Appeal from the Circuit Court of Winnebago County, Seventeenth
Judicial Circuit; the Hon. JOHN S. GHENT, JR., Judge, presiding.
Affirmed in part and reversed in part and remanded, with
MR. JUSTICE SEIDENFELD DELIVERED THE OPINION OF THE COURT.
The only issue is whether the defendant owners are entitled to interest under the Illinois Interest Act (Ill Rev Stats 1967, c 74, § 3) on monies deposited by petitioner pursuant to a motion for immediate vesting of title under Ill Rev Stats 1967, c 47, § 2.6, which the owners chose not to withdraw prior to the conclusion of proceedings.
The condemnation petition was filed February 5th, 1968. The "quick take" order was entered on February 15th, 1968. The trial court set preliminary just compensation at $11,372.
Thereafter petitioner deposited that sum plus the required additional 25 percent, or a total of $14,215, and the court entered its order vesting petitioner with title and authorizing possession of the property on and after April 4th, 1968.
The jury returned a verdict of just compensation in the amount of $17,602. A judgment order was entered on the verdict on June 26th, 1969, providing that interest be paid to defendants at the rate of 5 percent per annum on the $14,215 "quick take" deposit from date of possession, April 4th, 1968, to date of judgment, June 26th, 1969; and further that interest be paid at the rate of 6 percent per annum on the difference between the deposit and the verdict from date of possession to date of judgment.
Thereafter, on July 16th, 1969, pursuant to a petition by defendants to withdraw funds, the court entered an order authorizing withdrawal of preliminary just compensation in the amount of $11,372. Defendants did not withdraw any funds under this order.
We hold that the defendant property owners are entitled to interest only on the difference between the deposit and the verdict as provided in part in the judgment order below. The remaining portion of the order providing for interest on the amount of the preliminary deposit which the defendants chose not to withdraw is, in our opinion, erroneous.
Defendants have argued that the Illinois Constitution (Art II, §§ 2, 13) provide for just compensation and due process; and that requiring an owner to withdraw funds deposited upon a "quick take" violates these provisions in that he is forced to invest at his peril for a time uncertain to receive a fair interest return.
The provisions of section 2.6 of the Eminent Domain Act, as material here, show a clear legislative intent to exclude interest under section 3 of the Interest Act where interest is payable under the Eminent Domain Act:
"The petitioner shall pay, in addition to the just compensation finally adjudged in the proceeding, interest at the rate of six percent (6%) per annum upon:
"(a) Any excess of the just compensation so finally adjudged, over the amount deposited by the petitioner . . . from the date on which the parties interested in the property surrendered possession of the property in accordance with the order of taking, to the date of payment of such excess by the petitioner.
"When interest is allowable as provided in Subsection (a) of this Section, no further interest shall be allowed under the provisions of Section 3" (of the Illinois Interest Act). *fn1
Defendants' argument that the interest provisions under the Eminent Domain Act are not exclusive in all circumstances is conceded. However, the authorities cited by defendants support the conclusion that when interest is payable under section 2.6 of the Eminent Domain Act, no interest is allowed under the Interest Act.
In Department of Public Works and Buildings v. Larson, 22 Ill.2d 425, 176 N.E.2d 753 (1961), the final verdict was less than the amount deposited under the "quick take" order. The Supreme Court held that since no interest was payable under section 2.6(a), there being no excess of verdict over amount deposited (and 2.6(b) being inapplicable also), section 3 of the Interest Act was applicable and the owner ...