*1 (No. 35249. Community et al. vs. Kaneland

Norma Molitor Unit Ap Molitor, District No. 302, Appellee. (Thomas — ) pellant. Opinion December filed *2 Hershey, JJ., dissenting. and Davis J., concurring part. dissenting and Bristow, Murphy Aurora, of Reid, Ochsenscheager, Hupp, & Reid, R. M. (Frank Ochsenscheager, Jr., L. William B. and C. Murphy, Hupp, Foote, Robert William J. counsel,) appellant. Aurora,

Matthews, SuheEr, & Jordon, Dean Carbary and Freeport, & Hoetan, Carbary, Burreee & Flgin, T. David (John Matthews, Burreee, M. Roger W. counsel,) appellee. FichmeiER, Klingbiel

Mr. delivered the opinion Justice court: Molitor, minor,

Plaintiff Thomas a Peter his father and next this action friend, Kaneland brought against Com- sustained injuries for personal District Unit munity School riding he was in which bus when by plaintiff negligence, the driver’s a result as the road, allegedly left burned. hit culvert, exploded a substance, negligence alleged, complaint the driver servant, District, agent through the School such exercise in the bus; plaintiff the school reasonably could safety his own care for ordinary mental capacity intelligence, of his boy age, expected sustained permanent that plaintiff and experience; defend result of as a injuries burns and proximate severe in the amount for judgment and prayed ant’s negligence, defendant further alleged Plaintiff of $56,000. under and existing district organized unit school voluntary Code of sections provisions 8—9 8—13 district pursuant school buses within and operates 122, pars. 1957, chap. section Stat. 8 — 9 29—5. and par *3 8 — 13 29 — 5. the existence no

The contained allegation complaint a insurance funds out of which judg- or other nonpublic ment defendant could be satisfied. Although plain- against dis- tiff’s abstract of the that defendant school record shows did limits carry trict insurance with liability public for each each and for $20,000 injured $100,000 person states that he omitted such occurrence, plaintiff purposely an from his allegation complaint.

Defendant’s motion to dismiss the on the complaint that a school district is immune from for ground liability was tort sustained the by trial and a was court, judgment entered in favor of defendant. Plaintiff elected to stand on his and complaint a direct sought to this court on appeal the ground the dismissal of his action would violate his constitutional At rights. that time held we that no fairly debatable constitutional question presented so to this court jurisdiction give on direct appeal, accord- ingly cause was to transferred the Appellate for Court affirmed District. The Court Appellate Second us the case now before of the trial court and decision on a certificate of again importance. by established rule,

In his brief, recognizes plaintiff immune from this court in that a school district is to abolish asks this court either liability, frankly tort a school dis- the rule in to or find it to to, to inapplicable trict such as Kaneland which was through organized the voters of voluntary acts of and election by petition nolens as contrasted with school district created district, volens by the State.

With to do contention, alternative we regard plaintiff’s believe that a distinction can drawn between logical unit school district community organized petition election the voters article 8 district to pursuant Code, (Ill. chap. Stat. 1957, pars. other in 13,) district, of school type 8 — 9 8 — sofar as the question of tort All are liability concerned. created for the “quasi-municipal corporations” purpose certain duties performing necessary for the maintenance a system of free schools. reasons deny allowing to all ing school districts without apply equally to the regard manner of their creation. We unwilling further the law complicate torts relating now technical drawing highly distinctions between the various of Illinois types school districts and tort making thereon. depend

Thus we are squarely faced with the highly important question light modern should a developments, —in school district be immune from in- tortiously flicted to a personal injury thereof pupil out of the arising of a school bus operation owned and said operated by *4 district ? that,

It appears while to the old adhering immunity rule, this court has not reconsidered and re-evaluated the doctrine of immunity school districts for over fifty years. these During years, however, subject has re-

15 schol writers legal by consideration exhaustive ceived condemning unanimously almost texts, in articles ars Lia Governmental Borchard, See, doctrine. immunity Litiga Freedom Green, 1; Yale Tort, in L. bility J. 34 Mu Immunity Tort Harno, Rev. 355; tion, L. 38 Torts, on Prosser 28; Q. Ill. L. Corporation, nicipal 4 Approach Historical 1063; Pugh, p. sec. chap. 476; Rev. Immunity, L. La. Sovereign the Doctrine of 13 the Doctrines on Commentary American Legal Repko, Prob and Contemporary Liability, Tort Law Municipal from Immunity Lia Governmental Rosenfield, 214; lems on *5 16 (Crisp

the same basis as a individual or private corporation. Thomas, T. N. Non-immunity v. (1890).) S. 63 756 has continued to of day. be law to England present Annotation, See: 160 7, A.L.R. 84.

The Russell Men Devon doctrine of v. was immunity of in with counties Illinois reference to towns and adopted Kemper, Then, Town v. Waltham Ill. of 55 346. years after the courts had refused to 1898, eight English Russell doctrine to court ex schools, Illinois apply tended the rule to school districts in the leading case of Kinnare v. City Chicago, Ill. where of was held that the of immune Board Chicago Education for the death of a laborer from a fall resulting from the roof a school due to the neg building, allegedly the Board in ligence scaffolding failing provide That reasoned that since the safeguards. opinion State subject to suit nor liable for the or torts negligence its agents, likewise a school as a district, the State, is also from the agency “exempted obligation as respond master, for acts of its damages, negligent servants to the same extent as itself.” State Later decisions the Kinnare doctrine have to ad following sought vance additional such explanations protection pub lic funds and public and to the diversion property, prevent tax moneys to the payment claims. v. damage Leviton Board Education, Ill. Thomas 594; Broadlands Community Consolidated School Dist. Ill. App. the whole

Surveying picture law governmental tort as it stands in Illinois today, broad outlines following may observed. The General Assembly has frequently indicated its dissatisfaction with the doctrine of sovereign which the immunity upon Kinnare case was based. Govern- mental units, including districts, subject now liability under the Workmen’s Compensation Occupa- tional Disease Acts. (Ill. Rev. 1957, chap. pars. Stat. 138.1, Board, v. Industrial 172.36; McLaughlin 281 Ill. 100; Board Industrial Education v. Com. Court of Claims' itself is under the liable, State for the negligence in tort to $7,500

