80 Ill. App. 531 | Ill. App. Ct. | 1899
delivered the opinion of the court.
This was an action of debt brought by the city of Marshall against the C., C., C. & St. L. Ry. Co, to recover the aggregate amount of the penalties for two hundred and seventy days’ consecutive violation of an ordinance of the city requiring a flagman to be kept at certain street crossings within the city.
The declaration recites the passage of an ordinance by the city council, in June, 1893, requiring all railway companies with tracks passing through the city to place and keep a flagman at all such street crossings where the city council should deem it necessary to the safety of the traveling public, under penalty of ten dollars per day for each day’s failure therein after sixty days’ notice of a resolution of the council designating the particular street crossings where such flagman is needed.
The declaration further recited that on the 3d of February, 1896, the city council passed a resolution designating the crossing of defendant’s railroad over Cumberland and Washington streets at places at which the defendant should station and maintain a flagman, and on the next day caused a copy of the resolution to be served on the defendant; that upon,the 16th day of August, 1896, and for every day thereafter until the 17th day of May (in all 270 days), the defendant refused and neglected to keep a .flagman at said crossing, arid that owing to such refusal an action had accrued to the city for which it brought suit to recover $2,700.
. Defendant first.,flied a.plea of the general issue, upon which issue was joined by the plaintiff. It then filed six special pleas, to which the plaintiff demurred.' The court overruled the demurrer and replications were filed. Various orders relating to the pleadings were entered and the cause' continued. At the next term of court, after a jury had been impaneled, by agreement of parties, all previous orders were set aside, the replications were withdrawn and the plaintiff elected to stand by its demurrer to the pleas; whereupon the court gave judgment against the plaintiff.. This writ of error is prosecuted to reverse that judgment. The only question for' our consideration is the sufficiency of the special pleas. It is urged in behalf of the defendant in error that the judgment of the court is right, even though it be held that all of the special pleas are bad, for the reason that the plea of the general issue is good and that the demurrer applied to it as well as the other pleas. The demurrer did not specify the particular pleas against which it was interposed, but when it was filed the similiter had been added to the general issue. It applied, therefore, to the special pleas only, and an inspection of the entire record shows that it was so considered by the court and counsel when the order was eritered allowing the withdrawal of replications and the election .of the plaintiff to stand by its demurrer.
It is also urged that, the declaration is bad and that the demurrer to the pleas should be carried back to the declaration. The court did nothing of the kind and could not carry it over the general issue and similiter thereto. Neither was it necessary for the plaintiff to except to preserve the plaintiff’s righ t to call in question, in this court, the action of the court in overruling its demurrer and entering judgment against it because the pleas are unanswered. Wiggins Ferry Co. v. The People ex rel., 101 Ill. 446; McChesney et al. v. City of Chicago, 151 Ill. 307.
The contention of the defendant in error that the judgment was entered by consent is not borne out by the record.
The first, second, third and fifth of the special pleas set up .that some time before'the earliest of the offenses charged in the declaration was committed, a suit was brought by the plaintiff against the defendant for a like breach óf the ordinance in question; that the justice of the peace who tried the case held the ordinance invalid and rendered judgment against the plaintiff for that reason, that such judgment has never been appealed from, and that by reason thereof the plaintiff is barred from prosecuting the defendant for any future violation of the ordinance.
It is plain to our minds that the decision.of a justice of the peace adverse to the validity of a city ordinance for the violation of which a suit was pending before him could have no force or effect except as to that particular suit, and the pleas were, therefore, bad.
The fourth plea sets up the recovery of a judgment before a justice of the peace for the same violations declared upon in the declaration. That plea is bad because it attempts to answer the whole declaration, when it is apparent that it does not.
The limit of the jurisdiction of a justice of the peace is $200, while the declaration charges 270 distinct violations, having that many dates, the penalties for which aggregate $2,700. To render such a plea good it would have to aver that the different violations charged • in the declaration are alione and the same violation, and for that a judgment had been recovered. A plea which professes to answer the whole declaration, but answers only a part, is bad on demurrer. 1 Chitty on Pleadings, 524; Buckmaster v. Beames, 4 Gil. 443; Gilbert v. Bone, 64 Ill. 518; George v. Bischoff, 68 Ill. 236.
The sixth special plea sets up the prosecution of four suits against the defendant before a justice of the peace for a violation of the ordinance, a decision in each case against the validity of the ordinance, the prosecution of an appeal, and an agreement, pending the appeal, made by the city attorney, that in consideration that the defendant would grade certain streets and refrain from contesting certain alleged excessive taxes, the defendant should be released from the payment of the penalties provided by the ordi-. nance and. from further prosecution for violations of it. The plea further sets up the performance of the agreement by the defendant. It is clear the city attorney would have no power to enter into such a compromise, as that alleged, without authority from the city council; and such authority is a necessary averment. But it does not appear in the plea.
"While the city council could, by agreement, release the defendant from penalty for violations already committed, an agreement not to prosecute for future violations would not be binding upon a future council. An agreement allowing a party to violate a city ordinance ad libitum and tying the hands of a future council against prosecution, is void.
The six special pleas were bad and the judgment will be reversed and the cause remanded with directions to the Circuit Court to sustain the demurrer to them. Reversed and remanded.
