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Dept. of Pub. Works v. Chi. Title & Tr. Co.

OPINION FILED NOVEMBER 27, 1950.

THE DEPARTMENT OF PUBLIC WORKS AND BUILDINGS, APPELLEE,

v.

THE CHICAGO TITLE AND TRUST COMPANY ET AL. — (ARTHUR T. GALT ET AL., APPELLANTS.)



APPEAL from the Circuit Court of Lake County; the Hon. WILLIAM M. CARROLL, Judge, presiding.

MR. JUSTICE DAILY DELIVERED THE OPINION OF THE COURT:

Rehearing denied January 15, 1951.

The Department of Public Works and Buildings of the State of Illinois filed its petition in the circuit court of Lake County to condemn, for park purposes, to-wit: the Illinois Beach State Park, three tracts of land, an undivided one-half interest of which belonged to the appellants, Arthur T. Galt and Ida Cook Galt. A jury returned a verdict finding the fair cash value of the respective tracts to be: $98,325 for a 207-acre tract in Benton Township; $7622 for a 38.11-acre tract in Waukegan Township; and $31,538 for a 48.48-acre tract also in Waukegan Township. The court entered judgment directing the petitioner to pay $68,990.36 to the county treasurer for the benefit of the Galts as full compensation for their undivided one-half interest. The Galts appeal from that order. We shall hereafter refer to them as appellants, and to the petitioner-appellee as the Department.

Appellants have made numerous assignments of error which fall into two broad classes. First, those which assert that the legislature has not, by appropriate legislation, delegated the power of eminent domain which the Department asserts in this case; and, second, those which relate to errors alleged to have occurred during the trial of the condemnation proceedings.

The original petition filed by the Department failed to allege any statutory authority as a basis for its right to maintain a condemnation proceeding, nor did it refer to any act of the General Assembly establishing an Illinois Beach State Park. Subsequently, an amended petition recited that the land sought was in accordance with the Department's plan for the development of the Illinois Beach State Park for which 1100 acres had already been acquired, and for which approximately 2100 more adjoining acres were to be acquired in the immediate future. The amended petition based the right of the Department to condemn on section 2 of an act in relation to the acquisition, control, maintenance, improvement and protection of State parks, as amended in 1931, (Ill. Rev. Stat. 1949, chap. 105, par. 466,) commonly referred to as the State Parks Act. It is appellants' contention that the grant of power of eminent domain contained in the State Parks Act has no vitality without legislation prescribing the terms and conditions upon which it is to be exercised. It is their claim that the legislature must further pass an enabling act which creates and names the park and describes its purpose, site and size, before the Department may validly exercise the power of eminent domain referred to in section 2 of the State Parks Act. In the alternative it is contended that if section 2 be construed as granting the power of eminent domain without a further enabling act, the said section is unconstitutional under section 13 of article IV of our constitution, in that the act embraces more than one subject, and that the subject of the act is not expressed in the title.

The aforesaid section 2, as amended in 1931, reads in part as follows:

"Sec. 2. It shall be the policy of the State of Illinois to acquire a system of State parks which shall embody the following purposes and objectives:

"(1) To preserve the most important historic sites and events which are connected with early pioneer or Indian history, so that such history * * * may be preserved, not only as a tribute to those who made possible the building of the State of Illinois and of the Union, but also as a part of the education of present and future Illinois citizens.

"(2) To set aside as public reservations those locations which have unusual scenic attractions caused by geologic or topographic formations, such as canyons, gorges, caves, dunes, beaches, moraines, palisades, examples of Illinois prairie, and points of scientific interest to botanists and naturalists. * * *

"(3) To preserve large forested areas and marginal lands along the rivers, small water courses, and lakes for a recreation use different from that given by the typical city park, and so that these tracts may remain unchanged by civilization, so far as possible, and be kept for future generations. * * *

"(4) To connect these parks with each other by a system of scenic parkways with widths varying from 100 to 1,000 feet as a supplement to and completion of the State highway system. * * *

"The Department of Public Works and Buildings is authorized in behalf of the State of Illinois to accept by donation or bequest, to purchase or acquire by condemnation proceedings under the Eminent Domain Act, or in any other legal manner, the title to all such lands, waters or regions, and the easements appurtenant or contributory thereto, which shall be in accord with such policy in respect to a system of State Parks, for the purpose of which the General Assembly may make an appropriation."

Appellants' argument that the authority to condemn, referred to in the foregoing statute, lies dormant until there is a further enabling act is based to a great degree on the fact that the formation of many of our State parks has been bottomed on an act of the legislature, which has designated the name, site, boundaries and purpose of the park, and has usually made the appropriation for purchase of the land. (Starved Rock State Park, Laws of 1911, p. 57; Blackhawk State Park, Laws of 1927, p. 46; and Wolf Lake, Laws of 1945, p. 204.) There is no question but what the power to create State parks lies with the General Assembly. It is equally well settled that that body may, in some instances, delegate its powers to an administrative agency, as long as it does not invest such agency with arbitrary powers, or delegate its general legislative authority. Among those powers which may be delegated is the power to select and condemn real estate for public purposes. (Loomis v. Keehn, 400 Ill. 337; People ex rel. Curren v. Schommer, 392 Ill. 17; Mitchell v. Lowden, 288 Ill. 327.) It is for the courts to decide whether the statutory conditions authorizing the exercise of the power of eminent domain exist. (Bierbaum v. Smith, 317 Ill. 147.) Section 2 of the State Parks Act states unqualifiedly that the Department of Public Works and Buildings "is authorized in behalf of the State of Illinois to accept by donation or bequest, to purchase or acquire by condemnation proceedings under the Eminent Domain Act, or in any other legal manner, the title to all such lands, ...


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