Act, damages up (Ill. of its or Stat. officers, agents employees. have been and villages Cities chap. 37, pars. 439.1-439.24.) liable for caused directly injuries negligent made actionable of fire vehicles, department operation unsafe or unsanitary in the removal destruction of wrong 1—13, (Ill. pars. Rev. Stat. buildings. 1957, chap. 1— Park Dis 6.) Cities and and the villages, Chicago 1 *6 have also been indemni trict, way made of responsible, for (Ill. the nonwilful misconduct fication, policemen. Rev. Stat. 1957, chap. 24, 15.1; par. chap. par. 1 — In addition to the tort thus 333.23K.) liability legislatively the courts classi imposed units, have upon governmental fied local units of as government “quasi-municipal corpora tions” and And the activities “municipal corporations.” the latter class have been as categorized “governmental” with full if the “proprietary,” tort imposed function is classified as “proprietary.” incongruities that have resulted from fit conduct attempts particular into one or the other of these have been the sub categories ject frequent comment. Rhyne, Law, Municipal p. 732; “Active Phillips, and the Wrongdoing” Sovereign-Immu nity Principle Tort Rev. Municipal Liability, Ore. L. 122, 124; Davis, Tort Liability Governmental Units, Minn. Note, L. Rev. Tort 751, 774; Claims Against State Illinois and Its Rev. Subdivisions, N.W. L. 914, 921; Green, Freedom of Litigation (III): Municipal for Liability Torts, Ill. also Roumbos See 355. City Chicago, all Of of the anomalies that have resulted from legisla- tive judicial efforts to alleviate the injustice results that have flowed from the doctrine of sovereign immunity, the one most immediately to this case pertinent is the following provision of the Illinois Code: School “Any school district, any including school dis- non-high trict, which provides transportation insure pupils may or its district, of such agents loss or any

against from incident to ownership, or resulting employees, shall bus. insurance use any or school maintenance Such and authorized licensed be carried only duly companies such in this such state. Every policy write coverage shall issued to a school district insurance coverage provide, endorsed that such or be the company issuing provide, lia- deny waives to refuse or to payment policy right thereunder within the of said reason limits bility policy, insured district for the non-liability of school acts its wrongful negligent agents employees, and, suit, an state agency per- functions.” forming governmental under Thus, a an statute, injured by insured person bus district may recover to the extent of in- such surance, under the whereas, Kinnare doctrine, in- person an jured by uninsured school district can bus recover at all. nothing

Defendant contends that the quoted provision Code constitutes determination legislative of this public policy requires State school districts be immune from tort liability. We can read no such legislative intent into the statute. Rather, we that section as interpret *7 with expressing dissatisfaction the court-created doctrine governmental immunity an to cut that attempt down immunity where insurance is The involved. with difficulty this effort legislative to curtail the judicial doctrine is that it allows each school district to determine itself for whether, and to what it will be extent, financially for responsible the inflicted wrongs by it. down to the

Coming issue at precise hand, is clear if that the above rules and precedents are strictly applied the instant case, plaintiff’s complaint, no alle- containing as to the gation existence of insurance, was dis- properly missed. On the other hand, the complaint may be held to state a cause of action good on either one of two theories, (i) application of the doctrine of Moore v. Moyle, 405 school district that a the rule abolition (2) Ill. tort liability. is immune from case in- that Moyle, doctrine of Moore

As to the Bradley Uni- injuries against volved an action personal Traditionally, a charitable educational institution. versity, the have enjoyed and educational institutions charitable liability same from tort have Northwestern University, in Illinois. (Parks v. agencies The trial court dismissed 381.) 218 Ill. complaint The that was immune to tort ground Bradley liability. should Court that reversed, Supreme holding complaint not have been dismissed since it was Bradley alleged insured. fully we must admit that the Unfortunately, opin- ion in that case does not make the basis of result en- clear. tirely (See Note, However, “* * * court there said, p. question 564: insurance in no affects the way institution, but would only to the question of the manner of collect- go any ing be judgment inter- might obtained, without with, or fering the trust funds or trust-held subjecting to, property judgment. question as to whether or not the institution is insured no way affects more than whether a charitable institution holding pri- vate nontrust or funds property would affect its liability. These questions would be of only at the importance proper time, when the question arose as to the collection of any * ** out of judgment nontrust or assets. property Judgments may but the obtained, question of collection judgment a different If matter.” we were to literally apply to the reasoning present district case, we would conclude that it was unnecessary contain complaint an allegation existence of insur- ance or other nonpublic funds. Plaintiff’s complaint sufficient as it stood without any reference to insurance, and plaintiff would be entitled to prosecute his action to judgment. Only at that time, in case of a judgment *8 plaintiff, would the question of insurance arise, the pos- than execution rather an funds being

session nonpublic that overlooked, however, It cannot be liability a question. the last cast on this paragraph some doubt is approach “It court said: of the Moore where the appears opinion, or de not be Bradley that the trust funds will impaired the the and therefore prosecution complaint, pleted that if it was error it.” These to dismiss words imply funds not did not that the trust would complaint appear should been If have impaired, complaint dismissed. that is the true in the then case, itself, holding merely collectibility judgment, depends as presence nontrust out assets, pointed by Justice ton in his The doctrine of Moore Cramp dissenting opinion. v. does in our Moyle not, satisfactory offer a solu opinion, tion. provision Like the above quoted, School Code it would allow the to determine its liability. own wrongdoer

It a basic whole law torts concept underlying today follows and that individuals negligence, corporations for of their responsible negligence in the course of their agents employees acting employ- The ment. doctrine di- runs immunity counter rectly to that basic reasons, then, What concept. are so allow school as a impelling district, quasi- to commit municipal corporation, without wrongdoing to its while responsibility victims, any individual or private would be called to task in corporation court such tortious conduct ? basis of the rule original immunity has been called

