The order, averred in the declaration, did not authorize the employment of the plaintiff or anybody else for five years, but preceding a list of those to be employed it said: To employ the following for such periods of time during 1920 as may be necessary. Further, the letter, written a year and two months after it is said the contract was made and after the work had been done and the money paid, said: The commencement of your activities in the city's employment will be deemed as acceptance of the conditions named in this letter. All pleadings are to be construed most strongly against the pleader, and the burden was upon the plaintiff in this case, by clear and unequivocal averments, to set forth such facts as would show that the money paid him was not subject to the assessment made. The declaration is so indefinite and uncertain that it fails to show what work he was employed to do, what work he did do for the money received, or whether his employment was such as to bring him within or leave him without the protection of the rule under consideration. There yet remains for consideration the question as to whether, without regard to the indefiniteness and uncertainties in the averments, any cause of action on any theory is stated. In South Carolina v. United States, supra, after discussing the question hereinbefore adverted to, the court said (p. 459): It is also worthy of remark that the cases in which the invalidity of a Federal tax has been affirmed were those in which the tax was attempted to be levied upon property belonging to the State, or one of its municipalities, or was a charge upon the means and instrumentalities employed by the State, in the discharge of its ordinary functions of government. Then, after a review of many cases in the Supreme Court and in various other courts, not including the State of Illinois, the court concludes (p. 463): Now, if it be well established, as these authorities say, that there is a clear distinction as respects responsibility for negligence between the powers granted to a corporation for governmental purposes and those in aid of private business, a like distinction may be recognized when we are asked to limit the full power of imposing excises granted to the national Government by an implied inability to impede or embarrass a State in the discharge of its functions. It is reasonable to hold that while the former may do nothing by taxation in any form to prevent the full discharge by the latter of its governmental functions, yet whenever a State engages in a business which is of a private nature, that business is not withdrawn from the taxing power of the Nation. In City of Chicago v. Seben (165 Ill. 371), the court said (p. 377): It is well settled that municipal corporations have certain powers which are discretionary or judicial in character and certain powers which are ministerial. The powers of such corporations have also been divided into those which embrace governmental duties, such as are delegated to the municipality by the legislature, and in the exercise of which the municipality is an agent of the State; and those powers which embrace quasi private or corporate duties, exercised for the advantage of the municipal locality and its inhabitants. Municipal corporations will not be held liable in damages for the manner in which they exercise, in good faith, their discretionary powers of a public, or legislative, or quasi judicial character. But they are liable to actions for damages when their duties cease to be judicial in their nature and become ministerial (2 Dillon on Mun. Corp., secs. 949, 832; Tiedeman on Mun. Corp., sec. 324). A corporation acts judicially, or exercises discretion, when it selects and adopts a plan in the making of public improvements, such as constructing sewers or drains; but as soon as it begins to carry out that plan it acts ministerially and is bound to see that the work is done in a reasonably safe and skillful manner. ** It has been said that the work of constructing gutters, drains, and sewers is ministerial, and that the corporation is responsible in civil actions for damages caused by the careless or unskillful manner of performing the work. It is the duty of a munici * * * * pal corporation which exercises its power of building sewers to keep such sewers in good repair and such duty is not discretionary but purely ministerial. The adoption of a general plan of sewerage involves the performance of a duty of a quasi judicial character, but the construction and regulation of sewers and the keeping of them in repair, after the adoption of such general plan, are ministerial