229 Ill. 128 | Ill. | 1907
delivered the opinion of the court:
We understand appellants to contend that the demurrer was special, and that the right of the parties to join as plaintiffs was not one of the special grounds of demurrer. The first part of the demurrer was in the usual form of a general demurrer, and concludes by praying judgment that plaintiffs be barred from maintaining their action. Following that are fourteen causes of demurrer. None of them go to the form of the declaration, and while none of the special causes assigned say, in so many words, that there was a misjoinder of parties plaintiff, they all relate to the right of the plaintiffs to maintain the action, and some of them question the right of the board of directors to maintain any action under the contract set out in the declaration. We think the demurrer properly raised the question of the right of the board of school directors to maintain the action or to join with the city of Galena as a co-plaintiff. The judgment of the Appellate Court, as shown by the opinion of that court, was based upon the proposition that appellants were improperly joined as co-plaintiffs in the suit and that this question was properly raised by the demurrer. The averment of the declaration as to title is, that the building was owned by the city of Galena but was controlled and managed by the school directors of district No. 120. It would seem, under that averment, that there is no room for argument as to the impropriety of joining both parties as co-plaintiffs, and this question is properly raised by demurrer. 1 Chitty’s Pl. 66; 1 Tidd’s Pr. 694.
The principal portions of the very able briefs and arguments of counsel on both sides are devoted to the proposition whether the city of Galena has a right of action against the water company, under the circumstances set out in the declaration, for the destruction of property belonging to it, and we are earnestly asked to pass upon that question. It is conceded that, by the great weight of''authority in this country, where a city contracts with a private party or corporation to construct and operate water-works for the purpose of furnishing water to the city and its citizens, a property owner cannot hold the city or water company liable for loss by fire occasioned by the failure of the water company ° to furnish an adequate supply of water for fire protection. This question has never been passed upon by this court but it has been before the highest judicial tribunals of a large number of other States in this country, and in all of them, except three, the rule above stated has been announced and adhered to. Kentucky, North Carolina and Florida are the States holding a contrary view. Only one State, California, (Town of Ukiah City v. Ukiah Water and Improvement Co. 64 L. R. A. 233,) has passed upon the right of a city to maintain an action against a private party or corporation with whom it has contracted for the construction and operation of water-works for the city and its inhabitants, to recover of the water company for a destruction of the city’s property caused by a failure of the water company to furnish a sufficient supply of water. For these reasons we are requested by counsel on both sides to pass upon the question of the city’s right of action. We do not consider that question properly before us, for in our view of the case the judgment of the Appellate Court must be affirmed no matter what conclusion we might reach as to whether the city, if it had sued alone, would havé had a right of recovery under the averments of the declaration. However desirable it may be to the parties interested in this suit, or to the public, that this question should be settled by this court, it cannot be done in any proper way until presented in such manner that its determination is necessarily involved in a decision of the case before us. This court’s time is too fully occupied in the determination of questions necessary to the decision of cases before it to give time to the investigation and discussion of questions which are not involved in a decision of a pending case; and especially so where the determination of such questions, no matter what we might hold the law to be thereon, could not be of any advantage or benefit to the parties in the particular case before us.
For the reasons indicated we are of opinion the judgment of the Appellate Court was right, and said judgment is affirmed. r , , Judgment affirmed.
