*1 is information the indictment or whether the question the offense to charge or insufficient defective totally even motion in arrest review by preserved or such motion quash there been motion to has no though is void it time. If the information is not made apt error to overrule motion in review arrest, People order is one of reversal without remanding. proper Green, 242. The information wholly insufficient being charge an offense under the statute, judgments municipal courts- are and the not Appellate reversed cause will be remanded. reversed. Judgments
(No. 31913. vs. Appellee, Gaca, John Appellant.
Opinion January 24, filed 1952. *2 JJ., dissenting. and Hershey, Schaefer Counsel, Mortimer, Corporation Chicago, John J. Sydney (L. R. Karton, counsel,) Drebin, Louis for appellant. Beardsley,
Brooks & Butler, Walker Daniel all O’Rourke, A. Chicago, (Grenville Beardsley, for counsel,) appellee.
Mr. Bristow delivered the Justice court:
This the appeal, involving constitutionality of section of the Revised Cities and (Ill. Act, Rev. Villages Stat. 1-15 24, comes direct from the chap. par. 1-15,) superior court of On County. Cook March 29, 1949, appellee, Gaea, filed suit the against appellant, John the amount which represented the sum recover $2300 by him Mary of a obtained Edward against judgment reason County, by court Cook Mallory superior arrested. falsely been right of their Appellee’s having is the foregoing this action recovery predicated upon “In statutory enactment, provision being: pertinent another is case or any injury person property of a munici- caused a member of the police department over, or pality having while his member duties performance engaged contributory without policeman, negligence ** injured *, owner municipality de- whose behalf the member of the municipal police in- his duties as shall partment performing policeman recovered demnify policeman him as the result of such where the injury, injury except results from the misconduct wilful policeman.”
The of its filed amended appellant, city Chicago, motion to that the statute is un- strike, involved alleging constitutional and void because it contravenes section of article IV of constitution of the of Illinois. The trial court, to this ruling adversely claim, entered for the plaintiff the sum city of and costs. The defendant stood on its motion $2300 to strike.
The statute under consideration undertakes indemnifica- injuries tion for to or caused by property policemen, who, course of their injure employment, another. Injuries from the wilful of resulting misconduct are policemen It is excepted. contended by appellant this statute is violative of section article IV of constitution in that it constitutes a or local special law granting special and is privilege special legislation apply- to ing only Chicago.
The of section purpose 22 of article IV constitu- tion of this State, prohibiting laws and special granting the enlargement is to prevent privileges, of, or and the impairment or more persons one rights Michigan of others. the rights discrimination against, McDonough, Fire Ins. Co. v. Millers Mutual 575- have may that we brief so us from quote appellant’s Let subject: this made contentions upon their defined clearly rendered against for judgments “Indemnifying policemen has duties, their in a them engaging performance while organ- concentrations population, no relation large * * *. The fact traffic ized crime or congested some individuals are Evans- policemen Springfield affords and others are no ton, ground policemen for or indemnity to the denying Springfield policemen an indemnity Evanston granting it affords no Chicago; ground granting Springfield or an while immunity Evanston indemnity placing citizenry the financial to in- responsibility its demnify and order policemen. law within maintaining their territorial all limits, municipalities agents an State, identical performing governmental function, and all should receive the same treatment at the hands Legislature.” of law have been following principles announced
by this court, which should for us a in re- provide guide solving question. classifications is Establishing pri- marily legislative function, judicial interference is never warranted for the except purpose ascertaining whether the legislative action is clearly A unreasonable. classification will suffice as a basis for if such classification is based on a rational difference of situation or condition found to exist in the persons objects *4 which the classification rests. Before a court can interfere with the legislative in it must case, able be to say that there nois fair reason for the law which would not with require force its equal extension to other cities of smaller population which are not affected. (Hansen v. need classification legislative Ill. 536.)
