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January 27, 1955


Before Schnackenberg, Circuit Judge, and Igoe and Perry, District Judges.

The opinion of the court was delivered by: Schnackenberg, Circuit Judge.

This action has been heard pursuant to 28 U.S.C.A. § 2281 and § 2284.

Plaintiffs, who are respectively the owners of real estate situated in Cook, DuPage and Lake Counties, Illinois, by their complaint seek an injunction restraining the defendants, The Illinois State Toll Highway Commission and its members, and the attorney general of the state of Illinois, from taking any action by virtue of the Illinois Toll Highways act, approved July 13, 1953,*fn1 affecting the properties of plaintiffs and other persons similarly situated, upon the ground that said act is unconstitutional in that it permits the taking of said property without due process of law, in violation of section 1 of the fourteenth amendment to the constitution of the United States. The act provides for the construction, operation, regulation and maintenance of a system of toll highways, creates the commission, defendant herein, and defines its powers and duties.

At a hearing upon the complaint and an answer thereto, the evidence offered by both parties was received.

The first ground for plaintiffs' contention that their constitutional rights will be violated is that no public hearings were either required by the act to be held or shown by the evidence to have been held by the commission prior to its determination of the locations or termini of the proposed routes for the Tri-State toll road.

It is clear that the act makes no express provision for public hearings. The evidence adduced shows that numerous complaints on this subject were received by the commission and replies thereto were made in various ways. It also shows that on several occasions some complainants and critics of the routes being considered by the commission were, when present, permitted to express their views either to the commission itself or to various staff members thereof, who reported these interviews to the commission. Persons who called at the office of the commission in Chicago, requesting information about the proposed routes, were given access to detailed maps which were there available. The evidence submitted by the respective parties forms a voluminous part of the record before us. It fails to show that the customary requirements for the calling of a public hearing, including the giving of public notice thereof, were ever complied with by the commission or, in fact, that any effort was ever made toward such compliance. Moreover what transpired on the few occasions when various members of the public were permitted to be present falls short of the essential elements of a public hearing. Those occasions were used more for a presentation by the commission than a reception by it of the views of those members of the public who were present. We do find, therefore, that there were no public hearings held.

Members of the commission and of its staff appeared at various meetings of organizations and explained the purposes of the commission. While the complaint charges that the defendants have kept secret the precise lines of a survey of the proposed new route, we find no evidence of any secretiveness in this respect.

The evidence shows that the proposed highway is to extend from the Indiana state line to the Wisconsin state line and traverse the area in Illinois lying between those state lines. It also shows that this highway would terminate at the Indiana state line at a point several miles south of where a toll highway about to be constructed by the state of Indiana will reach the same state line. The evidence fails to show that the terminus of the proposed highway at the Wisconsin state line will connect with any presently planned toll highway in Wisconsin.

The evidence further shows that the highway in question as it passes west of the city of Chicago will be several miles further from the Chicago city limits than would be a suggested route located on what is known as the River Road, and that the commission has taken the position that the route it suggests is feasible and would be much less expensive to acquire than the River Road route, which decision they base upon the advice of their engineers, appraisers and lawyers.

Section 28 of the Act provides:

    "§ 28. All determinations made by the Commission
  in the exercise of its discretionary powers with the
  approval of the Governor, if such approval is
  expressly required by the provisions of this Act,
  including, without limitation, with reference to the
  location and terminal points of any toll highway, or
  section thereof, constructed by it, the materials to
  be used in its construction, and the plans and
  specifications thereof, the tolls to be charged for
  the use thereof, and the letting of contracts for the
  construction of toll highways or any part thereof, or
  the sale of bonds to provide funds for the payment of
  the cost thereof, shall be conclusive and shall not
  be subject to review by the courts or by any
  administrative agency of the State."

The Illinois Supreme Court considered this act and stated that it could find no valid constitutional objection to it. People v. Illinois State Toll Highway Commission, 3 Ill.2d 218, 120 N.E.2d 35. Among other things, it held, 3 Ill.2d at page 232, 120 N.E.2d 35, that the functions delegated to this commission are administrative and ministerial, and are not legislative in their nature, and, that the delegation of such power to the commission by the legislature is valid. That determination cannot be questioned in this proceeding. State of Ohio ex rel. Bryant v. Akron Park District, 281 U.S. 74, at page 79, 50 S.Ct. 228, 74 L.Ed. 710, and Neblett v. Carpenter, 305 U.S. 297, at page 302, 59 S.Ct. 170, 83 L.Ed. 182. In the same case that Illinois court also held, 3 Ill.2d at page 233, 120 N.E.2d 35, that the provisions of section 28 making the commission's determinations in the area of its discretionary powers conclusive and not subject to review, are limited to discretionary matters and that recourse to the courts is not denied where bad faith, fraud, corruption, manifest oppression or a clear abuse of discretion enters into the commission's determinations, and that the presence of any of these conditions will give ready access to the courts. It further held that the determinations of the commission can constitutionally be made conclusive so long as none of the above evils is present. In the case at bar it is admitted that none of these evils is present. Whether or not the act offends against the constitution of the state of Illinois is not for us to decide. That function is exclusively within the jurisdiction of the state courts. Whether or not the legislature was wise in passing the law or in enacting certain of its provisions is not for us to decide.

In view of the act's lack of requirement for public hearings and the act's provision that the commission's determinations are to be conclusive, as well as the relevant facts which we have herein set forth, would the threatened action of the commission against the property rights of plaintiffs be a violation of the due process clause of the ...

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