APPEAL from the Superior Court of Cook County; the Hon. GEORGE
M. FISHER, Judge, presiding.
MR. JUSTICE HOUSE DELIVERED THE OPINION OF THE COURT:
Rehearing denied May 23, 1958.
The Department of Public Works and Buildings filed an eminent domain petition in the circuit court of Cook County to acquire 32 parcels of land for the widening and improving of Route 55. Thereafter on October 29, 1957, the Department made a motion for immediate vesting of title to two tracts pursuant to the provisions of the 1957 "quick taking" amendment to the Eminent Domain Act. (Ill. Rev. Stat. 1957, chap. 47, pars. 1 et seq.) By an order entered on the same day, a hearing on the motion was set for November 8. Illinois Brick Company, owner of the two tracts, filed a cross petition, and a motion to dismiss petitioner's motion on the ground that the amendatory act is unconstitutional. The trial court considered both motions at the hearing and entered a judgment order sustaining the motion to strike, dismissing petitioner's motion and declaring the amendatory act unconstitutional, illegal and void. The judgment is final and the appeal is directed to this court under section 12 of said act.
The amendatory act in question (H.B. 849, approved July 11, 1957) repealed those sections of the Eminent Domain Act embodying a previous "quick taking" statute, amended others and added new sections 2.1 to 2.10. (Ill. Rev. Stat. 1957, chap. 47, pars. 2.1 to 2.10.) Briefly, it provides that a motion may be filed subsequent to the petition for condemnation requesting the immediate vesting of such title as may be required. The motion must contain the legal description, the interest to be acquired, the formal schedule for execution of the project, the effect of the schedule, and the necessity. After a hearing fixed by the court, not less than 5 days later, such evidence shall be heard as the court considers necessary for a preliminary finding of just compensation. Notice of the hearing is required to be given each party to be affected except that any party being served by publication need be given notice only if the court so requires.
The court has discretionary power to appoint three appraisers to evaluate the property and report, and the court then makes a preliminary finding of the amount of just compensation. Upon payment into court of such amount plus an additional 25 per cent, the court enters an order vesting title in petitioner, fixing the date of such vesting and the date for taking possession and use of the property. Subject to certain conditions, including a hearing and an order of court, the owner may withdraw a maximum of the amount of preliminary just compensation fixed by the court. Thereafter the final determination of just compensation proceeds as in the normal eminent domain case. If the amount deposited exceeds the amount finally fixed the excess is returned to petitioner, and if it is less the court is to order payment of the balance to the owner.
Defendant contends that the amendatory act violates sections 2 and 13 of article II of the Illinois constitution in that it authorizes the possession and vesting of title to private property prior to the final ascertainment and payment of just compensation therefor; and that the act makes no provisions for the ascertainment and payment of damages to the remainder where only a portion of the private property is taken. It is also contended that the act further violates the due-process clauses of both the State and Federal constitutions by failing to make adequate provisions to secure and effect payment of just compensation as finally determined. Other constitutional objections are raised which will be considered later in this opinion.
Defendant's argument is based largely upon our holding in the case of Department of Public Works v. Gorbe, 409 Ill. 211. Petitioner refers to the difference between the acts under consideration, and insists that the Gorbe case should be overruled insofar as it holds that compensation must always precede the taking. That case involved the constitutionality of a 1947 amendment to the Eminent Domain Act. (Ill. Rev. Stat. 1947, chap. 47, pars. 2a et seq.) The only contention there discussed and passed upon was that section 2a contravened section 13 of article II of our constitution in that it permitted the taking and possession of private property for public use and the vesting of title prior to the payment of just compensation to the owner of the property taken. The 1947 amendatory act was held unconstitutional in the Gorbe case on the ground assigned, based upon earlier decisions therein cited.
Petitioner insists that a number of factors were not considered by the court in the Gorbe case and that analysis will indicate that the constitutional provision does not support the interpretation that compensation must always be paid before the taking. Chief among these factors is the assertion that there is little change between the 1848 and 1870 constitutions and that the cases construing the earlier constitution did not require prior payment.
The applicable eminent domain provision of the 1848 constitution (section 11, article XIII) provides: "* * * nor shall any man's property be taken or applied to public use without the consent of his representatives in the general assembly, nor without just compensation being made to him." Section 13 of article II of the constitution of 1870 reads in part: "Private property shall not be taken or damaged for public use without just compensation. Such compensation, when not made by the state, shall be ascertained by a jury, as shall be prescribed by law."
In construing the 1848 provision this court, in the early case of Johnson v. Joliet and Chicago Railroad Co. 23 Ill. 124, at page 131, said: "Some of the State constitutions require that the compensation allowed shall precede the enjoyment of the property. Ours does not, * * *." Again in Shute v. Chicago and Milwaukee Railroad Co. 26 Ill. 436, at page 438: "This clause [section 11, article XIII] does not require, as in many other constitutions, that the compensation shall be made before the land is taken and used." Subsequently, in Townsend v. Chicago and Alton Railroad Co. 91 Ill. 545, the rule above quoted in the Johnson case was recited and the court, at page 547, said: "This is not a new question in this State, nor is it an open question. The law is well settled and we are not disposed to disturb it."
Certain cases are cited by defendant which it contends show that payment must precede the taking, including Rich v. City of Chicago, 59 Ill. 286. There the primary question raised was the constitutionality of a statute which provided for ascertainment of compensation through an instrumentality other than the judicial department. That question was not passed on and the case was reversed for trial error. Prior payment was not an issue. In Cook v. South Park Comrs. 61 Ill. 115, a statute was construed to mean that no right to the land inured until payment of compensation. The opinion states, at page 121: "Even if the statute were in conflict with the constitution, the latter must control as the supreme law. But it is not. The statute provides that the title to the land, and the right to enter upon and use it, must follow the payment of the damages awarded." Strangely enough, in the same opinion the Johnson and Shute cases are cited as authority for prior payment. Despite the apparent deviation in one or two cases, the Townsend case correctly analyzed the problem, and there is no question but that the established rule under the constitution of 1848 permitted the taking prior to actual payment.
The 1870 constitutional provision is similar to that of the constitution of 1848. "Just compensation" is used in both and in the constitution of 1870 the provision for ascertainment of compensation by a jury was added. An examination of proceedings of the Illinois Constitutional Convention of 1870 reveals that four separate resolutions were offered, each providing for payment of compensation prior to the taking. (See Journal of Constitutional Convention, pp. 42, 48, 193 and 475; Debates and Proceedings of Constitutional Convention, vol. 1, pp. 88, 93, 155 and 858.) None of the resolutions was adopted, despite the repeated efforts to insert a specific provision requiring priority of payment. There was no discussion in the Gorbe opinion with respect to the intent of the framers of the constitution of 1870 since it was directed to the court's attention for the first time in a petition for rehearing.
In order to analyze the conclusion reached in the Gorbe case it is necessary to review and evaluate the cases upon which that conclusion was based. People ex rel. Decatur and State Line Railway Co. v. McRoberts, 62 Ill. 38, involved the question of proceeding under an eminent domain statute in effect at the adoption of the present constitution in the absence of a new act implementing the constitutional requirement for ascertainment of damages by a jury. The case held the parties could proceed under the old act but the condemnee was entitled to a ...