duties, and the municipality, which constructs and owns such sewers, is liable for the negligent performance of such duties. (See cases cited.) * * * It has always been the doctrine of this court that, while the legal obligation of the city to construct gutters and grade and pave streets is one voluntarily assumed, yet that, when the city constructs these improvements for the benefit of the public, it then becomes the duty of the city to see that they are kept in repair. (Citing cases.) In Johnston v. City of Chicago (258 Ill. 495) the court said: In considering the question of liability the authorities usually hold that it must be considered that a municipality acts in a dual capacity-first, in exercising its governmental functions; and second, as a private corporation, enjoying powers and privileges conferred for its own benefit. When such municipal corporation is acting within its authority, in a ministerial character, in the management of its property, it is liable for the negligent acts of its employees although the work in which they are engaged will inure to the benefit of the municipality. On the other hand, whether the municipality is exercising judicial, discretionary or legislative authority conferred by its charter, or is discharging a duty imposed solely for the benefit of the public, it incurs no liability for the negligence of its officers (2 Cooley on Torts, 3d ed. 1014; City of Chicago v. Seben, 165 Ill. 371; 20 Am. & Eng. Ency. of Law, 2d ed. 1197; Tiedeman on Mun. Corp., Secs. 338, 349). The mere fact that a particular work may incidentally benefit the public does not necessarily exempt the city for torts committed by its employees (20 Am. & Eng. Ency. of Law, 2d ed. 1196). Official action is judicial where it is the result of judgment or discretion. It is ministerial when it is absolute, certain and imperative, involving merely the execution of a set task, and when the law which imposes it prescribes and defines the time, mode and occasion of its performance with such certainly that nothing remains for judgment or discretion. A municipal corporation acts judicially or exercises discretion when it selects and adopts a plan in the making of public improvements, but as soon as it begins to carry out that plan it acts ministerially and is bound to see that the work is done in a reasonably safe and skillful manner. (City of Chicago v. Seben, supra; 4 Dillon on Mun. Corp. (5th ed.) sec. 1741.) The organization of this public library is for the exclusive benefit of the territory of the city of Chicago and not for the State at large. It has been organized by the people of that city, through their proper representatives, voluntarily, and the duties to be performed have not been thrust upon the people of said city nolens volens. Even a municipality, usually considered a quasi corporation, when voluntarily organized, has been held by this court responsible for certain negligent acts of its employees (Bradbury v. Vandalia Drainage District, 236 Ill. 36; 20 Am. & Eng. Ency. of Law, 2d ed. 1196). When a city under no obligation to light its streets voluntarily undertakes to do so, it has been held liable for negligence in the management of its corporate property when used for such purpose (Dickinson v. Boston, 188 Mass. 595). The doctrine of this court has always been that while the legal obligations to pave streets is one voluntarily assumed by the municipal authorities, yet when the city constructs these improvements for the benefit of the public it then becomes its duty to keep them in repair. * * * In Stedwell v. City of Chicago (297 Ill. 486, 488) the court said: Plaintiff in error contends that in lighting its streets it was exercising its governmental function and therefore not liable to anyone injured by coming in contact with wires used for that purpose. The point is conclusively settled contrary to the contention of plaintiff in error. (Johnston v. City of Chicago, 258 Ill. 494; Dickinson v. Boston, 188 Mass. 595; Davoust v. City of Alameda, 5 L. R. A. (N. S.) 536; Fisher v. City of New Bern, id. 542; 19 R. Č. L. 1132.) See also Hanrahan v. City of Chicago (289 Ill. 400, 404). The judgment of the court, in sustaining the demurrer to the declaration, is affirmed. INDEX A TD No. Accessories, automobile and motor-cycle; Regulations 47 amended... 3738 3737 Admissions tax; embezzlement; act 1918 (United States v. Johnston). Alcohol: Completely-denatured; Formula No. 6 revoked............. Change of packages by dealers... Expiration of permits; time extended_ Industrial; production, tax payment, etc.. 3714 3711 3734 3785 4769 3774 3732 3732 3764 Amendments to regulations: Advertisement of liquors; Regulations 60___ 3711 Capital-stock tax; fair average value; Regulations 64, articles 14 and Automobile trailers and semitrailers; article 11, Regulations 47, 3731 3771 Cooperative associations; capital-stock tax; Regulations 64. 