Raleigh, 391 all to include be so broad comprehensive not its terms. be within brought evils which might possibly be or con scientific, the classification logical, need Nor a rea it is not and rests arbitrary sistent, provided and Investment Liberty basis. v. (Bagdonas sonable Land is not or local be 103.) Legislation special Co. Ill. where the only classification, it relates to one city cause has a reasonable relation to the based on pur population, and where the statute objects General poses that could have concluded there was Assembly reasonably a difference of situations and conditions between cities of in or more and those cities of smaller populations. Ill. People Chicago, 304. bear in mind
Furthermore, we must there is a that the General and its Assembly committees presumption did their and that they acted duty, conscientiously in mak survey of conditions ing in prevailing in the State before enacted municipalities they present legislation. Quite to the situation analogous pre sented to us on this was that involved in appeal People That Hastings, case considered which 92. required bonds as a indemnity condition to the precedent issuance of licenses to in taxicabs operate city having more than the population specified statute, namely, At 100,000. the time of the passage that statute Chicago was the only city in with a Illinois in excess This court in that figure. case noticed the judicially difference caused by density concentration of popula tion traffic conditions and situations as con trasted smaller cities, and then said “that there is much greater probability of injury persons and prop erty the streets of such cities than in the streets of smaller cities.” is the force of Compelling the language employed by this court that case, which appears applica ble to our present situation: “The act is not
151 constitution, of the the meaning within local legislation, a having to cities limited in its it is application because no there were In Illinois more. 100,000 or population 100,000 than people a of more population cities having but enacted except Chicago, was when legislation have shall hereafter any act to that city the may apply notice take 100,000 may judicial than We more population. like fact in cities of more than 100,000 people, of the are much con the streets and Chicago, highways .more by and and various other travelers gested by pedestrians and there is much traffic, injury probability greater of such cities than to streets persons property objection the streets of smaller There is no cities. reason of the fact that at legislation present is to which this if there is only city legislation applies, reasonable basis such any for classification. Under facts this case has more stipulated 2,700,000 than population Illinois. greater danger, for It is greater necessity police regulation. a fact that greater exists cities of danger greater popu and that is lation, very for reason the classifica basing tion on in this and it is population State, we sustainable, think, without It question. within power legis lature to classify cities basis of and enact population laws to each applicable where class, there is a reasonable basis for the classification in view objects pur to be poses accomplished by the De legislation. People v. Kalb and Great Western Railroad Co. Chi 290; 256 cago Terminal Railroad Greer, Co. v. 104; People id. v. Grover, id. 124; Douglas People, id. 536.” There if little, any, difference between the indemnity of a taxicab for company payment in- for judgments juries to person property arising the negligence of the taxi drivers and the city requiring wherein the taxi- cabs are operated the same provide in- indemnity for juries property from the arising negligence Mathews vehicles. of drivers illustrative case which is is another Ill. where to enact Assembly of the General power the issuance Therein factor is controlling. the population was authorized cash fund of bonds to create working more, for cities 150,000 population having or more or for counties having *6 It districts exceeding 100,000. school having population the constitu was contended that violated acts were and laws in relation tion because the local schools affairs and common cities, county management and and immunities in violation granting special privileges The of section 22 of article constitution. IV State “There are and in cities hav opinion reads, part: villages a small of a few hundred or a thousand, few ing population awith half men, force one or a dozen or a dozen police a fire with a half dozen volunteer firemen or department some firemen—a perhaps paid simple organization small revenue. More than one-third of counties have less than 20,000 less than population 500 square miles of territory. three which municipalities are now affected by the acts under have consideration populations on a little exceeding 3,000,000 over people miles square than territory to the square —more mile—with a density times as population fifty great in average density the rest of the These munici State. have more than palities 35,000 The annual rev employes. enue each them is measured hundreds of millions * * * of dollars instead of thousands. It is true that there are no other counties, cities or school districts in the class with those which made defendants in these three suits. There are none very close to the class and there may never be same class, but this does not render the classification void. The conditions there exist- furnish a ing reasonable basis for the acts making in ques- tion have effect in only to which municipalities they valid though the acts are therefore respectively apply, municipality.” never exist another may conditions similar in this cause for our conclusions A complete support Peoria, City be found in the cases of can Littell ex Moshier Springfield, rel. People it two the court had before legislative Therein Ill. 541. and firemen. minimum acts wage involving minimum employees It provided wages specified than but less or more municipalities 10,000 having popula 25,000 higher wages municipalities than cases tion but less Those passed 150,000. acts and of each of those constitutionality upon passed here. same as are questions presented uphold Minimum Act in ing validity of Policemen’s Wage case, the court “The of the act and Littell said: purpose the extent to which there has been an exercise of the police cannot be 'determined an from evaluation of power solely personal benefits to those accruing engaged police work the city of Peoria. It must determined be the character of service officers are required to render *7 in behalf in the of preservation State peace As order. heretofore pointed out, ais police protection matter of concern to the general whole Failure State. to detect and check crime in the more centers populous might leave the remainder of the to disorder and prey violence. The could well conclude legislature that the risk attendant the duties of a upon officer, the police hours he is subject call and to the character general of ser vice he is to required render, demanded considera tion and that a result higher would in wage securing greater in the efficiency service and more securely protect the peace order of the whole State.”
