*1 I For this reason 408, 413, 1103, 1105.) Ct. Ed. 2d S. court, and de- of the appellate the judgment would affirm doctrine. under the overbreadth clare the statute void dissent. in this joins JUSTICE SIMON (No. 57183.
THE SHELBYVILLE, CITY OF Appellant, SHELBY
VILLE RESTORIUM, INC., Appellee. 17, 1983.
Opinion June filed *2 Dove, for Franklin E. of Shelbyville, appellant. Turner, (James Craven, William L. of C. of Shelbyville counsel), for Springfield, appellee. the the court:
JUSTICE SIMON delivered opinion defendant, Restorium, Inc., In this appeal by Shelbyville builder, a home are to decide the we asked whether statute of limitations raised a defense to an action may be as an order seeking damages and municipality money compel the to construct certain streets in a ling defendant subdivi it sion. The circuit court of ruled that could Shelby County action; court, the in a Rule 23 appellate and dismissed 2d R. im (87 23), order Ill. held was municipality mune from the defense and remanded the cause for trial 3d (106 1164). Ill. App. to enforce brought
The this action city it passed and recover under an ordinance which damages subdivision plat in 1967 at time it defendant’s approved The complaint, to the city. and annexed the subdivision as a required in that the 1967 ordinance alleged filed streets should con- condition of annexation that certain be in the and that the should bear city structed subdivision them, that the ordi- expense constructing none of the has failed to effect, in that defendant nance remains that those question, construct streets many not meet the has constructed did streets which defendant ordinance, and that set forth specifications or the streets at ex- repaired great constructed eventually The first three counts dam- sought money to itself. pense or projected for which the incurred ages expenditures omissions, while it would incur in defendant’s remedying an defendant to sought requiring counts IV and V order had not already construct certain streets on which work unsold the sale defendant begun any and enjoining com- lots in the until such construction was subdivision the com- filed a motion to dismiss pleted. defendant it of action and did not state a cause plaint, asserting also of the statute of limitations. The cir- bar invoking contention; cuit court the latter the appel- addressed only court, late addressed reversing remanding, similarly the claim of limitations. The re- involving statute only versal on rule that the stat- grounded was the common law ute of limitations not be asserted the State or may against its actions municipal plaintiffs subdivisions county ex rel. involving rights” (People City Chicago “public Commercial Union Fire Insurance Co.
332) rights and the court’s conclusion that appellate *3 were of a vindicated sought by be character. Illinois has argues expressly Defendant that because both deci sovereign by disavowed the concept immunity (Molitor Community sion of this court v. Kaneland Unit its 1970 District No. Ill. 2d and in Con (1959), 11) 18 1970, XIII, 4), stitution sec. common (Ill. Const. art. limitations no periods may law from exemption statutory of this State even invoked longer by municipalities be is are involved. Defendant’s rights position where public from limitations is a periods that governmental immunity kinds of be immunity both species sovereign immunity, effect, origin royal prerog in their and ing vestiges, the King the maxim that could ative which derived from 390, Bird 410 Ill. (1951), no re Estate (In do wrong. 128, Defendant ar 397; 131.) 378 Ill. (1941), Clare v. Bell for this court to hold that that it would be anomalous gues the former doctrine is still the law the abolition of despite its twin.
