APPEAL from the Circuit Court of Lake County; the Hon. BERNARD
M. DECKER, Judge, presiding.
MR. CHIEF JUSTICE HERSHEY DELIVERED THE OPINION OF THE COURT:
Rehearing denied November 21, 1955.
The appellee, city of Waukegan, incorporated in 1859 by special charter with a coextensive school district, filed a petition in the circuit court of Lake County to condemn certain lands for a school building. The school board, by resolution, had selected the site and requested the action, and the city council, by ordinance, had authorized the proceedings under the eminent domain powers of special charter school districts. There was no referendum on the selection of the site. After a trial, the jury fixed the just compensation at $35,000. Judgment was entered on the verdict, vesting fee simple title in the appellee, and appellants, the original owners, appeal.
Since the title to the real estate is in issue, a freehold is involved and this court has jurisdiction on direct appeal.
The appellants below filed a motion to dismiss and traverse, which, after a hearing by the court, was denied prior to the trial on the merits.
Certain alleged errors for reversal are here assigned and argued by the appellant, the first three of which have to do with the order of the court in denying the motion to dismiss and traverse. The first of these alleged errors is that the petition to condemn was insufficient since it lacked certain jurisdictional allegations regarding the necessity for taking the property. In support of this contention the appellants assert that the power to take private property is limited to cases of necessity, which necessity must be shown in the petition to condemn.
The law is well established that the power to take private property is limited to cases of necessity, and the petition must contain allegations to that effect. (Inter-State Water Company v. Adkins, 327 Ill. 356; Department of Public Works and Buildings v. Lanter, 413 Ill. 581.) When these allegations are denied by the defendant, the burden is placed upon the petitioner to establish the fact. City of Chicago v. Lehmann, 262 Ill. 468.
The position of the appellants apparently is that the petition has defects going to the jurisdiction in that there is neither an allegation of necessity as such nor an allegation of facts demonstratively showing such necessity. They seem to claim that the very word "necessity" or "necessary" must be used.
An examination of the petition discloses that neither the word "necessity" nor the word "necessary" is used in any of the allegations, but the petition does contain an allegation that the school district "requires" the property in question. Appellee contends that its allegation is proper, because the statute giving a special charter district the right to condemn uses the word "requires" instead of "necessity" or "necessary" and that the allegation in the petition is correct. (Ill. Rev. Stat. 1953, chap. 122, par. 32-30.) Furthermore, the word "necessary" is an expression for what is requisite; a "necessity" is a "requirement"; to "require" is to "need." The words are synonymous, and to allege that premises are "required" is a sufficient allegation that they are "necessary." (Webster's New International Dictionary, Second Edition.) The word "require" used in the petition was all the statute called for all that was needed or required.
The second contention of the appellants (that the petition should also allege facts showing the need or requirement of said property) is likewise without merit. This same question was presented to this court in Decatur Park District v. Becker, 368 Ill. 442, and we held that the petition was sufficient and should not be dismissed on motion. The cases cited by the appellant, Inter-State Water Company v. Adkins, 327 Ill. 356, and Department of Public Works v. Lanter, 413 Ill. 581, are as to this contention not in point because the question presented there concerned the proof of the necessity and not the sufficiency of the allegation in the petition. On both points, therefore, there is no merit in the contention that the petition is insufficient or jurisdictionally defective.
The second alleged error assigned and argued in support of the motion to dismiss is that no election was held to locate the site. This is a multiple proposition, the most serious allegation of error made, and involves several questions: First, was the city and hence the district a special charter city and district under the 1859 act or did the city's adoption of the Cities and Villages Act in 1890 bring it under general city law, and if so, the school under general school law? If the latter, there is no question but that the site should have been selected by referendum. (Ill. Rev. Stat. 1953, chap. 122, par. 7-17.) Second, if the city remained a special charter city, and hence the district a special charter district, could it select a site by resolution without referendum and did it have power to condemn?
The 1859 charter act (Laws of 1859, p. 347 et seq.) incorporates and bounds the city of Waukegan, creates a coextensive school district, vests the city with school property and responsibility, delegates this to the city council which may administer through a superintendent, and empowers it "To erect, hire, or purchase buildings" and "To buy or lease sites" for schools.
The general school law, now set forth in the School Code, (Ill. Rev. Stat. 1953, chap. 122, pars. 7-1 through 7-23,) puts government of districts not governed by special acts in seven-member school boards, and grants their powers (sec. 7-14,) including eminent domain power to condemn. (Sec. 7-17.) The same section granting condemnation power contains the restriction that sites may be selected only by referendum. While the phrase "not governed by special acts" appears only in section 7-1 of article 7, this is the section providing for seven-member boards, and the section in question (requiring selections by referendum and providing condemnation powers) is a limited grant to such boards of such districts that is, districts not governed by special acts. We consider the limitation requiring referendum ...