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Morton Grove Park Dist. v. Amer. Nat'l Bank

OPINION FILED JANUARY 23, 1980.

MORTON GROVE PARK DISTRICT

v.

AMERICAN NATIONAL BANK AND TRUST COMPANY, TRUSTEE, ET AL., APPELLANTS (EDWARD J. ROSEWELL, COUNTY TREASURER, APPELLEE).



Appeal from the Appellate Court for the First District; heard in that court on appeal from the Circuit Court of Cook County, the Hon. Arthur L. Dunne, Judge, presiding.

MR. JUSTICE RYAN DELIVERED THE OPINION OF THE COURT:

American National Bank and Trust Company of Chicago and others (hereinafter referred to as defendants or the condemnees), appeal from an order denying them the income earned on a condemnation award deposited with the treasurer of Cook County, by the condemnor, Morton Grove Park District (Morton Grove), during the time that expired while the condemnees appealed the amount of the award. It is now contended that denying the condemnees the income earned on the money deposited with the treasurer constitutes a taking without just compensation in violation of the Illinois and United States constitutions.

The facts of the case are undisputed. Defendants were the title owners of several parcels of real property in Morton Grove. The park district (not a party to this appeal) filed a petition to condemn the property on December 11, 1972, pursuant to the Eminent Domain Act (Ill. Rev. Stat. 1971, ch. 47, par. 1 et seq.). A jury found the fair market value of the property to be $1 million, and a judgment was entered on the verdict on January 31, 1974. The award, plus $15,478.06, the statutory interest on the award from the date of the judgment until the date of deposit, was deposited by the park district with the county treasurer on April 29, 1974. Pursuant to section 13 of the Act (Ill. Rev. Stat. 1973, ch. 47, par. 13), the court entered an order on May 9, 1974, placing the park district in possession of the land. The order also required a $200,000 surety bond to secure the payment of such compensation as may be finally adjudged as provided in section 13.

Defendants appealed the amount of the award. During the appeal the park district had the possession and use of the condemned property and the treasurer of Cook County held the award. The appellate court affirmed both the determination of value and order transferring possession to the park district pursuant to section 13 of the Act. (Morton Grove Park District v. American National Bank & Trust Co. (1976), 39 Ill. App.3d 426.) This court denied leave to appeal. Defendants then petitioned the trial court for an order upon the county treasurer to pay out the $1,015,478.06 plus interest earned thereon from the date it was deposited until the date of payment to defendants. The award had earned $92,357.08 through investment by the county treasurer. The trial court ordered the $1,015,478.06 paid to defendants on November 10, 1976, but denied defendants' petition for payment of the earnings on the award. The appellate court affirmed the trial court's decision. (67 Ill. App.3d 709.) We allowed defendants' petition for leave to appeal. It is agreed that the award earned $92,357.08.

After just compensation has been determined in a condemnation suit, an award earns interest from the time the judgment is entered until the condemnor pays the award to the county treasurer. When the award, and any statutory interest that has accrued, are deposited with the treasurer, as provided in section 14 of the Act (Ill. Rev. Stat. 1973, ch. 47, par. 14), the statutory and constitutional requirements of just compensation for the property taken are satisfied. (Department of Public Works & Buildings v. Butler Co. (1958), 13 Ill.2d 537, 546.) Section 13 of the Act provides that when the party in whose favor an award has been entered appeals, the condemnor shall, notwithstanding, have the right to use the property upon entering into a bond conditioned on the payment of such compensation as may be finally adjudged. Pursuant to section 13, the trial court in this case entered an order authorizing the park district to take possession of the property upon the filing of a bond in the amount of $200,000, conditioned as required by that section. When the award was paid to the county treasurer and the bond filed as ordered, title to the condemned property vested in the park district and related back to the filing of the petition to condemn. (Chicago Park District v. Downey Coal Co. (1953), 1 Ill.2d 54, 57; Accord, County of Cook v. Vander Wolf (1946), 394 Ill. 521, 528; Forest Preserve District v. Chicago Title & Trust Co. (1932), 351 Ill. 48, 55.) When the park district deposited the award with statutory interest and filed the required bond, the requirement of just compensation from the condemnor with respect to the owners was satisfied. The income earned on the deposited monies should not therefore be considered as additional compensation from the condemnor for the property taken. The park district did all that was required, and its obligation to defendants ended when it made the deposit with the county treasurer and filed the required bond.

