| Ill. | Dec 17, 1907
delivered the opinion of the court:
This was an action on the case commenced in the circuit court of Kankakee county by Harriet Evans against the city of Kankakee. The declaration contained six counts, to which a general demurrer was sustained and the case was dismissed at the cost of the plaintiff, which judgment has been affirmed by the Appellate Court for the Second District, and the plaintiff has sued out a writ of error from this court to review the judgment of the Appellate Court.
The declaration charged, in substance, that the city of Kankakee, in the month of December, 1904, was in the use and control of the first floor of a three-story building situated upon one- of the public streets of said city, except one room thereof, which was occupied as a hardware store; that the second floor of the building was occupied by a telephone exchange, where the plaintiff was employed as an operator, and that the third floor was occupied by fraternal societies; that the second and third stories of said building were reached from the street by inside stairways, and that the entire building was heated by a steam plant located in its basement, with steam pipes running from the boilers through the several floors of the building; that the first story was used by the city for city offices - and' a city calaboose, and that the city wrongfully and negligently suffered and permitted a man afflicted with small-pox to remain in said city calaboose from the nth day of December, 1904, to January 1, 1905, which city calaboose was located immediately below the room in which the plaintiff was employed, and that the city burned the clothing of said small-pox patient upon the premises, and that the air which passed through said calaboose and the smoke and fumes from the said burning clothing, laden with small-pox germs, penetrated the room where the plaintiff was employed, whereby the plaintiff became afflicted with smallpox, which necessitated her removal to a pest house, in consequence of which wrongful and negligent acts of the city the plaintiff suffered great damages, etc.
The law is well settled that the police regulations of a city are not made or enforced in the interests of the city in its private capacity but in the interests of the public, and that a city is not liable for the acts of its officers in attempting to enforce police regulations; (Board of Trustees of Town of Odell v. Schroeder, 58 Ill. 353" date_filed="1871-01-15" court="Ill." case_name="President of Odell v. Schroeder">58 Ill. 353; Culver v. City of Streator, 130 id. 238; City of Chicago v. Williams, 182 id. 135; Craig v. City of Charleston, 180 id. 154; Frazer v. City of Chicago, 186 id. 480; Tollefson v. City of Ottawa, 228 id. 134;) and police regulations, it has frequently been said, include the making and enforcement of all such laws, ordinances and regulations as pertain to the comfort, safety, health, convenience, good order and welfare of the public, and that all persons officially charged with the execution and enforcement of such police ordinances and regulations are, quoad hoc, police officers. (Culver v. City of Streator, supra.) We think it clear, therefore, that the establishment and maintenance of a city calaboose falls within the proper exercise of the police power of a city, and that a city is not liable in an action on the case for damages for the wrongful or negligent acts of its police officers or board of health in the management of a calaboose or the detention of persons confined therein, even though such persons be afflicted with small-pox and persons who work or reside near the calaboose contract said disease. In City of Chicago v. Williams, supra, the court said (p. 138) : “Where acts are done by the officers of towns and cities in their public capacity, in the discharge of duties imposed by the law for the public benefit and for the promotion and preservation of the public welfare, no private action lies unless the right to bring it is expressly conferred.”
The case of Haag v. Board of Commissioners, 60 Ind. 511" date_filed="1878-05-15" court="Ind." case_name="Haag v. Board of Comm'rs of Vanderburgh Co.">60 Ind. 511, and other kindred cases relied upon by appellant, are distinguishable from the case at bar in this: that those cases generally have relation to the corporate or private concern of cities, while here the city was engaged, through its officers, in the performance of a duty imposed by law upon it for the promotion and preservation of the public welfare, in which class of cases no private action lies unless the right to bring suit is expressly conferred.
, We are of the opinion the demurrer to the declaration was properly sustained. The judgment of the Appellate Court will therefore be affirmed.
Judgmenf Mrmed,