It would appear, therefore, this court its placed sanction the legislative determination that the hazards and risks of work were in a greater city of 10,000 to 25,000 than in a smaller community likewise greater in the than in those category to cities of 25,000 150,000
in to 25,000 population. of the of of city Chicago the Relieving policemen the which is liability insurance, of public burden carrying their increases wages. 1-15, indirectly effect of section as consider the rates compared When we high is no small the item. State, saving parts are the to that the legislature We asked hold by appellant this indirect method, transcended its by power providing, in that city. in the salaries of an improvement policemen We must our a sub- constantly be on guard prevent stitution discretion for judicial legislative judgment. made the the classification reasonableness of considering the General not courts will assert Assembly, attempt their General judgment judgment nor refuse Assembly, merely uphold legislation that their in this differs from that ground regard General classification, Assembly. question as we have said is distinctly within the heretofore, province and this has never been a legislature, judicial ques- tion for the except whether purpose ascertaining legislative action is clearly unreasonable. therefore,
Was the un- legislature, instant case, reasonable in giving additional policemen security because their problems essentially different those in other cities of Illinois? We do not think that it was unreasonable the General As- sembly to conclude that a job policeman’s city with hazards fraught uncommon to any other Illinois. The of the State of Illinois are people vitally interested in law enforcement in the city Chicago. By increasing and the wages security members of their police an department improvement personnel of that law-enforcement will agency surely follow. Pre- *8 liminary passage it present legislation must be made a that some committee legislature presumed conscientious study of conditions survey Chicago to find out if this This investi- was warranted. both doubtless reveal travel, would congestion gation number an uncommon vehicular, causing pedestrian areas; and slum areas of accidents; of automobile blight unassimilated elements crimes are bred and where foreign criminals; is offered skid rows where protection fleeing abounds; crime and for the law poverty, general disrespect narcotic hoodlums, and racketeers that rings, gangsters, kill with sawed-off all of which shotguns, pose problems that are not found in other parts Illinois.
In this a case, was entered Gaea judgment result of a of false arrest. In small charge towns an alert has a wide policeman acquaintance, knows practically everyone in his living territory. chances of his making a mistake in identification are but the negligible, danger some innocent in a arresting congested metropolitan area is Under the ever-present. instant law, metropolitan will not policeman be deterred or restrained in the perform- ance of his duty by if he knowledge that, makes a mis- he take, may be called substantial pay judgment. Counsel for also make appellant a contention that be- cause of this law, the tort liability of a policeman will be different in than in other All cities. that sec- tion requires is that a municipality 1-15 more shall indemnify policemen re- while in covered, small localities the must bear of such expense It protection. does not change tort general of a liability policeman. of the light foregoing observations, we are section of the Revised Cities and Villages 1-15
Act is the product proper legislative function and is not violative of section 22 of article IV the constitution Illinois. *9 of his also urges grounds
Appellant support that the statute referred is contention unconstitutional. We have them our attention and and reach study, given the conclusion that merit and are not of they without such that we would be importance justified prolonging an with opinion analysis them.
For the reasons heretofore assigned, court is affirmed. superior
Judgment affirmed. and Hershey, JJ., dissenting: Schaefer a line of By decisions the rule has long been established which classifies legislation municipalities upon basis of violates the population constitutional prohibition against unless the special legislation classification bears reasonable relation to the which the objectives seeks to ex (People rel. accomplish. v. Knopf, Stuckart 410; Ill. 212 Ill. Village Milford, L’Hote 418; Giebelhausen Daley, Ill. Here, 25.) objective to be sought is the accomplished indemnification of police officers for. rendered them judgments because of nonwilful injuries inflicted in the of their performance duties. The question whether a classification which re tricts the application statute to the alone, reasonably related to that objective.