3669, 3709, 3722 3769 Excise tax; fire apparatus; article 12, Regulations 47... Distilled spirits; transfers in bond; Regulations 60, amended. Effect of tax-free convenant in bonds; Regulations 62- 3687 Items included in gross income; Regulations 62. 3688 Various articles amended.. 3660 Withholding and information at source; articles 368, 374 re- Preservation of records; stamp tax; Regulations 40---- Exempt preparations; articles 141, 142, 143 amended; article 146 Internal use, preparations for; article 142 further amended....... Passage tickets; stamp tax; Regulations 55. Stock exchanges— Amendments to regulations-Continued. Bonds required from transportation permittees; sections 301(1), T. D. No. 3753, 3766 Suspension, withdrawals, pending revocation; section 1903, etc.- 3784 3785 3662 3745 3746 3788 3765 3744, 3752 3782 3783 3724 Capital-stock taxes; Regulations 64 amended. Tincture of ginger Disposing of stock; T. D. 3765 amended.. War and excess profits; tangible property; Regulations 45 and 62 Apparatus, fire; excise tax; article 12, Regulations 47 amended- Army officers' quarters, etc.; income tax; (Jones v. United States) - Income tax— Distinguished from trust; regulations amended.. Attorney General; opinion on community property, California_ 3748 3749 3670 3734 3738 Automobile parts; sales tax (Martin Rocking Fifth Wheel Co. v. United 3716 Automobile trailers and semitrailers; Regulations 47 amended. 3731 Automobile and motor-cycle parts and accessories; Regulations 47 amended. Federal tax liens (Guaranty Trust Co. of New York v. McKenrick 3723 Federal tax, priority, etc. (Oliver, trustee, v. United States). 3702 Interest; penalty (United States v. Childs, trustee) 3671 Internal-revenue taxes (Bates Machine & Tractor Co., bankrupt) 3762 Priority; partnership assets (United States and Bowers, collector, v. 3689 Basic permits; issuance by prohibition directors_ Abolished; T. D. 3757 rescinded.......... 3719 Board of Appeals to review revocations in prohibition cases: 3786 Canadian treaty for suppression of narcotic smuggling; regulations-- Excise tax; act 1918 (Ray Consolidated Copper Co. v. United States) 3721 Fair average value; Regulations 64 amended.. 3771 Munitions manufacturers' tax; credit_ 3730 Receivership (Stover v. Scotch Hills Coal Co.). Change of packages, specially-denatured alcohol, by dealers.. 3666 3745 3769 3695 T. D. No. Charge to jury; subject, taking seized property. Community property in California; Attorney General's opinion. Article 29, Regulations 64, amended.. Corporation income taxes (Schafly, trustee, v. United States). Admissions tax; act 1918 (United States v. Johnston)..... Dissolved corporation (Grand Leader v. United States) --- Federal tax, priority, etc. (Oliver, trustee, v. United States). Internal-revenue taxes (Bates Machine & Tractor Co., bank- 3747 3760 3670 3692 Priority; partnership assets (United States and Bowers, collector, 3689 Capital-stock tax Acts 1918, 1921 (International Salt Co. v. Phillips). 3673 Munitions manufacturers' tax; credit.. Excise tax; act 1918 (Ray Consolidated Copper Co. v. United 3721 3730 Corporation income taxes (Schafly, trustee, v. United States), 3693 3726 3675 Estate tax Act 1918; constitutionality; retroactivity. 3775 Act 1918; gross estate, transfers; effect at death (Cleveland 3741 Act 1921; constitutionality, etc. (Frew et al. v. Bowers) 3789 Gross estate; insurance policies, etc. (Lewellyn, collector, v. 3715 Gross estate; transfers; act 1918 (Shukert et al. v. Allen, col- 3729 Excess-profits tax; invested capital (Union Petroleum Steamship Co. 3699 Federal taxes; section 3229, R. S.; offers in compromise (Lone Star 3778 General administrative provisions Act 1921; United States v. Farmers and Mechanics National 3676 Act 1924; section 1030; liens (Sherwood et al. v. United States). 3706 Act 1916; Deduction, depletion, lessee (Lynch v. Alworth- 3690 Act 1918; invested capital (Milton Dairy Co. v. Willcuts) ___ 3751 3740 Income tax Act 1916; subsidies (Edwards v. Cuba Railroad Co.) Act 1916; insurance company, etc. (United States v. Boston Act 1913; income, trust, etc. (Irwin, former collector, v. Gavit) 3710 3755 3792 3728 Act 1918; corporation, partnership, etc. Act 1918, constitutionality; salaries of Federal judges and the Act 1918; army officers' quarters, etc. (Jones v. United States). 3724 3790 3725 |