Appeal from the Appellate Court for the Fourth District; heard
in that court on appeal from the Circuit Court of Sangamon
County, the Hon. George P. Coutrakon, Judge, presiding.
MR. JUSTICE KLUCZYNSKI DELIVERED THE OPINION OF THE COURT:
Rehearing denied March 30, 1979.
This is a condemnation action. The case is here on a certificate of importance from the Appellate Court, Fourth District (59 Ill. App.3d 39), which reversed an order of the circuit court of Sangamon County denying a motion in limine by the State, petitioner for condemnation in this action. The appellate court also remanded the cause to the circuit court with directions, but no two of the three members of the appellate court panel were able to concur as to what the directions should be. Remaining members of the district had recused themselves, so the case could not be submitted to a new panel. Realizing that its mandate would cause the circuit court difficulty, the appellate court issued a certificate of importance, granting the condemnee, Young Women's Christian Association of Springfield (YWCA), the right to appeal to this court as a matter of right (see Ill. Const. 1970, art. VI, sec. 4(c)).
The action was commenced by petition of the State to condemn land and a building owned by the condemnee in Springfield. The Capital Development Board of the State of Illinois, on whose behalf the petition was filed, is acquiring the necessary property rights for construction of a courts complex in Springfield on the block bounded by Capitol Avenue on the north, Jackson Street to the south, Fifth Street on the east, and Fourth Street on the west.
In the preliminary stages of the proceedings in the circuit court, the State filed a motion in limine, the purpose of which was to prohibit the condemnee from introducing evidence of replacement or reconstruction costs. Such evidence would be relevant if the building to be condemned were designated as special-use property. The basis of the State's motion was that the building was not such special-use property, that the circuit court's inquiry therefore should be directed to a determination of the fair market value of the building, and that the evidence should be limited accordingly. The condemnee urged that the cost of substitute facilities should control.
The circuit court ruled that the condemnee is entitled to compensation measured by the cost of substitute facilities. Under the ruling, depreciation of the condemned building would not be considered. In anticipation of an interlocutory appeal under Rule 308 (58 Ill.2d R. 308), which was eventually allowed, the circuit court certified three questions to the appellate court:
"(1) Whether, under the evidence given at the hearing on the Motion and Answer thereto, the use and ownership of the property are such that the just compensation to be awarded for the taking of said property is the fair cash market value of the property at its highest and best use on the date of the filing of the Petition, or whether the fair cash market value is not the legal standard for determining just compensation because the property is of such nature and applied to such special use that it cannot have market value.
(2) Assuming that the property in question is of such a nature and applied to such special use that it cannot have a market value, whether the proper standard for determining just compensation is substitute facilities cost without regard to depreciation.
(3) Assuming that the property is subject to the special use rule and assuming that depreciation is not a proper factor to be considered in determining just compensation, whether the cost of substitute facilities should be based on cost of reproducing the existing facilities." 59 Ill. App.3d 39, 40.
The three members of the appellate court panel expressed varying opinions on these questions. Mr. Justice Webber felt that the condemned building was not of the special-use type, that fair market value should control as to both the land and building, and that the circuit court judgment therefore should be reversed and the cause remanded. Mr. Presiding Justice Green agreed to reverse and remand, but felt that fair market value would not adequately compensate the condemnee because of what he believed to be unique improvements made upon the building. He favored instead a measure of damages whereby the condemnee would receive fair market value for the land and, for the building, the cost of reproduction "minus the percentage of that cost determined to be the percentage of depreciation of the existing building." (59 Ill. App.3d 39, 47.) Mr. Justice Trapp voted to affirm the circuit court's determination that the building was of a special use, that the cost of substitute facilities should control, and that depreciation should not be considered. He also expressed the view that the cost of replacing the existing building should not be the measure of compensation.
In its brief and argument in this court, the condemnee asks us to affirm the judgment of the circuit court and hold that the correct measure of compensation is the cost of substitute facilities. The State contends that fair market value should control or, alternatively, reproduction cost minus depreciation. The condemnee also argues that the appellate court should have affirmed the circuit court's judgment because a majority of the members of the appellate court panel could not reach a decision on the issues presented. We address the latter, procedural question first because we find that it carries jurisdictional implications.
Section 5 of the judiciary article of our constitution provides that a majority of an appellate court division is necessary for a decision (Ill. Const. 1970, art. VI, sec. 5). The reference to "division" of the appellate court must be interpreted as meaning "panel," traditionally consisting of three judges, since only three judges usually consider each case. (See 58 Ill.2d R. 22.) Nonetheless, the votes of two of three judges are required for a decision, and this majority was not reached in this case on the vital issue of what the measure of compensation should be. A similar provision applies to judges of the supreme court, and in Perlman v. First National Bank (1975), 60 Ill.2d 529, we held that an appeal should be dismissed when we are unable to obtain the constitutionally required majority vote. We pointed out that the effect of such a dismissal is the same as affirmance by an equally divided court of the decision under review. It is a conclusive determination of the controversy, but is of no precedential value (60 Ill.2d 529, 530). Relying on Perlman, the condemnee contends that the appellate court should have affirmed the judgment of the circuit court.
We agree that the appellate court should have affirmed the judgment of the circuit court and, in the exercise of our supervisory authority (see Ill. Const. 1970, art. VI, sec. 16), we direct the appellate court to affirm the judgments of the circuit court if again presented with this situation in which an appellate court panel cannot obtain the constitutionally required majority. Under Perlman the decision would have no precedential value. The appellate court's failure to follow this course in the present case would cause us no difficulty were it not for the fact that the case is here on a certificate of importance, and the issuance of such a certificate presupposes a decision by the appellate court (Ill. Const. 1970, art. VI, sec. 4(c)). Because there was no decision by the appellate court in this case, a certificate of importance could not properly be issued. We do not feel, however, that this formal defect ...