Village of DePue v. Banschbach

• Decision Date: 22 June 1916
• Docket Number: No. 10714.,10714.
• Citation: 273 Ill. 574,113 N.E. 156
• Parties: VILLAGE OF DEPUE v. BANSCHBACH.
• Court: Illinois Supreme Court

273 Ill. 574

113 N.E. 156

VILLAGE OF DEPUE

v.BANSCHBACH.

No. 10714.

Supreme Court of Illinois.

June 22, 1916.

Appeal from Bureau County Court; James R. Prichard, Judge.

Condemnation proceedings by the Village of Depue against Charles Banschbach and others. From a judgment of award, the named defendant appeals. Affirmed.Watts A. & Carey R. Johnson, of Princeton, for appellant.

Josef T. Skinner, of Princeton, for appellee.

CRAIG, C. J.

This is an appeal by Charles Banschbach from a judgment of the county court of Bureau county rendered in a condemnation proceeding instituted by appellee, the village of Depue, awarding him the sum of $3,885 as compensation for lands taken and damaged for park purposes by the village. The petition was filed by the village in vacation after the June term, 1915, of the court, to condemn a strip of land containing 28.86 acres in the village, bordering upon what is known as Lake Depue. Several parties were made defendants to the petition as owners or lessees of the property in question. Summons was issued and served upon all defendants, who appeared and entered their motion to dismiss the petition, assigning numerous reasons as grounds for the dismissal of the petition. A hearing was had upon this motion, and it was denied. Appellant excepted to the order denying the motion and took a bill of exceptions of the proceedings had at that time. A jury was then impaneled, and a trial had on the question of the value of the land to be taken and damaged by the proposed improvement. The jury returned a verdict awarding appellant $3,660 for land taken and $225 as damages for land not taken, and to the other defendants, none of whom are appealing, the sum of $6,055, making the total damages awarded for the land taken and damaged $9,940. The record contains no bill of exceptions of the proceedings had before the jury, and that part of the proceedings in the lower court is not before us for review. Motions for a new trial and in arrest of judgment were made and overruled and judgment was entered on the verdict, and the petitioner was allowed until May 1, 1916, in which to exercise its election to pay for and take the property. From that judgment the appellant has prosecuted his appeal to this court.

The village of Depue is located in Bureau county, on what is known as Lake Depue. The territory comprising the village was originally organized as the town of Trenton prior to 1869, and subsequently became the town of Depue, and thereafter, in 1888, was organized as the village of Depue under the general Incorporation Act for Cities and Villages of April 10, 1872 (Laws 1872-72, p. 402). At the present time it has a population of approximately 2,600 persons. Its principal industry is the Mineral Point Zinc Company, which has a large plant there and employs in the neighborhood of 1,000 men. There is no park within its corporate limits, but only a small tract of land on which is located the plant of the city waterworks, which tract is too small and not well suited for park purposes. All of the lands in question are situated in the south half of section 35 in township 16 north, range 10 east, in Bureau county, and border on Lake Depue. The lands are low and swampy, about one-third covered with water, and so situated that they are not well adapted for building purposes. At the time of the institution of the proceedings in question they were used principally for pasture and grazing purposes. On April 1, 1915, the village adopted an ordinance providing for the creating, establishing, laying out, and opening of a public park upon the lands in question. Section 1 of the ordinance provided that a public park should be created, established, opened, and laid out within the corporate limits of the village of Depue, composed of the lands in question, and section 2 provided that the expense of creating, establishing, opening, and laying out such park should be paid for by general taxation. Thereafter the board of local improvements was directed, by resolution, to negotiate with the owners of the property for the purchase of the same. It reported to the village board that it had been unable to agree with the owners of the property as to the amount of compensation to be awarded for the lands to be taken and damaged by the proposed improvement. Thereupon a resolution was adopted directing the institution of this proceeding. On August 12, 1915, a petition was filed to condemn the lands under the Eminent Domain Act (Hurd's Rev. St. 1913, c. 47) alleging the organization of the village of Depue as a municipal corporation under the act of 1872 for the incorporation of cities and villages; the adoption of the ordinance directing that a park be opened and laid out within the corporate limits, composed of the lands in question, a copy of the ordinance being attached to and made a part of the petition; that in order to carry out the provisions of the ordinance it would be necessary to take the property in question, which is needed and required for the purpose of creating, establishing, opening, and laying out said park as set forth in the ordinance; and that petitioner has been unable to agree with the owners of the property as to the amount of compensation to be paid them for the property sought to be taken and appropriated to such use. The petition concluded with the usual prayer for summons, etc.