The factors relied upon majority to sustain the statute are heavier and (1) more traffic in Chi- congested cago, (2) relatively wide acquaintance aof policeman in a small town and the diminished resulting likelihood of false arrests due to mistaken identification, (3) gen- eralized of social group conditions which are said to exist but not elsewhere in the State. support first of these grounds, traffic conges reliance tion, is placed upon People v. Kastings, which sustained a statute requiring indemnity bonds as a condition to the issuance of taxicab licenses in cities case would be more than That 100,000. a to indemnifica- us were confined if the statute before point due to the injuries officers for operation tion of police mark it is it far short of the when But falls automobiles. to in- sustain a statute which duty relied imposes all conduct of whether officers, demnify negligent the use an that conduct involves automobile. or not there is less also makes the point due mistaken in small identity likelihood of false arrests alert in a small knows because an town towns, policeman There are many his everyone community. practically *10 to which municipalities respect statement to lose true, argument although begins well before it reality reaches Evanston, (73,030), Spring- field, (80,832), Rockford, (92,503) Peoria, (111,523). But false arrests do not result mistaken from typically The identity. arrested is in- person ordinarily person tended to be arrested. No false-arrest case in reported Illinois has been found which involved an arrest of one when another was intended to be arrested. Nor it clear that is liable in such a arresting policeman situation. The does not question to have arisen in appear Illinois, and there is no in unanimity those jurisdictions which have it. O’Neil v. passed See: Keeling, Blocker Iowa, 754, Clark, 288 887; N.W. v. 227 126 484; Ga. v. Kittredge Prothingham, Me. 537, 114 Atl. 1063, A.L.R. 96 127 1057. the majority’s enumeration
Perhaps of social conditions which exist in and not in other of Illinois parts is such obvious as not hyperbole to warrant discussion. it Because seems to be seriously advanced, it however, may be noted that not all of the slum and areas of blighted Illinois are in v. Peoria Chicago. (Krause Au Housing thority, Ill. Clair 356; Quirin, St. Housing Authority v. 370 Ill. 52; Springfield Housing v. Authority Overaker, 379 Ill. 403; Housing Authority Gallatin v. County “hoodlums, Nor have Ill. God, 100.)
Church alone. (People afflicted and racketeers” gangsters Ill. Birger gangs).) v. 352; (Shelton Birger, 329 courts the statement deny records of United States Chicago. (Reports narcotic rings peculiar Table With the Federal Administrator of Courts, D3.) be the asserted differences conditions, of traffic exception which are State, and the other cities of tween Chicago are either nonexistent or to sustain the statute, relied upon irrelevant. from quotes City
The majority opinion Littell stat Peoria, validity Ill. which sustained ute minimum fixing wages policemen according popu classifications. But in that case the court lation expressly raised objection refrained this case, discussing “Defendant’s : contention that the act is (p. 350) saying and violates section 22 of article the constitution is answered People City Springfield, In the case supra.” Springfield (370 541, 548,) where the now before us was question the court considered, sustained the Firemen’s Minimum Act attack Wage under section 22 article because IV “The difference the cost the hazards of the living, occupation, within the two classifications in the municipalities act, *11 in those not embraced within its terms, furnishes a reason * * * able basis for such a It classification. bears a direct relation to the object purpose legislation.”
Of course differences in the cost of between living large and small cities are directly related to the salaries be to paid policemen firemen, and so are differences in the hazards of the But the occupation. differences which will sustain the classification present must be those which relate to the obligation imposed of taxpayers single municipality its indemnify policemen for the “nonwilful” injuries they inflict in the performance of their duties.
159 minimum cases, wage on the relying Apparently the ground this legislation upon would majority support “an about improvement indirectly brings this statute Reference in that city.” of in the salaries policemen of of the burden carrying made to relieving policemen for and to rates charged liability insurance, higher public such insurance in than parts State. far carries only enough Here, however, again, argument far and falls accidents, reach automobile cases-involving short of statute. meeting expanded scope present there is a vast difference between a statute Moreover, fixing minimum in terms of classifications which wages correlate costs, with differences in and a statute living which increases arbitrarily salaries in a city, single without relation to relevant The consideration. version of the statute in the majority under- suggested opinion scores serious question which exists under section 10 of article IX the constitution, which prohibits Gen- eral Assembly taxes cor- imposing upon municipal porations That corporate is the purposes. question which the does majority not discuss. In our objection constitutional it should be important; squarely faced, and the which grounds underlie the ruling majority should be stated. explicitly have not
Municipalities heretofore been liable for the unlawful or acts of negligent performance of their duties. v. (City Chicago Williams, 182 ; Ill. 135 Kankakee, City Evans Ill. Culver 223; v. City Streator, Ill. 238.) policeman, has however, been individually liable for his tort, he notwithstanding commits it while engaged performance a govern mental function. (City Chicago v. Williams, Board Trustees 135; Odell v. Schroeder, Ill. 353; Wisher Centralia, Ill. App. These 168.) rules are law altered present statute so that the aof taxpayers city single required to indemnify police- *12 their caused No similar by men for damages negligence. other mu- placed taxpayers obligation the duties by although performed nicipality, municipal are identical throughout State. imposition upon taxpayers single financial burden from which of all taxpayers cities in the are free can be sustained if only discrimination warranted circumstances related to in our legislative purpose. circumstances, Such opinion, not do exist.
(No. 32076. George R. et al., vs. Appellants, Ozier Haines, Cecil Appellee.
Opinion January 24, filed 1952.