a “survival of the medieval idea that the can do sovereign no or “the wrong,” can do no King Am. wrong.” (38 Jur., Mun. Corps., sec. In Kinnare 573, p. City Chicago, first Illinois case announcing the tort the court districts, said: “The State acts in its sovereign does capacity, not submit action to the of courts and judgment is not liable torts of its negligence agents, created corporation by the State aas mere for the agency more efficient exer- *9 from likewise exempted functions is of cise governmental master, in damages, negli- to the respond obligation as is the to the same extent of its servants State acts gent the is unless such liability expressly provided itself, nor such This was more nothing agency.” statute creating the theory immunity. than an extension of of sovereign less ever came immunity Borchard has said that how Professor United of America is one the to be States applied (Borchard, evolution. Governmental mysteries the of legal And Yale how was then Tort, Liability L. J. the infiltrated into the law of local controlling gov- the ernmental units has been described as one of amazing American common-law jurisprudence. (Green, chapters Freedom of Ill. Rev. “It Litigation, seems, 355, 356.) the however, prostitution concept sovereign immunity extend in this to for no one could scope way, seriously contend that local units possess sovereign themselves.” Harv. powers L. Rev. 438, the We that school opinion district immunity on this justified cannot As was theory. stated one “The whole doctrine court, of governmental immunity from tort rests rotten upon foundation. It is almost incredible that in this modern age comparative socio- logical enlightenment, in a republic, medieval abso- lutism to be supposed in the implicit maxim, ‘the can King do no should wrong,’ the various exempt branches of the government liability for their torts, and that the entire burden of damage from the resulting wrongful acts of the government should be imposed upon single individual suffers who the injury, rather than distributed among entire community constituting government, where it could be borne without hardship upon any individual, where it justly belongs.” (Barker v. City Fe, Santa N.M. 85, P.2d 480, 482.) Likewise, we agree with the Supreme Court of Florida that in preserving sovereign immunity theory, courts have overlooked the fact that the that “divine abolish right to fought War was

Revolutionary is based. the theory on which of Icings” im- advanced chief reason support other is recent cases the protection rule in the more munity This to corresponds funds and public property. public charitable theory fund” or “trust fund” “no in Thomas This relied on based. rationale was immunity Consolidated Dist. Broadlands Community that the court stated reason for where the App. 567, rule is “that it is the public protect policy funds the diversion public property, public prevent funds, of tax this case school moneys, payment claims.” line This seems to follow the damage reasoning *10 that it better for the to suffer than the individual to be inconvenienced. From it defendant’s public proceeds that school edu- districts would be and argument bankrupted cation if said districts were to com- called impeded upon children the pensate tortiously injured by negligence those districts’ agents employees. do1not believe that in this

We day age, present when education public constitutes one busi biggest nesses in the that country, school can be justified on the theory. protection-of-public-funds the first

In analysis place, theory shows that is based on the idea that payment claims a diver- damage sion educational funds to an As improper purpose. writers many have pointed out, in this fallacy argu- ment is that it assumes the very which is point to sought i.e., be proved, payment claims is not a damage proper purpose. “Logically, ‘No-fund’ or ‘trust fund’ theory without merit because it is of value only after a determination what is a school proper To expenditure. predicate immunity of a theory trust fund is to merely in a argue since it circle, assumes an answer to the very question at to issue, wit, what is an educational purpose? Many with disagree the ‘no-fund’ doctrine to extent of that the ruling payment of funds for judgments an educa in schools is injuries from accidents resulting as a argued can it be Nor properly tional purpose. rule dis the common-law the abandonment of result of Tennessee, California, be bankrupt. trict would completely not been states have and other York, Washington New (Rosenfield, their Gov shut down schools.” to compelled Acci for Tort Liability ernmental Immunity School Government, Notes on dents, Legal 376-377.) Local fallacious when is even more Moreover, argument au in the Code, viewed Illinois light thorizes (Ill. appropriations purposes” “transportation issu Rev. Stat. authorizes 122, chap. par. 6.1), 17 — ance of bonds for the of claims” Rev. (Ill. Stat. “payment and authorizes chap. par. 10), expendi 19 — tures of school tax funds for insurance covering school bus (Ill. operations. 1957, chap. par. Stat. It seems us that 11a.) claims payment damage 29 — incurred as adjunct an is as much a transportation “transportation therefore a authorized purpose” proper as are purpose of other payments involved in expenses operating buses. If tax funds can be properly spent to- pay premiums on liability there seems insurance, to be no reason good why they cannot spent pay itself in the absence of insurance.

Neither are we with impressed defendant’s that the plea abolition of immunity would create grave unpredictable problems of school finance and administration. We are in *11 accord with Dean Green when he of this disposed problem as follows: “There is considerable talk in the opinions about the tremendous financial burdens tort liability would cast In taxpayer. some it is opinions stated that this factor is sufficient to warrant the courts in protecting the taxpayer through immunity which they have thrown around municipal corporations. While this factor may have had compulsion on some of the earlier I courts, seriously doubt that it has any great with weight the courts in recent years. In the first place, taxation is not the subject matter citizen to the individual justice concern where judicial

of of other gov- the business of departments involved. It is to the funds required pay damages ernment provide the same Moreover, them the courts. against by assessed that would governmental corporations protect policy the injuries they bring upon the payment damages like immunity to a would be equally pertinent others many essential conceivably corporations, protect private out of business by concerns could also put private could incur under tort But as they liability. damages has Pri- matter no basis. fact, argument practical been in embarrassed, vate have rarely concerns greatly even where has instance, no recognized, been tort seriously liability. handicapped municipality in This is like so the horribles many of argument paraded tort cases when were courts boun- early fashioning tort It has daries of law. been thrown because simply there was better at hand. The nothing public’s willingness to stand the cost up pay carried out enterprises is no than less its insistence through municipal corporations that individuals and groups the cost their enterprises. pay Tort is in fact a small item in very budget well any organized Green, Freedom of enterprise.” Litiga- tion, Ill. Rev. 355,

We are of the that none of the opinion reasons advanced of school district support immunity have true validity Further we believe today. abolition such immunity may tend to decrease the frequency school bus accidents coupling power transport with the pupils responsi- bility care in the exercising selection and supervision the drivers. As Dean Harno said: “A municipal corpora- today tion is an active and virile creature capable inflict- much ing harm. Its civil responsibility should be co-exten- sive. municipal corporation looms up definitely and emphatically our law, what is more, it can and does commit This wrongs. it so, must being assume the responsi- bilities of the position occupies society.” Tort (Harno, *12 28, 42.) Ill. Q. Immunity Municipal Corporations, 4 care encouraged greater districts will be exercise School ade- carry also to in the matter transporting pupils that thus spreading covering transportation, insurance quate accident, costs of education risk as the other just school au- At least some the entire district. over spread for the vital need have thorities themselves recognized American Editorial, 100 which we are See change making. Board Issue No. 6, June, School Journal 1940. aon “The business is blueprint nation’s largest operating The a if not a thousand, years ago. public hundred, prepared constitutes system the United which States, in the is still under dom- business largest single country, ination of a measure con- legal principle great tinued effect since Middle to the unchanged Ages, no injuries has financial recourse for sustained person ** a result *. of the performance of the functions State’s That such a an so gigantic system, involving large appro- funds priation public so tremendous proportion United people States, should under the operate of a rule principles old of law so and so outmoded would seem were it not impossible true.” actually Rosenfield, Gov- ernmental Immunity for Tort in Liability Acci- dents, Law Problems Contemporary

We conclude that the rule of school district tort immu nity unjust, by any valid unsupported reason, and has no rightful in modern place da)r society.

