20 Ill. 445 | Ill. | 1858
By the city charter of Chicago, authority is conferred upon the city to remove obstructions from, and to widen, deepen and straighten the harbor of Chicago ; and that harbor is declared to embrace the Chicago river and. its branches to their sources, and to extend one mile into the lake. This action is brought for neglecting to exercise the authority here conferred, to remove the hulk of a sunken vessel, near the mouth of the harbor, by reason whereof the plaintiffs had sustained damage. To maintain this action we must hold, that the city is bound to exercise all the authority here conferred, and to do all the acts here authorized. Such, we are satisfied, was not the intention of the legislature. If they were liable to one party for the damage he has sustained by reason of their having neglected to do one of the acts authorized, they are equally liable to another, for the damages which he has sustained, because they omitted to do another of these acts; and so they must do all that is here authorized, or be answerable for all the damages which may be suffered by the omission. The courts cannot discriminate and say, you shall remove this wreck, but you need not remove that sand bar, or deepen the river in another place, or straighten it in another. The law has either left it to the discretion of the common council to say which of these acts the public good requires them to perform, or it is imperative that they shall perform all. Did the legislature ever intend that the municipal authorities should be absolutely bound to remove all obstructions in, and to straighten, widen and deepen the Chicago river and its branches to their sources, extending back as they do for more than twenty miles into the country ? The very extent of the powers conferred, and the magnitude and expense of the work which they are authorized to perform, in reference to this harbor, show that it was never the intention of the legislature to impose the absolute obligation upon the city to perform it all, and if not all, then no part was imperative; for no authority is vested anywhere except in the common council of the city, to say what part it is necessary, expedient and proper that they shall perform: It does not follow, that no pecuniary responsibility rests upon the city in connection with the subject. If the city undertakes to do any of the acts authorized by the law, it must do them in a careful and proper manner; and if it does not, whoever suffers for the want of such proper care would be entitled to compensation for the damages he thus sustains. If the city authorities had undertaken to remove this hulk, and in so doing had carelessly left it in an exposed position, by reason whereof the plaintiffs’ steamer had run against it and was injured, they might well have claimed damages for such negligence. But until they had assumed the responsibility of removing the wreck, we cannot hold that they were' bound to remove it, any more than to remove the sand bar at the mouth of the harbor, or to remove driftwood from the North Branch ten miles above the city. We think the demurrer to the declaration was properly sustained, and the judgment must be affirmed.
Judgment affirmed.
