APPEAL from the Circuit Court of Lee County; the Hon. JOHN W.
RAPP, JR., Judge, presiding.
MR. JUSTICE ABRAHAMSON DELIVERED THE OPINION OF THE COURT:
Rehearing denied March 19, 1973.
The Illinois State Toll Highway Authority (the Authority) brought an action on June 28, 1971 in the circuit court of Lee County to acquire by eminent domain certain parcels of real estate and a temporary drainage easement relating to an extension of the east-west route of the Northern Illinois Toll Highway from Aurora, Illinois, to Rock Falls, Illinois. Defendants moved to dismiss, and the Authority filed a motion for immediate vesting of title pursuant to the quick-take provision of the Eminent Domain Act. (Ill. Rev. Stat. 1969, ch. 47, par. 1, et seq.) After a hearing the trial court granted the Authority's quick-take motion and denied defendants' motion to dismiss.
Defendants appeal pursuant to Supreme Court Rule 307(a)(7). (Ill. Rev. Stat. 1971, ch. 110A, par. 307(a)(7).) The issues raised are: (1) Whether the debt limitation set by the Toll Highways Authority Act (Ill. Rev. Stat. 1969, ch. 121, par. 100-8(f)), was violated by the Authority; (2) whether the Authority's decision to proceed with the East-West Extension was made at a public meeting; (3) whether the proposed Extension is violative of the Environmental Protection Act (Ill. Rev. Stat. 1971, ch. 111 1/2, par. 1002, et seq.), so as to nullify the Authority's right to condemn defendants' property; (4) whether the Authority attempted to agree on compensation prior to filing this action; and (5) whether the taking of land to provide public access to an otherwise land-locked parcel is a public use within the meaning of the Eminent Domain Act.
Before directing our attention to these issues it is appropriate to take up at this point defendants' motion, filed in this court just five days before the case was set for oral argument, requesting leave to file their reply brief instanter. The Authority objected, urging denial of the motion, pointing to defendants' failure to file their reply brief some four months prior thereto when it was due by extension of time, and to their delay in filing or seeking to file their reply brief until just before oral argument. We took defendants' motion and the Authority's objection thereto under advisement with the case.
Defendants' motion to file their reply brief is hereby allowed. However, we emphasize our action should not be construed as condoning defendants' disregard of Supreme Court Rule 343(a) (Ill. Rev. Stat. 1971, ch. 110A, par. 343(a)), and the order of this court extending the time for filing their reply brief. In view of the fact that defendants are represented by counsel, it was he who had the responsibility to comply with that rule and order; he is reprimanded for his failure to do so.
Defendants contend that when the Authority's petition to condemn was filed the Authority exceeded its indebtedness on June 1, 1967 by almost $35,000,000, and it therefore lost its power to condemn. *fn1
• 1, 2 The Toll Highways Authority Act sets forth in Section 100-8 (Ill. Rev. Stat. 1967, ch. 121, par. 100-8), the general powers granted to the Authority. By paragraph (f) thereof the Authority is given the power:
"To acquire, construct, relocate, operate, regulate and maintain a system of toll highways through and within the State of Illinois. However, the Authority does not have the power to acquire, operate, regulate or maintain any system of toll highways or toll bridges or portions of them (including but not limited to any system organized pursuant to Division 108 of Article 11 of the Illinois Municipal Code) in the event any of the following alternatives exists at the time the proposed acquisition, operation, regulation or maintenance of such system is to become effective:
a) the principal or interest on bonds or other instruments evidencing indebtedness of the system are in default;
b) the principal or interest on bonds or other instruments evidencing indebtedness of the system have been in default at any time during the 5 year period prior to the proposed acquisition;
c) the system has outstanding indebtedness in excess of that outstanding on June 1, 1967."
It is significant that the first sentence includes the grant of power to "acquire, construct, relocate, operate, regulate and maintain" the toll highway system, while the second sentence negates the power to acquire, operate, regulate or maintain any system of toll highways in the event of the existence of the alternatives listed as a), b), and c) "at the time the proposed acquisition, operation, regulation or maintenance of such system is to become effective"; thus, conspicuously omitting the words, "construct" and "construction" (as well as "relocate" and "relocation" with which we are not concerned). The use of certain words in one instance by the legislature, and different words in another, indicate that different results were intended. (Nelson v. Union Wire Rope Corp., 31 Ill.2d 69, 100.) Obviously, therefore, the second sentence of paragraph (f) was not intended to apply to construction of new toll highways.
Moreover, we agree with the trial court that by its references to the "system" in sub-paragraphs a), b), and c) of paragraph (f) the legislature intended to limit the acquisition of a system of toll roads and toll bridges (such as the Chicago Skyway). Since no "system" with outstanding indebtedness is being acquired, ...