Defendant that if strongly said urges immunity is abolished, it should be done by this legislature, court. With this contention we must disagree. doc- trine of school district immunity was created this court alone. Having found that doctrine to be unsound and un- just under present we conditions, consider we hai^e not only the power, but the duty, to abolish that immunity. “We closed our courtroom doors without legislative help, and we can likewise them.” open Pierce v. Yakima Valley Ass’n, 260 P.2d Wash.2d

Memorial Hospital 765, 774. stare de the doctrine of held that

We have repeatedly to blindly an inflexible rule court cisis is not requiring *13 and that decisions, and adhere follow to prior precedents require it and social needs when policy appears public as a court duty is our decisions, departure prior of last resort overrule those decisions and establish rule consonant with day our present concepts right Fox, Nudd v. 111; Ill.2d justice. (Bradley 106, v. 7 Matsoukas, Ill.2d Amann Ill. 608, Faidy, v. 615; 7 415 As was stated the New Court Jersey Supreme the doctrine “The immunity: of charitable overruling unmistakable fact remains that an earlier gen judges eration declared the because be they simply lieved it to be a sound instrument of judicial policy would further the social and economic welfare moral, a later State. When people judges generation reach firmly a contrary conclusion must be they ready to judicial their own discharge conformance responsibilities with modern and needs. It concepts should be borne mind arewe with law or other fields dealing property the law where stability and be of the predictability may utmost concern. areWe with the law of torts where dealing there can be if little, any, justifiable reliance and where the rule of stare decisis is admittedly limited. Pound, supra, See 22; at Seavey, Cogitations Torts, 13 N.A.C.C.A.L.J. ; 68 (1954) Cowan, ‘Torts,’ 10 Rutgers 115, L. 119 (1955).” Newark Collopy v. Eye Infirmary, Ear 27 A.2d N.J. 141 In here from stare decisis departing because we believe justice and such policy require we are departure, nonetheless cognizant of the fact that retrospective of our application decision result in may great to school districts hardship which have relied on decisions prior the doctrine upholding tort immunity of school districts. For this reason we feel justice will best that, be served by holding except

27 case, the rule herein established in the instant plaintiff occurrences. cases out future shall only arising apply authority is in with a substantial line of This result accord be that an decision should theory embodying overruling or hard injustice whenever only given prospective operation thereby due to reliance on overruled decisions would ship averted. U.S. Gelpcke City Dubuque, 68 17 Accounts, L. ed. Auditor Public 520; Harmon v. 123 Ill. 122 decision statute au (where validity of sustaining is, issue, overruled, bond issue to the thorizing subsequent ; decision Davies overruling operates Ware prospectively) Bowles, house Co. v. U.S. ed 635; People ex Salomon, rel. Attorney General v. (where officers public have relied on statutes held un subsequently constitutional, ; decision only given prospective operation) Jones, State v. N.M. P.2d (prospective decision operation given overruling as to what precedent constitutes a lottery); Abell, Continental Co. v. Supply *14 Mont. 148, P.2d de (prospective operation given 95 24 133 cision overruling as prior cases to directors’ lia corporate ; bility stockholders) Hare v. General Contract Purchase

Corp., 220 Ark. S.W.2d (prospective opera 249 973 tion decision given rule as to what changing prior consti tutes usury.) See also: Snyder, Retrospective Operation Decisions, of Overruling 121; Kocourek, L. Rev. 35 Decisis, Decisions Retrospective and Stare 180; 17 A.B.A.J. Freeman, The Protection Afforded the Against Retroactive Decision, of an Operation Col. L. Overruling 18 Rev. 230; Court Carpenter, Law, Decisions and the Common Col. 17 Note, L. Rev. 593; Prospective Operation Decisions Holding Statutes Unconstitutional or Prior De Overruling cisions, Harv. 60 L. Rev. 437.

Likewise there is substantial in authority of our support the position new rule shall to the instant apply case. Overholser, v. (Dooling (D.C. cir.) F.2d Shiou 825; 243 takon v. Columbia, District (D.C. cir.) 666; F.2d 236 Durham States, v. United (D.C. cir.) 862; F.2d Barker 214 28 Far 371; Mo. S.W.2d County, 986; St. Louis

v. 104 Ala. Co. England Mortgage Security New rior v. 182, N.E. 358; Haskett Ind. Maxey, So. v. 532; least two At Y. N. Supp. 530.) Dauchey Farney, 173 rule to the the new reasons exist applying compelling cases case while limiting instant otherwise application First, announce in if merely the we were to future. arising here, it announcement rule such the new without applying Second, more amount to dictum. import mere would ant, rule here would deprive refuse to the new apply from his effort and any expense benefit appellant erroneous. old rule which we now declare challenging there would incentive to Thus be no appeal upholding not benefit since could event of precedent appellant a reversal it. invalidating It is within inherent court of our power highest State to decision give prospective retrospective Great without constitutional offending application principles. Co., Northern Co. v. Sunburst Oil & Railway Refining U.S. ed. the cases which have

Although invoked ordinarily have contract or doctrine involved prospective operation or criminal the basis of the rights property responsibility, doctrine reliance an overruled precedent. Despite tort, fact that the instant case one sounding that the has ’’reliance test” been met here. We do appears tort itself was committed reliance suggest torts, i.e., on substantive law of the bus driver did not drive in reliance doctrine of negligently govern- mental rather that immunity, but school districts and other have relied and that corporations upon immunity municipal will suffer undue if they abolition of hardship *15 is doctrine In retroactively. reliance on the immu- applied doctrine, school districts have in- nity failed to adequately themselves sure In liability. reliance on immu- against doctrine, nity they have failed to probably investigate past accidents which would have had they they investigated Our therefor. later be held responsible known they might much of the hardship will eliminate decision present of their as a result school districts be incurred might doctrine, time the same and at the overruled reliance afforded us the opportunity reward for having appellant rule law. unjust an outmoded changing hold accordingly For the reasons herein we expressed, for the this case the school district is liable tort of its and all decisions to the prior negligence employee, overruled. contrary hereby dis- The Court judgment sustaining Appellate is missal of reversed and the cause plaintiff’s complaint remanded to the circuit court of Kane with instruc- County tions set aside the order dismissing complaint, with the views in this proceed conformity expressed opinion. remanded,

