dissenting:
Since the majority opinion concedes that this court has consistently viewed the highway commissioner as a separate and distinct entity from the township, I fail to see how the decision in Molitor v. Kaneland Community Unit District, 18 Ill.2d 11, or the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1971, ch. 85, par. 1—101 et seq.) has any bearing on this case. As I read the majority opinion, it holds that by virtue of Molitor and the Act one separate and distinct governmental entity can be held responsible for the torts of another.
Not only have the cases drawn the distinction between the two entities but the statutory provisions have also made the same distinction. The present statute provides that roads are under the jurisdictions of road districts (Ill. Rev. Stat. 1971, ch. 121, par. 6—101); that each township shall be considered and is called a road district for all purposes relating to the construction, repair, maintenance, financing and supervision of township roads (ch. 121, par. 6—102); that any two or more townships may be consolidated into a consolidated township road district (ch. 121, par. 6—108); that in each road district there shall be elected a highway commissioner (ch. 121, par. 6—112) and that as the highway commissioner of a road district he has the duty of performing certain functions specified in the statute (ch. 121, par. 6—201). These duties include laying out, altering, widening or vacating township roads (par. 6—201.2), determining the taxes necessary to be levied on property within the district for road purposes (par. 6—201.5), directing the expenditure of all monies collected in the district for road purposes (par. 6—201.6), constructing, maintaining and repairing and being responsible for the construction, maintenance and repair of roads within the district (par. 6—201.7) and having general charge of the roads of his district, keeping the same in repair and improving them insofar as practicable (par. 6—201.8). These enumerated functions are only the most significant of the many specified in division 1 of article 6 of the Illinois Highway Code (ch. 121, par. 6—101 et seq.), which makes it clear that the roads located within the township are not under the jurisdiction of the political body called a town or township, but are under the jurisdiction of a road district and that the responsibility for these roads is likewise not vested in the town or township but is vested in the highway commissioner as an officer of the road district and not as an officer of the township.
It is unfortunate that the confusion has existed for so many years as to the distinction between the governmental unit referred to as a township and the highway commissioner of the township road district. The confusion appears to persist even though the present statute refers to the public body which has jurisdiction over the roads as a road district and the use of the term “township” in connection with the roads or with the highway commissioner has no significance other than to identify the geographical area or political subdivision wherein the roads are located. Western Sand & Gravel Co. v. Town of Cornwall, 2 Ill.2d 560, at 567.
In order to bridge the gap between the township and the separate entity having jurisdiction over the roads, the majority opinion relies upon the provision of section 6—112 of the Illinois Highway Code (ch. 121, par. 6—112) which provides that the highway commissioner of each road district comprised of a single township is an officer of that township. It should be noted that this provision applies only to road districts comprised of a single township. Therefore, in a consolidated township road district, the highway commissioner is not an officer of the township and, under the reasoning of the majority opinion, the township is presumably not liable for the negligent act of the highway commissioner. Thus, if the plaintiff in this case would have fallen over an obstruction placed in the highway of a consolidated township road district by the highway commissioner of that district, she would have no cause of action against the township, whereas if she would have fallen over an obstruction placed in the highway of a single township road district by the highway commissioner of that road district she would have a cause of action against the township under the reasoning of the majority opinion.
In my opinion the mere fact that the highway commissioner may be an officer of a township for certain purposes does not render the township responsible for his negligent act unless he was at the time that the act was committed performing some function related to the activites of that governmental unit. In this case the alleged negligent act of the highway commissioner was committed in the performance of a function related to the road district and for which the highway commissioner is responsible as the highway commissioner of that road district. It was not committed while he was performing any function as an officer of Centreville Township.
Nor do I believe that township liability is properly predicated upon section 3—102 of the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1971, ch. 85, par. 3—102), which provides that a local public entity has the duty to exercise ordinary care to maintain its property in a reasonably safe condition. Certainly this section of the Act was not intended to shift the responsibility for road maintenance from the highway commissioner to the township. The object of the statute was to compel government units to take reasonable care of the property within their jurisdiction. As township roads are within the sole jurisdiction of the township road district and the statute places the responsibility for their maintenance on the highway commissioner, it is the commissioner and not the township which is rendered amenable to suit by this statute.
For these reasons, I must respectfully dissent.