McLorn v. City of East St. Louis , 105 Ill. App. 3d 148 ( 1982 )

PRESIDING JUSTICE KARNS,

dissenting:

I do not consider this case to involve a question of sovereign immunity. Article IV, section 26 of the Illinois Constitution of 1870 stated that the State of Illinois could not be made a defendant in any court of law or equity. The proscription never applied against units of local government (People v. Illinois Toll Highway Com. (1954), 3 Ill. 2d 218, 120 N.E.2d 35) and has been abolished altogether in the Illinois Constitution of 1970 except as provided by the General Assembly. Ill. Const. 1970, art. XIII, §4.

Here, the City of East St. Louis was properly made a defendant in the Circuit Court of St. Clair County and judgment was properly entered against it when it failed to pay the award made to plaintiff under the Workers’ Compensation Act. (Ill. Rev. Stat. 1979, ch. 48, par. 138.19(g).) No question arises as to the propriety of that judgment.

We are here concerned with the proper method of satisfying that judgment, and this question does not present a sovereign immunity question, or a question involving the home rule powers of the City of East St. Louis, in my opinion.

Beginning with the City of Chicago v. Hasley (1861), 25 Ill. 485, orig. ed. 595, a long line of cases has held that execution cannot be levied against a municipal corporation on a judgment recovered against it, even though no exemption for cities or units of local government has ever appeared in the statutes, just as no such exemption appears in the Garnishment Act. (See Ill. Rev. Stat. 1979, ch. 77, par. 1 et seq.; ch. 62, par. 33 et seq.) This judicially created exemption was justified not on consideration of sovereign immunity, but on considerations of public policy. As stated in Hasley:

Levying on and selling such property, and removing it, would work the most serious injury in any city. Many of our cities, Chicago especially, have costly water works, indispensable to the lives and health of the citizens. These works are as much the property of the city as any other it may control, and, in appellee’s view, hable to be seized and sold on execution, to the great discomfort and probable ruin of the inhabitants. Fire engines are also indispensable; they too can be seized and sold, and a great city exposed to the ravages of fire, and all this to enable one or more creditors of the city to obtain the fruits of judgments against the city, which, by another process, not producing any of these destructive inconveniences, they could fully obtain. The money raised by taxation could also be levied upon, and the whole business of the city be broken up and deranged. Its offices and office furniture, its jails, hospitals and other public buildings, taken from the corporate authorities, and sold to strangers, who would have a right to the exclusive possession of them, if not redeemed. In the absence of an express statute authorizing a proceeding, fraught with such consequences, we must hold that a fi. fa. cannot issue against the city of Chicago.” 25 Ill. 485, 487.

If the tangible property of the city cannot be taken on execution, can the budgeted, operating revenues of the city, the revenues raised by taxation for public purposes on deposit in a financial institution be taken by garnishment? I should think not; garnishment is but a form of execution designed to reach debts owing the judgment debtor and property of the judgment debtor in the hands of third parties.

It should be emphasized that the funds sought to be reached here are the operating revenues of the city. These are not funds owing to city employees which the supreme court has held subject to the Wage Deduction Act in Henderson v. Foster (1974), 59 Ill. 2d 343, 319 N.E.2d 789. In overruling prior inconsistent cases holding that municipalities and units of local government were immune from garnishment in actions to reach wages owing employees who were judgment debtors, the court emphasized that public funds were not put in jeopardy. Here, public funds would be put in jeopardy. In overruling prior inconsistent decisions, I do not believe the court intended to overrule Hasley and other cases holding municipalities exempt from execution to satisfy judgments taken against the municipal corporation, as entirely different considerations are involved.

The exemption of municipal corporations from execution or garnishment to satisfy judgment debts is the general rule prevailing in the United States. It is the general rule that judgments against municipal corporations are not liens on property held for public use, including funds raised by taxation or funds appropriated for specific purposes. Such funds and property are exempt from execution or garnishment unless a specific statute provides otherwise. See 64 C.J.S. Municipal Corporations §§2211f, 2212 (1950).

Municipal corporations, just as counties, may not, however, refuse to satisfy judgments entered against them. (See Ill. Rev. Stat. 1979, ch. 34, par. 604.) There has always been an orderly method by which judgment creditors can compel, by mandamus, the satisfaction of judgments by payment or the levy of a tax sufficient to raise a fund to satisfy outstanding judgments against the municipality. See Ill. Rev. Stat. 1979, ch. 24, par. 8 — 1—6.