Reversed and with directions. Mr. Davis, dissenting: Justice dissent I from the which, decision of the court in one fell severs from swoop, the body of our Illinois law the ancient and established doctrine of immunity governmental from tort liability. The rule people collectively charged with a function was well established by 1607, fouth year of I. (Russell James Devon, Men 2 Term Rep. 100 Eng. Rep. 359.) rule of decision was adopted prior the constitution of and was in the Revised incorporated Statutes of in its form. It present today as section appears act adopting common law (Ill. Rev. Stat. 1959, chap. par. 1,) provides: “That the common law of England, far so as the same nature, applicable general and all statutes or acts of the British parliament made of, aid and to law, defects supply of the common prior to the fourth First, year the second excepting James section of Elizabeth, sixth chapter the eighth 43rd Elizabeth, chapter and ninth chapter Henry 13th 37th *16 30 not local nature and are of a general and which

Eighth, decision, and shall the rule of that shall be kingdom, au- legislative until by as full force repealed considered of (Italics mine.) thority.” of of the constitution 26 of article IV

Section 1870 be made de- shall never “The state of Illinois provides: this decision in court of law or Until fendant equity.” in both the such immunity Illinois courts have recognized these and its agencies agencies State decisions. have relied such the legislature find requirement In our constitution we present a this shall “thorough the General Assembly provide State all children of whereby efficient free system schools, receive a school education.” may this common good State have said that art. We (Ill. VIII, const. sec. “as mandate to the legislature provision operates exercise its inherent out carry primary, obliga power i.e., the children of our tory system concept government, are entitled educa State to a common-school good and at v. tion, public schools, People public expense.” Deatherage, Ill. 25, 401

In Town Waltham at Kemper, v. Ill. 346, page 55 we “We are satisfied, stated: on and au- principle the town of thority, Waltham was not liable to this action at common law, none has been statute.” We given by first applied immunity rule to school districts in the case of Kinnare v. City on Chicago, Ill. 332, that a school district ground is “an State, agency existence for sole having certain purpose performing duties, deemed necessary to maintenance of efficient 'an ” system of free like the is and, State, exempt schools/ from tort to the liability same extent as the itself, State “unless such expressly provided the statute such creating agency.” (Italics mine.) The court erred in its statement that the question of school districts from tort liability has not been reconsidered for over years. This subject was- thor- Education, Board v. considered Leviton oughly City v. Chicago, and in Lindstrom (1940); reiterated the rule was cases, In these (1928). Ill. 144 throughout nation, as State, generally in this for the torts or of their liable negligence districts provided statute. expressly unless their agents the immunity question, approval cited with Levitón Bank and Trust City Co. Chicago as recently Education, Ill. 508, Board *17 514. 386 of in the case at bar asserts that “the whole The opinion rests on a immunity rotten foun governmental of doctrine on the maxim that the can do “King dation” predicated The of the common law in history no Illinois wrong.” The rebuts epithetical charge. doctrine convincingly immunity in Illinois was not founded of governmental blind and unswerving application English a common Under (Ill. maxims. our statute, law or its Rev. Stat. 1957, the rule 1,) of decision embraces chap. par. more than law of as it common England the existed prior of system elementary a rules We adopted general judi declarations of cial have principles, continually ex the with of (Amann progress society. panded Faidy, v. Ill. Kreitz v. 434; Behrensmeyer, Ill. 496.) 415 149 characteristic the outstanding of glory our common is its for law capacity growth adaptability. (People ex rel. Keenan McGuane, v. Ill.2d 520, and 536; 13 535 Fox, Bradley v. Ill.2d 106; Nudd v. Matsoukas, Ill.2d 7 However, sound legal doctrine need not be discarded because, in the evolutionary process development, may once been have justified by now anachronistic reasoning. Neither Illinois nor any other State United States the theory adopted governmental immunity from tort the maxim the can “King do no as wrong,” it existed in but rather predicated such immunity various theories of the common law adaptable to the exi- gencies, customs, usages the people our various prac- the governmental under particular as States, applicable tices of each State. we stated: at and 148, Lindstrom, In fact that lies in the this rule

“The reason for is created merely here considered of the character district It the government. in the administration of to aid State interests and no has no corporate owns property, private acts. It is from its no benefits corporate derives special the an existence agency having State simply certain duties deemed necessary sole purpose performing free schools’ of ‘an efficient maintenance system In such district jurisdiction. within its State creating efficient exercise acts more sovereign capacity and such State, functions resting from the dam- district exempted obligation respond acts master, for of its servants to ages, negligent same extent as is unless itself, expressly State provided statute. v. (Nagle Wakey, Ill. 387; Wilcox v. Town City Chicago, id. Waltham 334; ” Kemper, (Italics id. 346.) mine.) in his work on McQuillin, has municipal corporations, stated a justification for the rule of which is * * * widely “The doctrine accepted: is based on the *18 familiar reason that the is not to undertaking promote private interests of the as a municipality corporate entity, but rather for the and in public benefit, of performance such obligation is a mere municipality public agent, either of the state or of the local The reason, community. expressed, is one public protect to policy, public often and public property. ‘Taxes are raised for certain funds specific governmental purposes; and if could they be di verted to the payment of damage claims, the more important work of government, which every must municipality per form regardless of its other relations, would be seriously if not impaired totally destroyed. The reason for the exemp ” * * *’ tion is sound and unobjectionable. 18 McQuillin, sec. (Italics mine.) 53.24.

