Before Hastings, Chief Circuit Judge, Campbell, Chief Judge,
and LaBUY, District Judge.
The opinion of the court was delivered by: Campbell, Chief Judge.
This is an action heard before the above three-judge court
convened pursuant to Title 28 U.S.C. § 2281 and 2284.
Plaintiff's complaint requests a temporary restraining order
and a permanent injunction enjoining the enforcement of Section
14.1 of the Illinois Public Building Commission Act (Laws of
Illinois, 1961, page 2770, Chapter 34, Section 3314.1, Illinois
Revised Statutes, 1961), and an order enjoining the Public
Building Commission of Chicago and its agents, employees and
representatives from proceeding with an eminent domain action
now pending in the Circuit Court of Cook County, Illinois. In
general plaintiff's complaint alleges Section 14.1 is
unconstitutional in that it denies the plaintiff equal
protection of the laws and due process of law in contravention
of the 14th Amendment to the Constitution of the United States.
Defendant has filed a special appearance moving the complaint
be stricken and the action dismissed and that the temporary
restraining order be denied.
A brief history of the facts shows that on September 12,
1961, the defendant, the Public Building Commission of Chicago
(hereinafter referred to as "Commission"), a municipal
corporation created by the City of Chicago in accordance with
the aforesaid Public Building Commission Act of the State of
Illinois, filed a petition in the Circuit Court of Cook County
to condemn a certain parcel of real estate owned by Peerless
Weighing & Vending Machine Corporation, (hereinafter referred
to as "Peerless"). The property is located in the central
business district of the City of Chicago commonly known as the
"Loop Area". This real estate consists of an area
approximately 54,560 square feet constituting a city block
bounded by Court Place on the north, Dearborn Street on the
east, Washington Street on the south and Clark Street on the
west, with the exception of an area of approximately 4,000
square feet at the northwest corner of Dearborn and Washington
Streets. This property is improved with a commercial parking
lot and other buildings which are leased to various business
Subsequent to the filing of the eminent domain petition in
the Circuit Court of Cook County, Peerless, the plaintiff
herein, had the cause removed to this court where it was
docketed as Civil Case No. 61 C 1681, and referred to Judge
Julius J. Hoffman. After hearing, and by order entered
November 17, 1961, Judge Hoffman granted the Commission's
motion and remanded said eminent domain proceeding to the
Circuit Court of Cook County.
Peerless then appeared in the State Court action and filed
a jury demand, a traverse and a motion to dismiss. It is noted
that said traverse alleges substantially the same
constitutional defects set forth in the complaint before us.
Subsequently, on January 11, 1962, Peerless filed in this
Court the complaint now under consideration.
The applicable statutes so far as herein material provide as
Title 28 § 1447(d), U.S.C.
"An order remanding a case to the State court
from which it was removed is not reviewable on
appeal or otherwise." As amended May 24, 1949, c.
139, § 84, 63 Stat. 102.
Eminent Domain Act; Illinois Revised Statutes (1961) Chapter
47 Sections 2.8, 2.9 and 10(a)
"§ 2.8 After the petitioner has taken possession
of the property pursuant to the order of taking,
the petitioner shall have no right to dismiss the
petition, or to abandon the proceeding, as to all
or any part of the property so taken, except upon
the consent of all parties to the proceeding whose
interests would be affected by such dismissal or
abandonment. Added by act approved July 11, 1957.
L. 1957, p. 2603."
"§ 2.9 If, on an appeal taken under the
provisions of Section 2.2. of this Act, the
petitioner shall be determined not to have the
authority to maintain the proceeding as to any
property, which is the subject thereof, or if, with
the consent of all parties to the proceeding whose
interests shall be affected, the petitioner
dismisses the petition or abandons the proceedings
as to any such property, the trial court then shall
enter an order revesting the title to such property
in the parties entitled thereto, if the order of
taking vested title in the petitioner; requiring
the petitioner to deliver possession of such
property to the parties entitled to the possession
thereof; and making such provision as shall be
just, for the payment of damages arising out of the
petitioner's taking and use of such property, and
also for costs, expenses, and attorney fees as
provided in Section 10 of this Act; and the court
may order the clerk of the court to pay such sums
to the parties entitled thereto, out of the money
deposited by the petitioner in accordance with the
provisions of Section 2.3(a) of this Act. Added by
act approved July 11, 1957. L. 1957, p. 2603. * * *
"§ 10.(a) If the petitioner is not in possession
pursuant to an order entered under the provisions
of Section 2.3 of this Act the judge or court, upon
such report, or upon the court's ascertainment and
finding of the just compensation where there was no
jury, shall proceed to adjudge and make such order
as to right and justice shall pertain, ordering
that petitioner enter upon such property and the
use of the same upon payment of full compensation
as ascertained as aforesaid, within a reasonable
time to be fixed by the court, and such order, with
evidence of such payment, shall constitute complete
justification of the taking of such property.
Provided, that if in such case the petitioner shall
dismiss said petition before the entry of such
order or shall fail to make payment of full
compensation within the time named in such order,
that then such court or judge shall, upon
application of the defendants to said petition or
either of them, make such order in such cause for
the payment by the petitioner of all costs,