Appeal from the Circuit Court of Kane County, the Hon. Barry
E. Puklin, Judge, presiding.
MR. JUSTICE RYAN DELIVERED THE OPINION OF THE COURT:
Plaintiff, Walter F. Sass, filed an action in the circuit court of Kane County against the defendant, John Kramer, Secretary, Department of Transportation, State of Illinois (Department), to quiet title to and for a writ of possession of land over which the People of the State of Illinois had acquired an easement for a public highway by virtue of a dedication dated August 10, 1932, and executed by plaintiff's predecessors in title. The State had paid the then owners of the fee title to the property the sum of $6,500 for the easement, and a highway bypass for U.S. Route 20 and Illinois Route 47 was constructed on part of the easement. Later, the Department determined to realign the intersection and the bypass was no longer used. In 1974, plaintiff indicated to the Department that he would like to acquire the State's interest in the unused easement. When the terms of the transfer could not be agreed upon, plaintiff contacted his representative in the General Assembly. A bill was introduced and enacted by the General Assembly (Pub. Act 79-1020), providing for the release of the State's easement upon payment of the fair appraised value of the State's interest. The Department had the property appraised and notified plaintiff, who refused to pay the appraised price. In September 1976 plaintiff filed this action. The circuit court of Kane County held Public Act 79-1020 unconstitutional and entered an order quieting title in plaintiff, extinguished the rights of the People of the State Illinois in the easement, and issued a writ of possession in favor of plaintiff. The appeal came directly to this court under our Rule 302(a) (58 Ill.2d R. 302(a)), because of the trial court's holding that the statute (Pub. Act 79-1020) was unconstitutional.
The defendant contends this action is in fact a suit against the State of Illinois and is barred by the statute which proscribes making the State of Illinois a party to an action in any court (Ill. Rev. Stat. 1973, ch. 127, par. 801). Because we agree with the defendant's contention, it is not necessary for us to consider the other issues decided by the trial court.
Section 26 of article IV of the Constitution of 1870 provided:
"The State of Illinois shall never be made defendant in any court of law or equity."
Although decisions of this court such as Molitor v. Kaneland Community Unit District No. 302 (1959), 18 Ill.2d 11, eliminated or modified the concept of sovereign immunity as to various governmental entities, under the constitutional provision sovereign immunity of the State itself remained intact. In fact, it has been suggested that the doctrine of sovereign immunity was traditional and would have been applicable to the State, in Illinois, even in the absence of section 26. (G. Braden & R. Cohn, The Illinois Constitution: An Annotated and Comparative Analysis 232 (1969).) In the constitutional convention of 1970, the General Government Committee, in explaining its proposal concerning sovereign immunity, pointed out that the removal of section 26 of article IV of the 1870 Constitution without more would create an ambiguity and posed the questions: Would removal of the constitutional limitation affirmatively create a right of action against the State in the courts> of Illinois? Would such omission itself constitute a waiver of the State's sovereign immunity? Or would such omission operate only to remove the constitutional limitation on the choices of the forum available to the legislature, leaving intact the State's common law immunity? (6 Record of Proceedings, Sixth Illinois Constitutional Convention 676 (Proceedings)). Thus, the committee proposed that the new constitution specifically abolish sovereign immunity. (6 Proceedings 677.) The committee proposal as modified as to language became section 4 of article XIII of the Constitution of 1970, which provides:
"Except as the General Assembly may provide by law, sovereign immunity in this State is abolished."
The General Assembly thereafter enacted Public Act 77-1776, which became effective January 1, 1972, the same date as is provided in section 1(e) of the transition schedule of the 1970 Constitution as the effective date of section 4 of article XIII. Public Act 77-1776 provides:
"Except as provided in `An Act to create the Court of Claims, to prescribe its powers and duties, and to repeal An Act herein named', filed July 17, 1945, as amended, the State of Illinois shall not be made a defendant or party in any court." (Ill. Rev. Stat. 1973, ch. 127, par. 801.)
Thus, the General Assembly, acting under the authority of the 1970 Constitution, specifically prohibited making the State of Illinois a defendant or party in any court.
We must now consider whether in the present suit the State of Illinois is a defendant or a party in this case within the statutory proscription. Under the previous decisions of this court we conclude that it is.
Although the State is not named a party to this action, this court has held this was not necessary to constitute a violation of section 26 of article IV of the 1870 Constitution. The law applicable to this question as it relates to this case has on numerous occasions been stated and can be found in the following cases: E.H. Swenson & Son v. Lorenz (1967), 36 Ill.2d 382; Georgeoff v. State (1965), 32 Ill.2d 534; Moline Tool Co. v. Department of Revenue (1951), 410 Ill. 35; Monroe v. Collins (1946), 393 Ill. 553; Posinski v. Chicago, Milwaukee, St. Paul & Pacific R.R. Co. (1941), 376 Ill. 346; Schwing v. Miles (1937), 367 Ill. 436; Noorman v. Department of Public Works & Buildings (1937), 366 Ill. 216; See Comment, 15 De Paul L. Rev. 340, 342-44 (1966). See also G. Braden & R. Cohn, The Illinois Constitution: An Annotated and Comparative Analysis 233 (1969).
In summary, these cases hold that the determination of whether or not the State is a party to a suit is not one of formal identification of the parties as they appear in the record, but instead depends upon the issues involved and the relief sought. The constitutional inhibition against making the State of Illinois a party to a suit cannot be evaded by making an action nominally one against the servants or agents of the State when the real claim is against the State of Illinois itself and when the State of Illinois is the party vitally interested. As noted below, the easement had been dedicated to the People of the State of Illinois. "Since the property of the State is involved, the State is directly and ...