While from and sovereign govern immunity liability mental from statutes of limitation shared a philo and sophical origin have the similar effect of a creating citizen, for the over the preference sovereign we ordinary do not that believe the abolition of the first of these doc trines At requires abandonment of the second. common law from the sovereign immunity derived idea that, was the King source of all rights privileges as a against asserted a citizen consequence, any right was an assertion of the source of King rights against con rights King and could not be entertained unless sented to the The act of consent the government suit. was as a creation of the on which suit interpreted right came, was based, and therefore even in this be country, viewed as a condition to the suit. precedent (11 Haisbury’s Laws of v. (4th 1976); ed. see Feres England, par. 71 S. United States 340 U.S. 95 L. Ed. 153; Ct. Kawananakoa v. 205 U.S. Polyblank (1907), 51 L. Ed. 27 S. 526.) sovereign Ct. doctrine suit, manner, went from while in this justified under the but maxim of “the slightly misleading popular King wrong” (“Rex can do no non potest peceare”), which it was but to conclude slight jump logic King could not commit mistakes such as laches either 84, 88; Piatt v. United (County Goodell 697 F.2d States Central Inc. Cir. Soya, (7th 1982), 166). This conclusion also entered our common law form “time of the maxim on relies here: does not occurrit (“nullum tempus run against King” regi”). doc-
American courts in this have viewed both century *4 trines the public purse as embodying policy protecting notions of sover- rather than as perpetuating philosophical However, their evolution and to err. eign power incapacity
461 not in this was regard parallel. suit, from one com
In discussing sovereign immunity doctrine best viewed as mentator that the was observed state and federal govern “the of the preventing subjection *** ments to interference with the performance serious their respective their functions and with their control over instrumentalities, funds, (Block, and Suits property.” Against Sovereign Immunity Government Officers Doctrine, 1060, 59 Harv. L. Rev. Taken at its (1946).) word, cases, it continued to as was most doctrine all suits from forward prevent against sovereign going consent, at sovereign’s absence least in the own v. (see courts Nevada Hall 440 U.S. 59 L. (1979), 416, 425, Ed. 99 S. Ct. of the 1188), regardless pur in which the was pose activity sovereign engaging it consent, when incurred the even alleged liability. where often See was construed. explicit, narrowly Jaffee United cert. denied (3d 1981), States Cir. F.2d 845, 102 456 U.S. 72 L. Ed. 2d S. Ct. 2234. this court’s to sovereign While decision discard immu was motivated at least in a distaste for the in nity part by of the doctrine and its to flexibility rules of inamenability (Molitor reason v. Kaneland Community Unit District No. 11, 16, 18 Ill. 2d 18), inflexibility continued on consent to suit courts ad placed emphasis the inevitable result of hering sovereign was viewing govern the doctrine as necessary preserve ment’s instrumentalities from control over its officers and external interference. contrast, the doctrine of
By although as a statutes of limitation in England royal pre- “developed rogative, it is in modem law the policy judg- supported ment of the negli- should not suffer because gence of its as- failing officers and agents” promptly sert causes of action to the ex belong public. (State rel. Board Lands v. Andrus University (8th & School
462
Cir. 1982), 671
271,
F.2d
274, rev’d on other
sub
grounds
nom. Block v. North Dakota ex rel. Board University &
of
School Lands (1983),
U.S __,
840,
461
L.
75
Ed. 2d
1811;
103 S. Ct.
see also Guaranty Trust Co. v. United
States
304
(1938),
126, 132,
1224,
U.S.
82 L.
Ed.
58 S.
785, 788-89;
Ct.
United States v.
(7th
Central
Inc.
Cir.
Soya,
1982),
165, 166;
697 F.2d
34 Am. Jur. Limitation Actions
of
secs.
388 through
particularly
(1941).)
at page
In accord
rationale,
with the
in Illinois has been
practice
to determine whether the right which the plaintiff govern
mental unit seeks to assert is in fact a
to the
right belonging
general
whether it
to the
public,
belongs
government
only
or to some small and distinct
of the
at
subsection
public
See,
large.
Winakor v.
409 Ill.
e.g.,
(1951),
Annunzio
249 (belated
change
variable contribution rate by Depart
ment of Labor
it
permitted because was
aid
public
purpose
v. Bell
relieving unemployment);
(1941),
Clare
378 Ill.
on
(action
delinquent
130-31
to collect penalties
taxes
property
allowed
because
proceed, apparently
right to collect them was
ex rel.
“public”); People
City of
v.
Co.
