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UNITED STATES v. CERTAIN PARCELS OF LAND

October 15, 1962

UNITED STATES OF AMERICA, PETITIONER,
v.
CERTAIN PARCELS OF LAND IN PEORIA COUNTY, ILLINOIS, PLEASURE DRIVEWAY AND PARK DISTRICT OF PEORIA, ILLINOIS, ET AL., AND UNKNOWN OWNERS, DEFENDANTS.



The opinion of the court was delivered by: Mercer, Chief Judge.

Plaintiff, the United States of America, filed this suit under the eminent domain provisions of the Federal Aid Highway Act, the General Condemnation Act and the so-called federal "quick take" statute,*fn1 for the condemnation of certain lands in Peoria County, Illinois, for highway purposes.

The defendant owner of the land, Pleasure Driveway and Park District of Peoria, Illinois, answered the complaint averring that the land in suit is devoted to a public use as a part of Bradley Park in Peoria, Illinois, and that plaintiff has no authority under the provisions of Section 107(a) of the Federal Aid Highway Act to condemn the property for highway purposes. Because defendant's answer partakes of the character of a motion for summary judgment, and because the whole cause would fail if defendant's theory as to the legal effect of the undisputed facts should prevail, this court on June 8, 1962, entered an order restraining enforcement of a quick-take order for possession of the land, entered May 24, 1962, until the further order of the court.

Since the facts are not disputed, a hearing was held July 6, 1962, upon defendant's answer, treated as a motion for summary judgment, at which time the parties were directed to submit briefs to the court. Those briefs have now been received and the cause is under advisement.

The undisputed facts follow: The Federal Aid Highway Act, 23 U.S.C.A. § 101 et seq., inter alia, authorizes the construction of a national system of interstate and defense highways. The several states participating in its program are charged with the responsibility, within each its respective borders, for the routing, planning, right-of-way acquisition and construction of the interstate highways, subject to the prior approval of the Secretary of Commerce of routes, plans and construction projects.

On January 5, 1962, the Department filed a suit in the Circuit Court of Peoria County for the condemnation of that land as a right-of-way for FAI 74. The Department's complaint was dismissed by the Circuit Court, apparently, in reliance upon the decision in Dept. of Public Works & Buildings v. Ells, 23 Ill.2d 619, 179 N.E.2d 679.

In the Ells case, the Supreme Court of Illinois stated the established principle of Illinois law that a general grant of eminent domain power to the Department does not authorize the condemnation of property already devoted to a public use,*fn3 and held that the Department had no authority to condemn school district property for highway purposes.

The Department did not appeal the decision of the Circuit Court. Instead, it requested the Secretary of Commerce to acquire the land in suit pursuant to the provisions of 23 U.S.C.A. § 107(a).*fn4 Pursuant to that request, this suit was filed by the United States.

The issue before the court is raised by defendant's second affirmative defense. Thus defendant avers that the Department has not been given specific authority by the Illinois General Assembly to request that the United States condemn this municipally owned and publicly used land for highway purposes; that the Department, lacking legislative authority to condemn this land in the name of the State, is subject to the same infirmity in its authority imposed by Illinois law in the matter of requesting federal condemnation; that the power of the United States to take the land in suit is conditioned upon a valid request by the State of Illinois; and that the eminent domain power of the United States can be invoked in the premises only by an act of the State's General Assembly.

Thus, the decisive issue before the court is the question whether the United States has the power to condemn the land in suit upon a request by the Department in view of the decision in the Ells case that the Department, as a matter of State law, has no authority to condemn for highway purposes municipally owned land which is already devoted to a public use, and in view of the provision of Section 107(a) of the Federal Act requiring a request by the State before the Secretary of Commerce may invoke the federal power of eminent domain.

Defendant would seemingly have the court approach this issue from the starting point of the limitation of State law upon the authority of the Department to take the land in suit. I reject that as the starting point. Defendant does not contend that the Federal Act is not a valid exercise by Congress of its constitutional powers. The Act, being a valid exercise of federal power, is the supreme law of the land which cannot be limited by conflicting provisions of State law. United States v. Carmack, 329 U.S. 230, 242, 67 S.Ct. 252, 91 L.Ed. 209. In short then, we deal with a question of the federal power of eminent domain, uninfluenced by the limitations imposed upon the Illinois Department by the laws of that State if the power of the United States is properly invoked under Section 107(a) of the Act.

The scope of that federal power is spelled out in United States v. Carmack, 329 U.S. 230, 67 S.Ct. 252, 91 L.Ed. 209. Carmack was a suit to condemn lands held in trust by a city and devoted to public use as a park, a library, a city hall and a courthouse, for the purpose of constructing thereon a post office and custom house. The trial court dismissed the petition, United States v. Certain Land, etc., D.C., 55 F. Supp. 555, holding that the selection of the site was arbitrary and an unnecessary act. The Court of Appeals for the Eighth Circuit affirmed, holding that the federal agencies had no power to take that particular parcel of land by condemnation. United States v. Carmack, 8 Cir., 151 F.2d 881. The Supreme Court reversed, holding that the right of eminent domain of the United States is an unlimited power to take whatever property is required to carry out the constitutional purposes and authority of the federal government.*fn5 Of that power, the Court said:

    "* * * These Acts [the General Condemnation Act
  and the Public Buildings Act of 1926] were
  natural means for Congress to adopt in putting
  its constitutional powers into use on a scale
  commensurate with the size of the nation and the
  need of the time. Neither Act imposed expressly
  any limitations upon the authority of the
  officials designated by Congress to exercise its
  power of condemnation in procuring sites for
  public buildings deemed necessary by such
  officials to enable the Government to perform
  certain specified functions. * * *
    "The power of eminent domain is essential to a
  sovereign government. If the United States has
  determined its need for certain land for a public
  use that is within its federal sovereign powers,
  it must

  have the right to appropriate that land.
  Otherwise, the owner of the land, by refusing to
  sell it or by consenting to do so only at an
  unreasonably high price, is enabled to
  subordinate ...

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