APPEAL from the Appellate Court for the Second District; heard
in that court on appeal from the Circuit Court of Lake County;
the Hon. GLENN K. SEIDENFELD, Judge, presiding.
MR. JUSTICE WARD DELIVERED THE OPINION OF THE COURT:
Rehearing denied June 1, 1973.
The plaintiff, Village of Deerfield, filed a petition in the circuit court of Lake County to condemn approximately 127 acres of land lying outside of but immediately adjacent to the plaintiff's corporate limits. The petition represented that the purpose of the acquisition was for the establishment of a playground or recreational center as allegedly authorized under division 95 of the Illinois Municipal Code (Ill. Rev. Stat. 1971, ch. 24, pars. 11-95-1 through 11-95-14). The defendants, who are owners of certain parcels included in the land sought to be condemned, filed a motion to dismiss the petition on the ground, among others, that the plaintiff was without the statutory power to condemn the property. The circuit court dismissed the petition, and its decision was affirmed by the appellate court. (132 Ill. App.2d 74, 268 N.E.2d 67.) We allowed the plaintiff's petition for leave to appeal.
Section 11-95-1 of the Municipal Code (Ill. Rev. Stat. 1971, ch. 24, par. 11-95-1) provides as follows:
"The corporate authorities of every municipality with a population of less than 500,000 may dedicate and set apart for use as playgrounds, or recreation centers, any land or buildings which are owned or leased by the municipality and are not dedicated or devoted to another and inconsistent public use. Such a municipality, in such manner as provided by law for the acquisition of land or buildings for public purposes by the municipality, may acquire or lease land or buildings, or both, within or beyond the corporate limits of the municipality, for playgrounds and recreation centers."
The parties agree that section 11-95-1 authorizes acquisition by purchase, as is indicated by the further provision in that section that no land shall be acquired nor any appropriation made for its acquisition except after approval by a referendum. Neither section 11-95-1 nor any of the other sections of division 95 expressly authorizes the acquisition of property by the exercise of the power of eminent domain, however. The only other provision referring specifically to a particular mode by which real property may be acquired is found in section 11-95-5, which authorizes the acceptance of a grant or devise of such property.
It is the plaintiff's contention, however, that the power granted by section 11-95-1 to acquire land cannot be limited to acquisition by purchase or other forms of voluntary transfer, but must be understood as including the power to acquire by condemnation. The plaintiff bases this contention in part upon the language in section 11-95-1 which empowers the municipality to acquire property "in such manner as provided by law for the acquisition of land or buildings for public purposes by the municipality." That phrase, according to the plaintiff, is to be read as incorporating the provisions of another section of the Municipal Code, section 11-61-1 (Ill. Rev. Stat. 1971, ch. 24, par. 11-61-1), which reads:
"The corporate authorities of each municipality may exercise the right of eminent domain by condemnation proceedings in conformity with the provisions of the constitution and statutes of the State of Illinois for the acquirement of property useful, advantageous or desirable for municipal purposes or public welfare including property in unincorporated areas outside of but adjacent and contiguous to the municipality where required for street or highway purposes by the municipality."
As originally enacted in 1949 (Laws of 1949, p. 478) the section did not contain the closing portion which now follows the word "welfare." That portion was added in 1961 (Laws of 1961, p. 2425). The defendants suggest that the 1961 amendment represented a legislative limitation of the eminent domain power conferred by section 11-61-1 to property lying within the corporate limits, except in the case of property required for street or highway purposes. Plaintiff, on the contrary, maintains that the final clause now contained in section 11-61-1 cannot be construed as precluding the condemnation sought here, since section 11-95-1 expressly extends the power of acquisition to property lying outside the municipal boundaries.
So far as we are advised, neither section 11-61-1 nor section 11-95-1 has received any prior judicial construction on the point at issue, and the matter is admittedly not free from difficulty. The antecedent of section 11-95-1 was an act of 1915 entitled "An Act to provide for the acquisition, equipment, conduct and maintenance of public playgrounds in and by cities having a population of less than one hundred fifty thousand (150,000)." (Laws of 1915, p. 312.) Section 5 of that act provided: "All cities, villages and towns voting to adopt the provisions of this act are hereby vested with power and authority to purchase, accept by gift, or condemn by the exercise of the right of eminent domain of such real estate as the voters may elect to acquire as herein provided." The act of 1915 was repealed in 1921 as part of a new act which was almost identical to that of 1915. (Laws of 1921, p. 674, sec. 8.) Section 5 of the 1921 act contained the same provisions as section 5 of the 1915 act.
In 1923 the 1921 act on playgrounds was amended. (Laws of 1923, p. 256.) Section 2 of the 1923 act contained language similar to that found in section 11-95-1 of the present Municipal Code authorizing a municipality to acquire or lease property within or beyond the municipal limits for the purpose of establishing playgrounds and recreation centers "in such manner as may now or hereafter be authorized or provided by law for the acquisition of lands or buildings for public purposes by such municipality." Neither section 2 nor any other section of the 1923 act continued the express authorization which had been contained in the prior legislation to acquire property through the power of eminent domain. Section 87-4 of the 1941 Revised Cities and Villages Act repealed the 1921 act governing playgrounds. (Laws of 1941, vol. 2, p. 408.) Section 57-1 of the 1941 revision (Laws of 1941, vol. 2, p. 252) carried forward, with some changes in language, the provisions of section 2 of the act as amended in 1923, and corresponds to the present section 11-95-1 enacted in 1961.
We note that in other instances where an act authorizes municipalities to engage in an activity which may require the acquisition of land, the act itself will typically contain its own provisions with respect to the power of eminent domain. (See, e.g., Ill. Rev. Stat. 1971, ch. 24, pars. 11-65-3, 11-68-4, 11-71-1, 11-94-1; cf. Department of Public Works and Buildings v. Ells, 23 Ill.2d 619, 621.) This is also true with respect to other acts authorizing the acquisition of land for park or recreational purposes. Thus the act empowering certain Forest Preserve Districts to acquire land for recreational facilities provides that they may do so by purchase, gift or condemnation. (Ill. Rev. Stat. 1971, ch. 57 1/2, par. 15a3.1, 15a3.8.) Park Districts, which are also given the power to furnish playgrounds, recreation centers and other recreational facilities, are authorized to acquire land by gift, purchase, or condemnation, but with the proviso that the power of condemnation may be exercised only as to land situated within the district. Ill. Rev. Stat. 1971, ch. 105, pars. 5-2, 8-1(b), 8-10.
However, under the plaintiff's argument there was a broad power of condemnation for municipal purposes which existed under section 11-61-1 prior to its amendment in 1961. The amendment was not designed, the argument is, to repeal or lessen the broad municipal authority to condemn. It was intended to insure a power to condemn, for street purposes, land outside but adjacent and contiguous to the municipality. The argument is persuasive. Taking the language of the amendment we do not consider it was calculated to repeal the broad power to condemn which existed under the statute before amendment. There is an express power given a municipality under section 11-95-1 to acquire property either within or beyond the municipal limits "in such manner as provided by law for the acquisition of land or buildings for public purposes." Taking this, together with the power to condemn under section 11-61-1, the plaintiff had the power to condemn beyond its limits.
The plaintiff also maintains that the mere use of the term "acquire" in section 11-95-1 in itself implies the power to acquire by eminent domain. In view of our holding that the eminent domain power exists under section ...