33 Board v. rationale Leviton recognized We quoted at Education, Ill. 594, pages 374 599 Com’rs, : Ill. directly Drainage from Elmore 269 135 unless “The nonliability quasi corporation, public these is usually declared, expressly placed * * * That funds are no grounds: provided corporate be law, without can, appropri express provision such case, ated to Consequently, indemnification. private civil and no one of obligation, imperfect action lies at the suit of an individual non-perform ance of the duty This imposed.” principle protec in Thomas v. tion of funds likewise public recognized Broadlands Consolidated Dist. Community 348 App. 567. courts have held that are

Other school districts State liable to since the funds in their hands pay damages have been there for only; of education placed purposes that school districts are money by without to raise power taxation pay tort; and that allow school damages funds to be used in such manner detrimental, would even possibly to the disastrous, school Finch public system. v. Board Toledo, Education Ohio Ford v. St. 37; School District Kendall Borough, 121 Atl. Pa. 543, 812; Freel v. School City Crawfordsville, Ind. 27, N.E. 312; Wilson, Cochran v. Mo. S.W.

Such finds reasoning under logical Illinois support law. School districts are circumscribed in their tax. power to They authorized statute certain levy taxes for educational and and in building event purposes, transporta furnished, tion is they may levy tax given this pur (Ill. pose. Rev. Stat. 1957, chap. par. 2.) They 17 — issue may bonds for the purpose building or repairing school houses or purchasing sites, improving to the pursuant provision article Code, of the School (Ill. Rev. Stat. 1957, chap. par. 2,) and the county 19 — *19 clerk shall annually extend taxes against taxable prop- 34 the maturing principal sufficient to pay of the district

erty the certified with bonds accordance on said interest Rev. Ill. file his office. resolution "on of the bond copy 122, par. 1957, chap. Stat. 1 9 —9. orders for bonds to also may pay districts issue Rev. district,"(Ill. claims of teachers or against

wages liabilities or ; to pay 122, 1957, chap. par. 10) Stat. 19 — from a divi such districts resulting imposed obligations from part district created of the assets where a new sion 122, district, (Ill. 1957, chap. Rev. of Stat. original in bonded ; to refund an legal 11.1) existing par. 19 — 122, 16,) (Ill. chap. par. debtedness, 1957, Stat. 19 — and interest taxes levy maturing principal to may pay And 9.) thereon. Rev. Stat. (Ill. chap. par. 19 — limitations, cannot be a school district in addition to these five cent indebted excess of per come purpose of taxable therein. of (Const. value property It law that school art. 12.) par. elementary can those authorized levy districts taxes only purposes Louis, Rail Alton and Terre Haute (St. legislature. Ill. road Co. v. ex rel. People 155; Chicago Wolf, 224 Alton rel. Railroad Co. v. ex Ill. People Wolff, 205 taxes They without tort levy judg power pay ments, a and without such authorization tax for such pur would violate section article the State con IX of pose stitution which a proscribes municipal levying agency tax than other for a City corporate purpose. Chicago Education, Bank and Trust Co. v. Board Ill. 508; Education, Leviton Board v. Ill. Dimond 594; Ill. Highways, Commissioner Berman v. Board 503; Education, district under State, relationship section 1 article of the Illinois constitution, VIII is con stated ex rel. C cisely v. amar People Taylor go Community Consolidated School Dist. at “The Ill. 321, page 324: is a public created appellee municipal corporation by legis lative authority for such purpose exercising part *20 con- law has as the of the the State governmental powers of the machinery government. fided to it. It a part local merely Its and it is functions are wholly public, functions. those of the for the exercise of agency State of the corporations, character of such municipal functions territory the the extent their and and duration of powers in the shall be exercised rest they entirely legislative which exer- they may discretion. The which governmental powers cise and and for the hold use may which they property of the within the are governmental equally power purposes diminished, Their legislature. be powers may enlarged, at confirmed, or aside modified, their acts set or revoked, the pleasure legislature.”

Thus, under school districts have no statutes, existing levy to for the authority to issue bonds taxes purpose a tort The statutes authorize paying judgment. the of a levy tax and the issu- for transportation purposes ance bonds claims were when the doc- pay adopted trine of governmental tort fully both this recognized by and the court legislature, suggestion court that such levies could be used to satisfy tort judgments specious indeed.

If tort judgments secured a school district against to be paid, legislature alone must authorize their pay- ment and provide tax rate for the funds this levy of for purpose. Such are the of section of article IX teachings of the Illinois constitution, the Code, and all the cases heretofore cited. The pronouncement in Moore Moyle, Ill. 555,

and Thomas v. Broadlands Community Consolidated School Dist. App. charitable corporations school districts are subject to tort extent that liability, liability insurance is available to trust charitable protect fund and the public school fund, is consonant with existing statutes and the decisions of this court heretofore cited.

The court urges that under the effort legislative ameliorate burden placed on the individual under district each school immunity, of governmental doctrine it will extent, to what “whether, itself determines it.” inflicted by wrongs financially responsible if even of the legislature, the judgment criticism of This peculiar court imposing cannot justify valid, clearly in an area of sound legislative policy predilection its competence. beyond to relieve acted has legislature repeatedly

Since virtue fall the individual which may the hardship immunity. Governmental the doctrine to lia subject are now districts, including agencies, under Workmen’s Occupational bility Compensation Acts, 138.1, Disease (Ill. pars. Stat. chap. *21 is liable Act, the under the Court of State, Claims 172.36;) in tort the of its for for damages up $7,500 negligence or officers, (Ill. chap. 37, agents employees, 1957, Stat. cities and made have been 439.1-439.24;) pars. villages liable for caused the directly injuries negligent operation of fire actionable in the vehicles, for department wrong unsafe removal or destruction of or unsanitary buildings (Ill. 24, 6; Rev. Stat. cities 1957, chap. pars. 1—13, 1 1— and the Park have also been District, villages, Chicago made of for the non responsible, by way indemnification, wilful misconduct of (Ill. Rev. policemen, Stat. 1957, chap. the 24, par. and under 15.1; chap. 105, par. 333.23k;) 1 — Code, school district which provides transporta tion insure may loss or against any may arise from or incident the the ownership operation school bus (Ill. Rev. Stat. 1957, chap. par. 11a,) 29 — and any school districts insure may loss or liability against from the act resulting negligent any agent, employee, teacher, officer or member of the staff thereof supervisory from the resulting act in the wrongful of such dis person his duties within the charge of his scope employment. Ill. Rev. Stat. 1957, chap. par. 6 — 35.1. in