The principal objections urged are: (1) That the petition does not allege the authority by which the village seeks to condemn the property; (2) that there is no necessity for the creation and establishment of a public park within the village; and (3) that the question of the expenditure of the funds of the corporation for park purposes was not submitted to a vote of the people of such village at an election, as provided by section 1 of the act of 1899 authorizing cities to provide and maintain parks, etc. Hurd's Stat. 1913, p. 449.

The petition alleges the village of Depue is organized as a municipal corporation under the general Incorporation Act for Cities and Villages of 1872, and alleges the adoption of an ordinance by it providing for the improvement. This was sufficient. By paragraph 7 of section 1, art. 5, of that act (Hurd's Stat. 1913, p. 270) cities and villages are authorized ‘to lay out, to establish, open, alter, widen, extend, grade, pave or otherwise improve streets, alleys, avenues, sidewalks, wharves, parks and public grounds, and vacate the same.’ The act is a public act, and the courts are required to take judicial notice of its provisions and of the powers of municipal corporations organized under such act. The power to acquire property for park purposes is expressly granted by that act, and for that reason the allegation in the petition that the village of Depue is organized as a village under that act and has adopted an ordinance providing for the creating and establishing of the improvement was sufficient to show authority in the petitioner to institute a suit to condemn lands for park purposes. Chicago & Northwestern Railway Co. v. Town of Cicero, 154 Ill. 656, 39 N. E. 574;City of Mound City v. Mason, 262 Ill. 392, 104 N. E. 685.

The question of the propriety and necessity for a public park within the village was for its president and board of trustees, and not the courts, and their decision in the matter is final. Where the power to condemn EXISTS, THE RIGHT TO DETERMINE WHETHER OR not it shall be exercised is a legislative question, with which the courts have no concern, and they will not inquire into the propriety or necessity of the exercise of such right (County of Mercer v. Wolff, 237 Ill. 74, 86 N. E. 708;City of Paris v. Cairo, Vincennes & Chicago Railway Co., 248 Ill. 213, 93 N. E. 729), although they may inquire into the propriety of taking the particular property and as to whether or not the amount proposed to be taken is excessive (City of Chicago v. Lehmann, 262 Ill. 468, 104 N. E. 829). The petition alleges the necessity of taking the property in questionfor park purposes, and in this respect its allegations are sufficient.

As to the further contention that no public park can be established until the question of raising funds for that purpose has been submitted to a vote of the people of the village, as provided by the act of 1899, enabling cities to establish and maintain parks, we are of the opinion that the act has no application to the case at bar, for the reason the act, by its express terms, is confined to cities. While it is true, as held in People v. Grover, 258 Ill. 124, 101 N. E. 216, Ann. Cas. 1914B, 212, that the word ‘city’ may include an incorporated town, and that in popular use the chief difference between a city and village is understood to be its size and population, it was also there pointed out that in determining what was intended to be included within the term when used in a statute it was frequently necessary to refer to the context of the act and the objects and purposes for which it was passed. An examination of the Cities and Villages Act shows that in numerous instances acts have been passed in relation to cities which were not intended to apply to villages, while in other instances acts have been passed in relation to villages which were not intended to apply to cities, and that, whenever it was intended that the act should apply alike to both cities and villages, the expression ‘cities, towns and villages' is used in the various provisions of such act. The provision in section 1 was not adopted as a part of the original Cities and Villages Act. It was made the subject of a special act adopted in 1899. By its terms it is expressly limited to cities, and we find nothing in the context of the act which would warrant us in extending its provisions to villages. Where the language of an act is plain, clear, and explicit, and its meaning is neither doubtful nor ambiguous, there is no room for construction, and the courts can neither add to nor...