Chicago
Commercial Union Fire Insurance
The question of who would be benefited govern- ment’s action and who lose would its inaction is of para- mount importance cases, statute-of-limitations immunity while it is not central to the modem rationale underlying sovereign and is immunity not even asked majority of cases involving that doctrine. The of the two purpose doctrines, as we them, understand is different: the former government when the rights is designed preserve public the lat- behalf, them while is slow to assert on the public’s as en- ter bodies autonomy is used to promote for their actions. tities them from by insulating liability not ei- doctrines, are and we do They separate interpret XIII, ther article section of the 1970 Constitution or bur decision in of governmental Molitor as abolition requiring statutes limitation. this court of seeming equation by sovereign limitations in dictum in In re Estate Bird *6 390, (1951), furnishes no for the authority result which defendant as that case did not urges, require or on a of the doctrines as the instant depend comparison case does. Nor are of we convinced that abandonment gov ernment from statutes of limitation would be wise. Inasmuch as citizens who share a public right has been violated be unable in certain cases to may bring suit on their own behalf the while has a government repre sentative interest controversy (Clement Chicago Park (1983), 26; District 96 Ill. 2d see Harris Trust & Savings Bank v. Duggan (1983), 95 Ill. 2d 524-25 (in dividual residents of neighborhood standing lacked to sue for landmark designation building)), of abolition of the gov ernment’s from limitations defenses would ex pose these citizens to the harsh of consequences neglect by officials over whose actions had no control. de they Long the lays by government suit, course, of cause instituting harm to the defendant are in the one; and interest no however, arewe to a well-established rule unwilling change of law so as to leave citizens who have suffered an injury remediless or make them wait until the next election for their “remedy.”
Defendant next that of whether we argues regardless adhere to the rule that are immune from municipalities limitations defenses in the asserting rights, public city is not a Shelbyville asserting right such and thus must be 464 on bringing argument
barred from suit. This is based City Chicago v. Dunham & Co. Towing Wrecking 29, in a Ill. which this court decided that an action by city for seeking damages bridge loss of which constituted of a street an part attempt was to vindicate public “pri- vate” and was the of limita- rights only barred statute was as interest having tions. viewed an public only the the ability street, distinguished its to use abil- of the maintain ity working it in order.
We with advanced defend disagree position ant. It is who all have apparent safety persons occasion use the streets at here on the depend issue will workmanlike and maintenance these construction streets. it is continuing Insofar as of cit responsibility ies to for ensure such construction maintenance 9 — 1—1 (Ill. par. use of the Rev. Stat. ch. enforce its seq.), inability et or the defend compel payment by annexation agreement its impair ability ant will finances city’s may affect maintenance of construction or to build oversee in the future. Greenwood jurisdiction within See streets its Ill. (municipality’s v. Town LaSalle because to collect local taxes ruled “public” right property the public, the “taxes levied for in which bemay purposes *7 interested, or ‘constructing are such as generally, directly the roads, town”). or within repairing bridges causeways’ the This, believe, city’s is sufficient to inter- we render in this we acknowl- “public.” est lawsuit While bringing holds to the we be- contrary, that Dunham edge Towing to later authority regard lieve that it is consistent with as in the interest of being such of civic initiative exercises Chicago ex rel. (See People City the general public. Ill. Fire Co. Insurance Commercial Union to report local (action compel 332-33 to insurance company go tax to for- for of a license allowed receipts purposes tax, the ward; funding the court found purpose fireman’s pension of the fire and a civic department city’s fire de the maintenance a fund, was because “public” to granted of the police power was an exercise partment health ensuring public safety, cities for the purpose 128, 131 Bell and Clare v. welfare); cf. taxes held to be (action public to collect county property our involved”).) because “the revenues are Similarly, public for recovery view in this case is that a cause of action should for streets which damages building maintaining defendant is have been in a manner proper built to its defendant, “public” by failing perform because has necessitated alleged obligation, expenditure for that overrule Dunham public revenues We purpose. otherwise, to the extent that it holds for we Towing regard the distinction that decision to draw ti between attempted tle to the and claims for for public ways compensation damage done to them as unrealistic and technical. overly
We find the defendant’s unpersuasive suggestion because the maintenance of streets was held be a func tion not State Ill. subject (9 this sovereign immunity Cities, L. & Prac. Municipal Corpora and Other Villages, tions sec. at 43 have (1954) (“[m]unicipal corporations no right to obstructions in their streets which will in place terfere with the and usual use thereof ordinary in damages to respond are liable traveling they public, care, ordinary the exercise of while in to a person injured, dangerous of their negligence permitting in consequence it should be streets”)), to remain on the public obstructions immu limitations for held similarly “private” purposes the differences between discussed already We have nity. re feel no compulsion immunity. two kinds of We streets of the construction and maintenance gard sim purposes for statute-of-limitations matter “private” its negli in tort for be liable because the would ply logic find any do we in connection therewith. Nor gence as “public” action city’s allowing designation *8 “private” by origin to be controlled city’s rights in a contract or local ordinance ex rel. private (People City v. Commercial Union Fire Insurance Co. Chicago of (1926), the fact of the re 332) part Ill. that by lief is in the form of hold that the in sought damages. We terest of the in the construction of in streets the defendant’s subdivision in a workmanlike manner and under the terms payment allegedly agreed nature, is in upon and we affirm appellate court’s decision in this regard.
