| Ill. | Jan 15, 1860
We shall, in this opinion, devote our attention to the principal question which has been argued in the case, which is, whether a municipal corporation can be sued in an action of trespass, for acts done in obedience to an order of the corporation. The law is now so well settled, that it is nowhere controverted that such corporations may be sued, in case, for tortious acts done under the instructions of such corporations. Where a corporation opens a street or a sewer, in such way as to injure my property, it becomes a tort feasor, and as such, shall respond to me in damages. But it is denied that, if the act of the corporation does a direct, instead of a consequential injury, it is liable for the wrong. We confess ourselves unable to appreciate any reason for this distinction, and we have been referred to no authority in support of it. The act complained of in this case was the opening of a street across the plaintiff’s land. The injury was direct, and the party must seek his H remedy in trespass only, either against the corporation or against its servants, or the officers of the corporation who ordered the act to be done, in their individual capacity. It was once held, that a corporation could not commit a wrong, and if a wrong was committed by the officers of a corporation, in the exercise of corporate functions, it was the act of the individuals and not of the corporation, because the charter of the corporation did not authorize it to commit a wrong, and hence it could not be guilty of one ; but this doctrine has been long since exploded, and municipal corporations have long since been held even liable to indictment for malfeasance as well as nonfeasance, as for a nuisance. If a corporation is liable for one form of tort, there is no reason why it should not be liable for a tort of another kind, simply because, by the technical forms of law, the action which must be brought to recover the damages is called by a different name.
It is now the admitted law, that trespass may be maintained against a private corporation, as a railroad, and the like. Then why not against municipal corporations? If the answer be, that they are established for governmental purposes alone, and exercise a part of the sovereign power of the State, and are instituted only for the public good, and hence they must be protected by the immunities which are thrown around larger governmental corporations, as the State itself, we see at once that the reasoning would protect them as well from incidental injuries, resulting from wrongful acts, as from direct injuries, and that they should not be sued either in trespass or case. We perceive no reason which should exempt them from one form of action, which should not equally protect them from the other. But even states and empires are held responsible for the wrongful acts committed by their governments, or by their authorized officers, in the names of their governments. They may not, it is true, be sued in courts of justice for the injuries which they commit, because of their sovereignty, but their responsibility is none the less acknowledged, and it is enforced, too, by other nations—their peers, who, or whose subjects, have sustained the injury. Governmental corporations then, from the highest to the lowest, can commit wrongful acts through their authorized agents, for which they are responsible; and the only question is, how that responsibility shall be enforced. The obvious answer is, in courts of justice, where, by the law, they can be sued. This corporation, it must be admitted, is subject to be sued, to enforce its liabilities, and it is reduced to the simple question, whether it can only be sued in particular forms of action, or rather, whether it is exempted from this particular form of action, for its liability in all other forms is not denied. We can see no reason or propriety in making this particular exception. If it had committed a lesser tort, so that the injury was indirect and consequential, it would be liable, in an action on the case, and we will not say that it is not liable for a greater wrong, producing a direct injury, for which, by the mere forms of proceeding, the party is required to seek his remedy in an action of trespass. There is no reason and no propriety in such a distinction, and the wisdom of the law cannot recognize it.
The judgment is reversed, and the cause remanded.
Judgment reversed.