Thus, accord with the im- theme of governmental munity, unless “liability expressly by statute” provided Ill. Kemper, Town v. in Waltham as announced City Chicago, reiterated in Lindstrom limita- cited, heretofore the other cases 144, and restricted immunity, with the doctrine tion of the scope has left to the discretion legislature. been exceptions, that these legis- the contention court I denounce limitations the doctrine of lative fiat. justification by judicial are abolition immunity, of such restricting scope legislature, court, This in its area special competence. acting range has ventured it, unwisely beyond abolishing action. judicial entitled "The Holmes, his lectures Common Justice “ stated has not been

Law,” life of law logic, it has been our law in con- years, Over experience.” nection with has and de- governmental immunity grown in accordance with cus- veloped practices, experiences, toms and mores of times. The success and life of our republic based education. The necessity public such education of its offer endeavor magnitude reasons grave why court should refuse to overturn the precedent years with reference im- to governmental This munity. decision cannot but be the occasion for re- a flood of leasing litigation and in order legislation to estab- lish new boundaries in this area of novel liability. During this period, school districts will be harassed by doubts and difficulties which will their impair ability to conduct an *22 efficient system free schools. I regard appropriate following the United language States Court in Supreme Helvering Hallock, 106, U.S. 119, 604, ed. 612 : “We recognize that stare decisis an embodies important social It policy. represents an element of in law, continuity and is rooted in the need psychologic reasonable satisfy expectations.”

This decision, while here applicable school districts, by its pronouncement extends to the State all of its governmental agencies which have heretofore been within of the doctrine purview immunity. The various statutes which heretofore restricted this doc- trine favor of individual to be overridden by appear which, limitation, the full this without sweep opinion all overrules decisions immu- and nullifies the prior contrary doctrine. nity decisions,

If the court is consistent its future charitable trust funds must I likewise fall. cannot but conclude that the action of court striking doctrine, down established buttressed statutes long existence, error. We are predicated grave slate; on a clean we are writing with the law as dealing established and after In developed years of growth. Jensen, 221, Southern Co. v. U.S. 61 L. ed. Pacific 1086, 1100, Holmes, Mr. “I stated: dissenting, Justice without hesitation recognize do and must judges legis- late, but can so they do only interstitially; they con- fined molar to molecular motions.” In the case at bar, the court has broken the confines recognized of judi- cial legislation, has, overruled existing precedent, effect, repealed legislative policy enactments long standing.

In Federalist No. Alexander Hamilton wrote that courts “must law; declare the sense of the and if they should be to exercise disposed WILL instead of JUDG- MENT, would consequence equally the substitution of their pleasure to that of the I legislative body.” believe that the court in the case at bar has exercised its will in an area outside the of judicial scope and has power invaded the field of legislative action.

In the recent case of O’Callaghan v. Waller & Beckwith Co., Realty Ill.2d we refused to declare that an ex clause in culpatory a lease to residential relating property was void as against public At policy. we page stated: jurisdictions “Other have dealt with this problem by legisla tion. (McKinney’s Consol. Laws N.Y. Ann., Real Prop erty Laws, 1; sec. vol. 49, part Ann. of Mass., Laws

39 is one that subject sec. In 6, vol. c. our 186, opinion than action.” rather legislative judicial appropriate 26, and rehear- 1958, This November opinion adopted 22, Thereafter the was denied legisla- ing January such clauses ture enacted a statute which declared promptly in and residential leases to be void as public policy against Ill. Rev. par. unenforceable. Stat. 1959, chap. 15a. bar, Prior to the decision in case at governmental with that of rule in Illinois was in immunity harmony absence ex statute, the other the Union in the States the British York, of New which adhered to State cept rule of- liability itself, acts of school board while its immunity to the board for the extending negligence Education, (Miller v. Board agents employees. 291 2d Herman ; N.Y. v. Board (1943) N.E. 50 529 Education, N.Y. Wahrman (1922); N.E. 24 234 137 Board Education, ; N.Y. (1907) 331, N.E. Williams v. Board Trustees, 210 Div. 161, App. However, N.Y.S. even New York the (1924). judi cial rule was reinforced statute secs. by (N.Y. Law, Educ. while the rule of 3023,) liability was established in the statute and States California Washington. Calif. Code Educ. Ann. sec. (Deering Wash. Rev. 1952); Code, sec. 4,08.120 (1951). Illinois is the only State the United States in which the rule of liability against school districts has been established court decision.

If reason existed for rather than legislative judicial action invalidate an clause in a exculpatory lease, against public as this court held in policy, O’Callaghan, then, beyond doubt, same rule should have been applied by the court in its decision this case.

The basic wisdom of leaving changes modifications in the law pertaining to the action legislature well illustrated here. In present posture of the law, governmental are sub- agencies ject judgment tort actions without any attendant statutory authorization to levy taxes and thereby should for such revenue Such purpose.

raise agencies or its governmental State imposed upon aspects the complicated and considering without exploring levy pro- a tax without authorizing impact, *24 rate for such a tax purpose. viding and other committees, hearings, through legislature, into inquire adequately complicated of its can processes, such establishment circumstances attendant upon These of taxes for purpose. and raising are vested and inquiry functions of essential investigation this court branch of our the legislative government it consti- task, is neither for such nor practically equipped authorized to enter it. tutionally upon 21, we allowed This was May 1959, opinion adopted In term. at the rehearing September, petition reference to whether the court made no original opinion, In Braxon it would or operate retroactively prospectively. Bressler, Ill. stated: “Legislation at we future, affect vacillate and can but when courts only decisions, their be incalculable. overturn own the evils may often disturb They operate may rights retrospectively, should and fixed.” Conse- be as certain regarded see: such Also retroactively. quently, opinion operated Duke v. Grasse v. Dealer’s Co. Transport 179; Olson, Ill. App. 198. the court hold- modified

Upon rehearing, opinion that, case, the as in the instant to the ing except plaintiff rule should cases out of apply only arising future occurrences. The inability judiciary prac- with this is demonstrated the labored tically cope problem efforts of the court to resolve and the unusual doctrine which the court announced as the solution of the enigma in which it was entangled. jurisdictions,

The other which have given prospective to decisions cases operation overruling long recognized law, have such result largely predicated upon opinion Mr. Cardozo Great Northern Co. v. Railway Justice L. ed Oil & Co. U.S. Sunburst Refining of whether decisions It was there held that the choice or be given application should prospective retrospective that there with the the State court and rested judges in the States constitution to United nothing preclude that its over- the Montana court from decisions providing cases should be ruling prior given prospective application “whenever be injustice will only, hardship thereby averted.” The basis of the Sunburst doctrine was reliance an overruled there- precedent ensuing hardship from.