Defendant argued the circuit and alternatively appel late courts that the should have dismissed complaint been for failure state a cause action inasmuch as the pro viso in the annexation which agreement purportedly obli defendant to for the streets cannot gated pay be found record or ordinance itself. This was of argument court, not addressed the trial dismissed necessity the action time-barred, and it was not addressed either, court even it remanded the appellate though cause. motion, defendant on the Although requests us pass court to do this on occasion although appellate appears in cases as this such Lundstrom v. News (e.g., Winnebago Inc. papers, 306, 311), 2d we remand App. the cause to the circuit court with instructions to consider the motion to dismiss. remanded,
Affirmed with directions. CLARK, JUSTICE dissenting: The court has said that it did not believe that the today abolition of this State meant that sovereign immunity from statutes of governmental limitations was also abolished. The detailed delineation of the evolution what the construes as different doctrines is irrele- majority vant in view of section 4 of article XIII of the 1970 Consti- tution, which as the General Assem- provides “Except law, bly provide by in this State may sovereign immunity *9 is abolished.”
Pursuant to XIII, section of article the legislature en (I acted Public Act 77—1776 Rev. Stat. ch. ll. which
par. 801), that the State of Illinois not provides may made a defendant be or a in court party set any except forth in the Court of Claims Act Rev. Stat. ch. (Ill. 439.1 par. seq.). et the While chose to rein legislature state a more limited avenue of relief for claims the against State of Illinois in the form of the Court of Act, Claims no such action was taken concerning municipalities. we Today are the of allowing to city Shelbyville hide beneath a cloak of Constitution of 1970 eliminated and that the General Assembly chose not to provide for munici I palities. feel that the winds its majority around a way thin very analytical path while ignoring plain straightforward reading the 1970 Constitution.
The to majority attempts draw a distinction between the purpose immunization of the sovereign against stat- ute-of-limitations defenses and the purpose immunizing the sovereign from claims made it. In against my opinion, it is a distinction without merit.
The of article purpose XIII, section of the 1970 Illi nois Constitution’s abolition of sovereign was to repudiate the sovereign’s preference common law over its citizens and thereby debunk that “the myth king can do no wrong.”
It is not reasonable then to construe section 4 of article XIII as allowing that “time proposition does not run against king” remain in effect. is,
That however, the construction precisely given by majority permitting city Shelbyville bring this action event, after the years and seven after years the statute of limitations had run.
I that, believe local abolishing government’s immu- suit, nity framers of the 1970 Constitution clearly on foot- equal citizens be sovereign that intended im- defense of raise the can If the ing. legiti- is no it, there suing a citizen delay against proper Shelby- sued being a citizen mate reason why defense. the same able to raise should not be ville that of Shelbyville extended to the city has majority today is the result which refused to and the legislature not face it would to a suit the defendant subject I in this State. any private plaintiff had the been plaintiff result. an unfounded from such dissent respectfully *10 (No. 56361. MENOZZI, v. THE INDUS- P. Appellant,
JERALD et al. Services, Inc., Ap- (PTO TRIAL COMMISSION pellee). 17, 1983. June
Opinion filed