity to certain municipal agencies, indicate to me that it is, and by future legislation will be, the policy of the legislature to restore governmental immunity in Illinois, subject to such modification as hearings, study and research under the legislative process may indicate desirable.

While this opinion determines the issues before the court, the problems which it has created remain and will continue to plague us until they are justly resolved.

I would affirm the trial and Appellate courts.

Mr. Justice Hershey joins in this dissent.