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PEERLESS WEIGHING & VEND. MACH. v. PUB. BLDG. COM'N

February 14, 1962

PEERLESS WEIGHING AND VENDING MACHINE CORPORATION, A CORPORATION, PLAINTIFF,
v.
PUBLIC BUILDING COMMISSION OF CHICAGO, A MUNICIPAL CORPORATION, DEFENDANT.



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 enterprises.

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 follows:

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.

Title 28 § 2283

    "A court of the United States may not grant an
  injunction to stay proceedings in a State court
  except as expressly authorized by Act of
  Congress, or where necessary in aid of

  its jurisdiction, or to protect or effectuate its
  judgments."

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. * * *
    "ยง 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,
  ...

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