dissenting:
By a long line of decisions the rule has been established that legislation which classifies municipalities upon the basis of population violates the constitutional prohibition against special legislation unless the classification bears a reasonable relation to the objectives which the legislation seeks to accomplish. (People ex rel. Stuckart v. Knopf, 183 Ill. 410; L’Hote v. Village of Milford, 212 Ill. 418; Giebelhausen v. Daley, 407 Ill. 25.) Here, the objective sought to be accomplished is the indemnification of police officers for. judgments rendered against them because of nonwilful injuries inflicted in the performance of their duties. The question is whether a classification which retricts the application of the statute to the city of Chicago, alone, is reasonably related to that objective.
The factors relied upon by the majority to sustain the statute are (1) heavier and more congested traffic in Chicago, (2) the relatively wide acquaintance of a policeman in a small town and the resulting diminished likelihood of false arrests due to mistaken identification, and (3) a generalized group of social conditions which are said to exist in Chicago but not elsewhere in the State.
In support of the first of these grounds, traffic congestion, reliance is placed upon People v. Kastings, 307 Ill. 92, which sustained a statute requiring indemnity bonds as a condition to the issuance of taxicab licenses in cities with a population of more than 100,000. That case would be in point if the statute before us were confined to indemnification of police officers for injuries due to the operation of automobiles. But it falls far short of the mark when it is relied upon to sustain a statute which imposes a duty to indemnify for all negligent conduct of police officers, whether or not that conduct involves the use of an automobile.
The opinion also makes the point that there is less likelihood of false arrests due to mistaken identity in small towns, because an alert policeman in a small town knows practically everyone in his community. There are many municipalities in the State with respect to which that statement is true, although the argument begins to lose reality well before it reaches Evanston, (73,030), Springfield, (80,832), Rockford, (92,503) and Peoria, (111,523). But false arrests do not typically result from mistaken identity. The person arrested is ordinarily the person intended to be arrested. No reported false-arrest case in Illinois has been found which involved an arrest of one person when another was intended to be arrested. Nor is it clear that the arresting policeman is liable in such a situation. The question does not appear to have arisen in Illinois, and there is no unanimity of opinion in those jurisdictions which have passed upon it. See: O’Neil v. Keeling, 227 Iowa, 754, 288 N.W. 887; Blocker v. Clark, 126 Ga. 484; Kittredge v. Prothingham, 114 Me. 537, 96 Atl. 1063, 127 A.L.R. 1057.
Perhaps the majority’s enumeration of social conditions which exist in Chicago and not in other parts of Illinois is such obvious hyperbole as not to warrant discussion. Because it seems to be seriously advanced, however, it may be noted that not all of the slum and blighted areas of Illinois are in Chicago. (Krause v. Peoria Housing Authority, 370 Ill. 356; St. Clair Housing Authority v. Quirin, 379 Ill. 52; Springfield Housing Authority v. Overaker, 390 Ill. 403; Housing Authority of Gallatin County v. Church of God, 401 Ill. 100.) Nor have “hoodlums, gangsters and racketeers” afflicted Chicago alone. (People v. Birger, 329 Ill. 352; (Shelton and Birger gangs).) The records of the United States courts deny the statement that narcotic rings are peculiar to Chicago. (Reports of the Administrator of the Federal Courts, Table D3.) With the exception of traffic conditions, the asserted differences between Chicago and the other cities of the State, which are relied upon to sustain the statute, are either nonexistent or irrelevant.
The majority opinion quotes from Littell v. City of Peoria, 374 Ill. 344, which sustained the validity of a statute fixing minimum wages of policemen according to population classifications. But in that case the court expressly refrained from discussing the objection raised in this case, saying (p. 350) : “Defendant’s contention that the act is special legislation and violates section 22 of article 4 of the constitution is answered in People v. City of Springfield, supra.” In the City of Springfield case (370 Ill. 541, 548,) where the question now before us was considered, the court sustained the Firemen’s Minimum Wage Act against attack under section 22 of article IV because “The difference in the cost of living, and in the hazards of the occupation, in municipalities within the two classifications in the act, and in those not embraced within its terms, furnishes a reasonable basis * * * for such a classification. It bears a direct relation to the object and purpose of the legislation.”
Of course differences in the cost of living between large and small cities are directly related to the salaries to be paid to policemen and firemen, and so are differences in the hazards of the occupation. But the differences which will sustain the present classification must be those which relate to the obligation imposed upon the taxpayers of a single municipality to indemnify its policemen for the “nonwilful” injuries they inflict in the performance of their duties.
Apparently relying on the minimum wage cases, the majority would support this legislation upon the ground that this statute indirectly brings about “an improvement in the salaries of policemen in that city.” Reference is made to relieving policemen of the burden of carrying public liability insurance, and to higher rates charged for such insurance in Chicago than in other parts of the State. Here, again, however, the argument carries only far enough to reach cases-involving automobile accidents, and falls far short of meeting the expanded scope of the present statute. Moreover, there is a vast difference between a statute fixing minimum wages in terms of population classifications which correlate with differences in living costs, and a statute which arbitrarily increases police salaries in a single city, without relation to any relevant consideration. The version of the statute suggested in the majority opinion underscores the serious question which exists under section 10 of article IX of the constitution, which prohibits the General Assembly from imposing taxes upon municipal corporations for corporate purposes. That is the question which the majority does not discuss. In our opinion this constitutional objection is important; it should be squarely faced, and the grounds which underlie the ruling of the majority should be explicitly stated.
Municipalities have not heretofore been liable for the unlawful or negligent acts of policemen in the performance of their duties. (City of Chicago v. Williams, 182 Ill. 135 ; Evans v. City of Kankakee, 231 Ill. 223; Culver v. City of Streator, 130 Ill. 238.) The policeman, however, has been individually liable for his tort, notwithstanding he commits it while engaged in the performance of a governmental function. (City of Chicago v. Williams, 182 Ill. 135; Board of Trustees of Odell v. Schroeder, 58 Ill. 353; Wisher v. City of Centralia, 273 Ill. App. 168.) These rules of law are altered by the present statute so that the taxpayers of a single city are required to indemnify policemen for damages caused by their negligence. No similar obligation is placed upon the taxpayers of any other municipality, although the duties performed by municipal policemen are identical throughout the State.
The imposition upon the taxpayers of a single city of a financial burden from which the taxpayers of all other cities in the State are free can be sustained only if the discrimination is warranted by circumstances related to the legislative purpose. Such circumstances, in our opinion, do not exist.