In this case the court that “In reliance on recognized doctrine, school districts have failed to ade- insure themselves and “have quately against liability” prob- failed to ably accidents which investigate would past they have had known later held investigated they they might therefor,” and conceded that the reliance responsible test Yet, had been met. the court included within the ambit of *25 its the action of opinion while the elements of plaintiff, reliance and were as real and ensuing with hardship present this defendant as with other defendant school dis- potential tricts which virtue escaped liability by prospective of the court’s application opinion.

The announced principle court is an aborted of the Sunburst It is offspring theory. without legal justi- fication other than that the should be plaintiff rewarded action, and it bringing has thwarted the reasonable of the well-intentioned expectations of de- body governing fendant school district. While court stated that its decision is in accord with a substantial line of authority, cited, the cases Overholser, other than v. Dooling (D.C. F.2d cir.) and Barker 825, v. St. Louis County, 243 340 Mo. 986, S.W.2d offer 371, no for the result support 104 obtained.

Eighteen of defendant district pupils were riding 10, bus on March when the bus 1958, crashed into a culvert which resulted in an explosion gasoline tank 42 most them

whereby were burned and injured. (Molitor v. Kaneland Community Unit Dist. 2d 302, App. When we consider that under the court’s decision.only Thomas Molitor can recover even other though pupils accident, were similarly injured the same the .position the court becomes even less tenable. .. 21, After was announced opinion on May 1959, it, response an legislature, by overwhelming vote, five bills adopted tort granting immunity park districts, Rev. (Ill. Stat. 1959, 12.1 — 1 and 105, chap. par. counties, 491,) par. (Ill. Rev. Stat. 1959, 34, chap. par. districts, forest 301.1,) Rev. preserve (Ill. Stat. 1959, chap. District, and the 57½, par. 3a,) Park Chicago (Ill. Stat. 1959, 105, It chap. par. 333.2a). also passed bill limited tort granting to school districts and non 122, schools. profit private (Ill. Rev. Stat. 1959, chap. 821-831, These pars. incl.) enactments became effective on divers dates in July, 1959.

In view of this legislation, decision of the court may limited, be of relative to the significance of school districts tort actions. Cf.: & O’Callaghan Waller Beckwith Co. Ill.2d Realty and Ill. Rev. 436, Stat. 1959, 80, In re 15a; Estate chap. par. Day, Ill.2d Ill. Rev. Stat. 1957, wherein the chap. decisions par. this court enactment; were annulled by legislative States, Jencks v. United U.S. 657, 1 ed. 2d 1103, and U.S.C. sec. wherein a decision of the United States Court was Supreme nullified an act of Con States, See: Palermo v. United gress. U.S. 343, L. ed. 2d 1287. of the court fails opinion to make reference action of the General Assembly concerning ques

tion of tort This immunity. in that we have significant held that where the frequently has legislature the changed n law a the case must be pending appeal, disposed by the court under the reviewing law as then exists. (Fallon v. Illinois Commerce Com. Ill. ex 516; rel. People ex Askew v. rel. Benton, Ill. 32; People Hanks Dix, Law v. ex rel. People 281 Ill. Ryan, 231; this Thus, in not reviewing erred I believe the court amendment in the the foregoing light judgment the School Code. However, be the source this decision will epochal after The statutes passed much confusion and litigation. days the last the the and within opinion adoption session, to certain immunity the doctrine restoring is, that it future by indicate to me agencies, municipal be, the to restore will legislation policy legislature Illinois, such modi- immunity subject as fication and research under study legisla- hearings, tive indicate may desirable. process this

While determines the issues before the opinion court, the which it has created remain and will problems continue to us until plague resolved. they justly

I would affirm the trial and courts. Appellate Hershey Mr. in this dissent. joins Justice Mr. Bristow, concurring part dissenting Justice : part I concur with the and the results' reached reasoning by this court in the case instant But the dis- plaintiff. of Mr. senting opinion Davis reads the court’s Justice as opinion immunity school districts abolishing only to the as instant but as plaintiff retaining other children who were injured with the plaintiff in the same accident. To the extent the majority opinion subject to construction to it imparted by I dissenting must opinion, withhold assent. is a

This test case a father on behalf brought of one children, his four all of whom were injured at the same time and under identical circumstances. It is clear that all children, the same father and having next friend and being represented counsel, same have in- identical terests appeal, has been an important test *27 in the cases There was a common of law case. question it serves the interests of justice of all the children and and entertain a test case all of the to encourage respecting children.

I would intimation that court’s reject any holding in this case is the named and would limited to plaintiff repel inference the court’s opinion pretermits rights I other children. also dissent from the court’s order the leave of the instant brothers and denying plaintiff’s sisters intervene this case and a clarification request court’s present opinion. reservations, dissent, these I With prompted join of the court in its majority opinion judgment case. (No. 34735. People Defendant in Er- Illinois, State

ror, vs. Plaintiff in Error. McKinzie, James

Opinion December filed George B. C. both of Chi- Collins, Dowben, J. error. cago, plaintiff General, Attorney Castle, Springfield,

Latham Notes Local Accidents, Legal for Tort bility Liability to Governmental Approaches Government 380; 182; Note: Problems Lim Tort, Contemporary Law9 Immunity the Doctrine Governmental itations on Immu The Sovereign Col. Note: Suit, 1236; L. Its Recent Doctrine Some nity States, Claims Against Tort Rev. 234; Minn. L. Developments, 40 N.W. Subdivisions, of Illinois and Its the State Rev. 914. of the sovereign we find that the doctrine Historically “the can do theory King state, the state no was first extended to' a subdivision wrong,” Devon, in Russell Men 2 Term Rep. (Prosser out Dean Prosser As Eng. Rep. pointed on Torts, the idea of the p. 1066), corporate municipal was still in state that time. The action entity a nebulous at county the entire brought against population and the decision that the immune was based county was fact chiefly that there were no funds corporate Devonshire out of which obtained, satisfaction could be a fear of of suits and plus incon- multiplicity resulting venience public. It should be noted case Russell was later over- ruled English courts, and that in it was defi- nitely established that in board or school England district is subject to suit in tort for injuries on personal