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Shelton v. the City of Chicago

OPINION FILED MAY 28, 1969.

L.C. SHELTON ET AL., APPELLEES,

v.

THE CITY OF CHICAGO ET AL., APPELLANTS.



APPEAL from the Circuit Court of Cook County; the Hon. ABRAHAM W. BRUSSEL, Judge, presiding.

MR. JUSTICE SCHAEFER DELIVERED THE OPINION OF THE COURT:

The two personal injury actions involved in this case were consolidated in the circuit court of Cook County. The defendants in each action are the City of Chicago and the County of Cook, and each action was brought to recover damages for personal injuries alleged to have been suffered as a result of mob action which took place in July of 1966. The plaintiff Shelton alleged that he was injured when he was shot by Chicago policemen who were endeavoring to suppress mob action, and the plaintiff Detres alleged that he was a passenger in an automobile which was set upon by a mob and suffered injuries when he was struck by flying glass. In each case the City and the County filed motions to dismiss the complaint which alleged, among other grounds, that the statutes upon which the actions were based had been repealed.

Affidavits filed by attorneys for the defendants showed that more than 200 actions were pending against the City and the County based upon the statutes involved in this case. In his order denying the motions to dismiss, the trial judge found, under Rule 308 of this court (Ill. Rev. Stat. 1967, ch. 110A, par. 308) that questions of law were involved with respect to which "there is substantial ground for difference of opinion" and that an immediate appeal from the interlocutory order denying the motions to dismiss might materially advance the ultimate determination of the litigation. Thereafter the appellate court granted the defendants' application for leave to appeal under that Rule. Subsequently, this court granted the motion of the City and the County to transfer the appeal from the appellate court to this court pursuant to Rule 302(d). Ill. Rev. Stat. 1967, ch. 110A, par. 302.

The following questions were certified by the trial court:

"(1) Whether the County, pursuant to Section 25-3 of the Criminal Code of 1961, as amended (Ill. Rev. Stat. 1965, ch. 38, § 25-3), is liable for mob violence occurring in cities within the county of over 5,000 persons, and, if so, whether said statute is constitutional;

"(2) Whether Section 1-4-8 of the Illinois Municipal Code (Ill. Rev. Stat. 1965, ch. 24, § 1-4-8) is constitutional because it applies only to cities of over 5,000 in population and, therefore, according to the City, constitutes special legislation as to that class;

"(3) Whether the `Local Governmental and Governmental Employees Tort Immunity Act,' Chapter 85, § 2-103, 2-109, 2-2-2 and 4-102 (Ill. Rev. Stat. c. 85, § 2-103, 2-109, 2-2-2 and 4-102 (1965) passed on August 13, 1965, and thus before this cause of action arose, repealed by implication the two statutes on which the complaints are based;

"(4) Whether acts passed by the 1967 Legislature, Act 815 and Act 1283, repeal both Section 25-3 of the Criminal Code of 1961 as amended (Ill. Rev. Stat. 1965, ch. 38, section 25-3) (applicable to the County) and Section 1-4-8 of the Illinois Municipal Code (Ill. Rev. Stat. 1965, ch. 24, § 1-4-8) (applicable to the City) and retroactively defeat this cause of action, which arose and was filed in this Court prior to the enactment of this 1967 legislation."

An affirmative answer to the last of the certified questions would eliminate all of the others, and we therefore consider that question at once. In 1967 the General Assembly enacted statutes which expressly repealed section 1-4-8 of the Illinois Municipal Code (House Bill 598), and section 25-3 of the Criminal Code (House Bill 1856), which are the two statutes upon which liability in these cases is predicated. Both of the repealing acts were approved by the Governor. (Laws of 1967, Vol. 2, pp. 3286, 2365.) At the same session, however, the General Assembly also amended section 1-4-8 of the Illinois Municipal Code (House Bill 958). This bill was also approved by the Governor (Laws of 1967, p. 3724), and it is contended that this bill, which was approved by the Governor on September 7, 1967, operated to re-enact the repealed section of the Municipal Code, despite the express repeal contained in House Bill 598, which was approved on August 21, 1967.

We find it unnecessary, in the circumstances of this case, to consider what, if any, significance should be accorded to the fact that the amendatory act was approved by the Governor more than two weeks after he had approved the repealing act. The amendatory act was one of a package of 174 bills which were prepared by the Legislative Reference Bureau to bring various statutes into conformity with the new Judicial Article of the Constitution, to delete obsolete terms, or to combine or rearrange sections, without making substantive changes. The single description applicable to all 174 bills which was contained in the Legislative Synopsis and Digest was as follows:

"HB-915 TO 1089 INCL. MC DEVITT AND PARKHURST

Amends, combines, resections or deletes terms in the following Acts or sections, making no substantive change:" (Here followed a listing of the individual bills by number, together with a reference to the section or sections affected by each bill.)

It cannot, we think, be fairly contended that the General Assembly intended, by a bill which purported to make no change of substance, to re-enact the repealed provisions of section 1-4-8.

If further indication of the legislature's intention to repeal section 1-4-8 of the Municipal Code was required, it is found in House Bill 2810, which was approved August 17, 1968. This bill, which was passed after the circuit court had denied the motions to dismiss the complaints in the present cases, again expressly repealed section 1-4-8. It was passed by a two-thirds vote in each house, and it contained the following emergency clause: "Section 2. Whereas some courts have, contrary to the real intention of this General Assembly, construed House Bill 958 as a reenactment and reinstatement of Section 1-4-8 of the `Illinois Municipal Code' despite ...


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