The owner of condemned property has a constitutional and statutory right to appeal a judgment in an eminent domain case. (Ill. Const. 1970, art. VI, sec. 6; Ill. Rev. Stat. 1971, ch. 47, par. 12.) However, under sections 10(a) and 14 of the Eminent Domain Act (Ill. Rev. Stat. 1971, ch. 47, pars. 10(a), 14) the condemnee's award is deposited with the county treasurer during the course of an appeal from an award and the money may not be withdrawn by the owner without abandoning all objections to the award, that is, abandoning the appeal. (See County of Cook v. Malysa (1968), 39 Ill.2d 376, 379, where the court stated that eminent domain adheres to the general rule in civil cases that when a judgment has been voluntarily paid or its benefits accepted the question becomes moot.) Thus, the condemnor can terminate its obligation to the owner for interest on the award by paying the amount thereof, plus accrued interest, to the county treasurer, and can divest the owner of the property and enter into possession. However, the owner may not exercise the statutory and constitutional right to appeal without forfeiting the right to use the amount of the award pending the appeal.

In Moll v. Sanitary District (1907), 228 Ill. 633, the court stated that a condemnee who appeals an award and prevails is entitled on retrial to have submitted to the jury empaneled to fix just compensation the claim for interest for the time the condemnee was deprived of possession of his property, as an additional element of compensation. In dicta, relied on by the county treasurer, the court stated that if the appeal had been unsuccessful the condemnee would not be entitled to interest because the loss of the appeal demonstrates that he should have accepted the award and not appealed. Moll was decided under the Illinois Constitution of 1870, which did not grant an absolute right to appeal until it was amended in 1962. However, in the present case there is a constitutional right to appeal. Also, here the owners are seeking to recover the money the award earned while held by the county treasurer, and not interest on the award as an additional element of just compensation for the land taken.

In Illinois the payment of money to the county treasurer acts as a substitute for the condemned property under section 14 of the Eminent Domain Act. (Forest Preserve District v. Chicago Title & Trust Co. (1932), 351 Ill. 48, 55; Department of Public Works & Buildings v. Porter (1927), 327 Ill. 28, 34.) The funds held by the county treasurer pursuant to section 14 are private funds belonging to the condemnees, and as the treasurer admits in his brief, the condemnees may withdraw them at any time as long as they are willing to forgo appeal. (County of Cook v. Vander Wolf (1946), 394 Ill. 521, 528.) Defendants contend they are entitled to the money earned on the deposit.

Concerning the earnings of money deposited with the county treasurer the legislature has provided:

"All earnings accruing on any investments or deposits made by the County Treasurer whether acting as such or as County Collector, of county monies as in this Act is defined, shall be credited to and paid into the County Treasury for the Benefit of the county corporate fund to be used for county purposes, except where by specific statutory provisions such earnings are directed to be credited to and paid to a particular fund." (Ill. Rev. Stat. 1971, ch. 36, par. 22.1.)

"The term `county moneys' shall include all monies to whomsoever belonging, received by or in possession or control of the incumbent of the office of county treasurer when acting as such or in any other official capacity incident to his incumbency of the office of county treasurer." (Ill. Rev. Stat. 1971, ch. 36, par. 17.)

Relying on the literal meaning of these statutes, the trial court and the appellate court held that the money earned on the funds held by the county treasurer is to be deposited into the county corporate fund and not awarded to the condemnee. (67 Ill. App.3d 709.) This means that the condemnee may not appeal the amount of the award unless he is willing to sacrifice the income earned on the award while the appeal is pending. We do not agree with this interpretation of the aforementioned statutory scheme.

Under the interpretation given to this statutory scheme by the appellate court, a government entity is entitled to condemn private property and then pay the awarded just compensation into the hands of another government entity for the benefit of the public while the private individual exercises his constitutional right to appeal what he may feel to be an unjust award. It is not just that the loss of income should be cast on the owner and the public be granted a windfall. The law by which the loss is occasioned is no act of the owner but an act of government that the owner has no power to repeal or modify so as to avoid the loss. (Moll v. Sanitary District (1907), 228 Ill. 633, 637.) Here the owners were deprived of their property and deprived of the use of the award which stood in place of the property taken for 30 months while ...


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