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Herget National Bank v. Kenney





Appeal from the Appellate Court for the Third District; heard in that court on appeal from the Circuit Court of Tazewell County, the Hon. John A. Gorman, Judge, presiding.


Defendant, David Kenney, Director of the Department of Conservation, appealed from the judgment of the circuit court of Tazewell County ordering the issuance of a writ of mandamus directing him to institute eminent domain proceedings to determine compensation for certain real estate owned by plaintiff, the Herget National Bank of Pekin, as trustee. In a Rule 23 order (87 Ill.2d R. 23) the appellate court reversed (119 Ill. App.3d 1171), and we allowed plaintiff's petition for leave to appeal (94 Ill.2d R. 315(a)).

One question is raised: Does sovereign immunity bar plaintiff's action to compel the Director of Conservation to institute eminent domain proceedings?

Prior to 1945, the property, consisting of approximately 55 acres, was owned by Eli Haas. Upon his death the property descended to Kittie Helmig, who, although she had been adjudged incompetent in 1940, retained ownership until her death in 1969. She devised the property in fee to her grandchildren subject to a life estate in favor of her daughter, Lucy Galvin. These parties in 1979 conveyed their interest to plaintiff as trustee and retained the beneficial interest in the property.

Prior to 1960, the tract, approximately half swamp and half usable for pasture or crops, abutted Spring Lake on its north and east sides. In 1958, the State began building causeways across the lake for the purpose of increasing the size of the water area. The lake increased in size from 580 to 1,250 acres, and the tract in question became a submerged portion of the enlarged portion of the lake.

During the 1950's, Charles Helmig, the husband and court-appointed conservator for Kittie Helmig, was apparently interested in the expansion of Spring Lake. He developed a subdivision on a portion of a larger parcel, of which the 55 acres were a part. After Spring Lake was expanded, this development was adjacent to it. It appears that Helmig might have intended to execute flood releases but died in 1960 before doing so.

In 1980, the Department of Conservation drained Spring Lake for the purpose of killing the fish population. The lake was immediately refilled and restocked. At this time the Galvin family attempted to prevent the refilling of the lake unless the State purchased the property. Upon refusal by the State to purchase the property, plaintiff instituted this proceeding for mandamus. In defendant's answer he pleaded as an affirmative defense that, by reason of the conduct of the parties, defendant had acquired an irrevocable license to occupy the disputed land. Although the circuit court entered an order granting plaintiff's prayer for a writ of mandamus, the appellate court held that the circuit court was without subject matter jurisdiction, since the cause was barred by the doctrine of sovereign immunity.

Article XIII, section 4, of the 1970 Illinois Constitution provides:

"Except as the General Assembly may provide by law, sovereign immunity in this State is abolished."

This constitutional provision was passed after extensive debate and with full recognition that the General Assembly would have the potential to reinstate sovereign immunity. (3 Record of Proceedings, Sixth Illinois Constitutional Convention 1829-49; 5 Proceedings 3948-52.) Thus, acting under the authority of the 1970 Constitution, the General Assembly enacted Public Act 77-1776, which 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.

This court has consistently held that the determination of whether a suit is against the State is dependent on the issues involved and the relief sought rather than by the formal identification of the parties. (Hudgens v. Dean (1979), 75 Ill.2d 353, 355; Sass v. Kramer (1978), 72 Ill.2d 485, 490-91; Moline Tool Co. v. Department of Revenue (1951), 410 Ill. 35, 37.) As the court in Hudgens stated: "When the State will be directly and adversely affected by the judgment or decree, making the State the real party against whom relief is sought, the suit is against the State." 75 Ill.2d 353, 357.

The issue presented in the instant case is whether the State has an irrevocable license to flood the property in question. The determination of the question inevitably involves the rights of the State. In its judgment order the circuit court found "that defendant has not obtained an irrevocable license for the continued use of the land" and ordered the issuance of a writ of mandamus "compelling defendant to institute eminent domain proceedings for the land of plaintiff taken or damaged by defendant." In reversing that judgment, the appellate court said:

"Without repeating the reasoning of Sass v. Kramer (1978), 72 Ill.2d 485, 381 N.E.2d 975, and Gordon v. Dept. of Transportation (1981), 109 Ill. App.3d 1071, 441 N.E.2d 904, we believe that they fully set forth the constitutional and statutory provisions applicable to this case. Furthermore, we believe they are controlling authorities for the proposition that property rights of the State are in dispute and therefore the action is one against the State ...

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