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Goldman v. Zimmer

NOVEMBER 8, 1965.

ROBERT H. GOLDMAN, ET AL., AS MEMBERS OF THE BOARD OF EDUCATION OF SPRINGFIELD SCHOOL DISTRICT NO. 186, SANGAMON COUNTY, PLAINTIFFS-APPELLANTS,

v.

CHARLES N. ZIMMER, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Sangamon County; the Hon. CREEL DOUGLASS, Judge, presiding. Judgment reversed and remanded, with directions.

CRAVEN, J.

Rehearing denied December 16, 1965.

This is an appeal from an order of the circuit court of Sangamon County granting the defendant's post-trial motion for arrest of judgment and dismissing a petition for condemnation. The issue here for determination is the validity of the purported exercise of the power of eminent domain by the plaintiff board of education.

The petition for condemnation was filed in May of 1963. In it was the allegation that the plaintiffs were the members of the Board of Education of Springfield School District No. 186, that the same was a special charter school district, that there existed statutory authority for the exercise of the power of eminent domain, and the petition set forth the land sought to be taken. The intended use was stated to be for "a school site and for school purposes including but not limited to warehouse and administrative facilities." The failure of the parties to agree on a price was alleged, as was defendant's ownership of the land sought.

Thereafter, in July of 1963, a motion to dismiss the petition was filed which, in substance, asserted that the intended use was not a use specified in sec 32-4.13 of art 32 of the School Code of 1961 (Ill Rev Stats 1961, c 122, § 32-4.13), i.e., not as a site for a school building or an addition to a school building, nor as a playground for school children.

Thereafter plaintiffs amended the petition to add the allegation that the land was to be taken "`for a site for a school building.'" The motion to dismiss was then denied.

In November of 1963, the defendant filed another motion to dismiss, asserting that no bona fide attempt had been made to agree on a price, that the land was not necessary for the purpose specified, and that the amount sought to be taken was excessive. It was further urged in the motion that part of the premises was to be used for parking facilities, a use alleged to be beyond the authority of the school board. The motion also asserted that there had been no official action taken by the plaintiffs to authorize the condemnation proceeding.

Prior to a hearing on this motion, the defendant took the depositions of two of the plaintiffs, the school superintendent and the assistant school superintendent in charge of buildings and maintenance. These depositions were received in evidence at the hearing on the second motion to dismiss over the objections of the plaintiffs.

In January of 1964, the motion to dismiss was denied. The defendant thereupon made demand for a copy of the resolution authorizing the condemnation proceeding, and likewise made demand for a copy of the plans and specifications of the building proposed to be erected on the premises. In response to this demand the plaintiffs filed a certified copy of a resolution of the board of education, which said resolution recited that the board, at an executive conference, had authorized and directed its attorney to proceed with the condemnation proceedings, that the board was informed of the progress of said proceedings by the attorney, and further contained this language:

"NOW THEREFORE BE IT RESOLVED by the Board of Education of Springfield School District No. 186, Sangamon County, Illinois, that the action of its attorney, in compliance with the oral instructions, in filing the condemnation proceeding against Charles N. Zimmer for the real estate described above and more specifically described in said legal proceedings, be and the same is hereby fully ratified and accepted officially in the same manner and to the same extent as if this technicality had been complied with prior to the filing of said proceeding."

No plans or specifications were filed, the answer to the demand for the same being that there were none.

Another motion to dismiss was then filed by the defendant resulting in a further amendment to the complaint by the plaintiffs, as a result of which this motion was also denied.

The defendant then filed a cross-petition for a determination of damages to land not taken. The cause proceeded to trial and the jury returned a verdict fixing damages on the cross-petition at $2,000 and compensation for the land taken at $8,000. Judgment was entered on this verdict.

The defendant, by his post-trial motion, reasserted the matters presented by the earlier motions, and the post-trial motion was allowed, the ...


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