Broard of Educ. of Cicerostickney Tp. High Sch. v. City of Chicago, 30876.

• Citation: 402 Ill. 291,83 N.E.2d 714
• Decision Date: 19 January 1949
• Docket Number: No. 30876.,30876.
• Parties: BROARD OF EDUCATION OF CICEROSTICKNEY TP. HIGH SCHOOL, HIGH SCHOOL DIST. NO. 201 v. CITY OF CHICAGO et al.
• Court: Supreme Court of Illinois

402 Ill. 291

83 N.E.2d 714

BROARD OF EDUCATION OF CICEROSTICKNEY TP. HIGH SCHOOL, HIGH SCHOOL DIST. NO. 201

v.CITY OF CHICAGO et al.

No. 30876.

Supreme Court of Illinois.

Jan. 19, 1949.

Appeal from Superior Court, Cook County; Walter R. O'Malley, judge.

Condemnation proceeding by the Board of Education of Cicero-Stickney Township High School, High School District No. 201, against the City of Chicago, wherein the Trustees of Schools, Township 39, North, Range 13, Cook County, were named as additional defendants on ground that they had declined to institute condemnation proceedings when so requested by the Board of Education. From a judgment of dismissal, petitioner appeals.

Judgment affirmed.

CRAMPTON, J., dissenting.

John J. Sherlock and Fred A. Gariepy, both of Chicago (John Spalding, of Chicago, of counsel), for appellant.

Benjamin S. Adamowski, Corp. Counsel, of Chicago (John J. Mortimer, John C. Melaniphy and Francis S. Lorenz, all of Chicago, of counsel), for appellee.

DAILY, Justice.

March 30, 1944, the Board of Education of Cicero-Stickney Township High School, High School District 201, Cook County, filed a petition in the superior court of Cook County seeking to condemn certain lands within its district for school purposes. The defendant named therein was the city of Chicago, a municipal corporation, the alleged owner of the land sought to be condemned. The city filed a motion attacking the sufficiency of the petition, but no further pleadings or proceedings immediately followed. On April 8, 1948, the board of education, after leave of court was granted, filed an amended petition seeking the same relief but naming the Trustees of Schools, Township 39 North, Range 13, Cook County, (hereinafter referred to as ‘trustees,’) as additional defendants, on the ground that the trustees had declined, failed and neglected to institute the condemnation proceedings when so requested by the board of education. In response to the amended petition the city filed a pleading in the nature of a traverse and a motion to dismiss. The trustees filed an answer in which they alleged that they had been requested to be substituted as the sole petitioner in the cause, had declined to do so, but had agreed to join with the board of education as nominal coplaintiffs, and that the board had failed and refused to name the trustees as coplaintiffs. The trustees further answered that petitioner instituted these proceedings in 1944, without the knowledge of the trustees; that no request had ever been made upon them to condemn the property described; and that they denied that they had ever declined, failed or neglected to perform any duty in connection therewith.

After the trustees' answer was filed the petitioner presented two motions to the trial court, one to compel the trustees to answer attached interrogatories, and the second was directed to all parties to admit certain facts. The trustees answered the interrogatories and admitted the facts, the purport of which was that while the trustees had no objection to the acquisition of the land, or in being joined as coplaintiffs, they did not deem it advisable that they should be substituted as the sole petitioner where they were asked to adopt and ratify all the acts of the petitioning board of education.

The trial court granted the city's motion to dismiss on July 13, 1948, and when petitioner elected to stand by its amended petition, final judgment of dismissal was entered, from which the board of education here appeals. The trustees have not appealed from the judgment, nor have they filed an appearance in this court.

The amended petition alleges that the petitioner is a body politic, organized and existing under and by virtue of the laws of this State relating to schools; that a school site has been selected and buildings erected thereon for use as a township high school and related schools under the supervision of the petitioner; that the defendant, the city of Chicago, is the owner of a tract of land, containing 36.75 acres more or less, situated in the city of Berwyn, and wholly within petitioner's school district; that said tract is needed by petitioner for educational purposes and uses in connection with its present schools, among which is the use of ten acres for an athletic field; that petitioner cannot agree with the city of Chicago on compensation for said property and is unable to purchase the same; that the tract lies wholly without the city of Chicago and is part of a parcel of land known as the Gage Farm, and is used by the city as a nursery to supply its parks and grounds with trees and shrubs; that no statutory law allows the city to hold such land other than in a proprietary capacity; that said tract is held by the city subject to petitioner's right to acquire it for educational purposes; and that the city of Chicago is the only party or person interested in said tract as owner or otherwise. The prayer of the petition asks that just compensation be ascertained and that such general relief as provided by statute be granted.

The principal grounds set forth in the city's traverse and motion to dismiss the amended petition are substantially as follows: (1) that petitioner is not the proper party plaintiff; (2) that the petitioner fails to show its authority to maintain the action; (3) that the petitioner's lack of authority to institute condemnation proceedings is not cured by making the trusteesof schools a party defendant; and, (4) that the petitioner, even if it were a proper party, cannot condemn property already put to a public use.

Most stress is laid by the appellee, the city of Chicago, on its contention that the appellant, board of education, has not the legal right to bring this suit in its own name, and that appellant cannot be the sole petitioner in an eminent domain proceeding. Appellee contends that the trustees of schools of the township wherein the land sought is situated are the only authority who can institute and maintain a suit to condemn land for school purposes. This court has so held in Banks v. School Directors, 194 Ill. 247, 62 N.E. 604; Trustees of Schools v. McMahon, 265 Ill. 83, 106 N.E. 486;Schuler v. Wilson, 322 Ill. 503, 153 N.E. 737, 48 A.L.R. 1027. Counsel for appellant accedes to our holdings that the trustees are the proper party to maintain such a proceeding, but contends that by virtue of the facts alleged in the amended petition, a situation is raised which takes this case from under the general rule, and that it, as board of education, should be allowed to proceed.

This court's decisions that the trustees are the sole authority empowered to prosecute eminent domain proceedings are all based on the proposition that the trustees take and hold title to all school land, and that it is the trustees who obtain title when compensation is awarded and paid. In the recent case of Carter Oil Co. v. Liggett, 371 Ill. 482, 21 N.E.2d 569, we held that the trustees and not the school directors have the power to grant oil leases, and stated that the trustees of schools are the proper plaintiffs in eminent domain cases. The general rule was therein stated to be that the trustees of schools are invested with the title to school houses and school sites, and the school directors invested with control and supervision of schools.

The findings of this court that the board ef education is not the authority empowered to prosecute eminent domain proceedings may be said to have been strengthened by recent legislation. Prior to 1945, when the cases of Banks v. School Directors, 194 Ill. 247, 62 N.E. 604;Trustees of Schools v. McMahon, 265 Ill. 83, 106 N.E. 486, and Schuler v. Wilson, 322 Ill ,503, 153 N.E. 737, 48 A.L.R. 1027, were decided, the statute authorizing eminent domain relief for school purposes provided that in case the compensation for the property sought to be acquired could not be agreed upon ‘then such trustees, board of education, or other corporate authority of such university, college, township high school, or other educational institution, or school district, shall have the power to have such compensation determined in the manner provided by law for the exercise of the right of eminent domain.’ Ill.Rev.Stat. 1943, chap. 122, par. 345. In Schuler v. Wilson, 322 Ill. 503, 153 N.E. 737, 48 A.L.R. 1027, referred to above, we specially noted that the holding there and the holdings of the cases which it followed were all rendered when the statute provided that the board of education was one body who had the power to have the compensation determined. Despite that fact we held that the trustees, alone, could maintain the proceeding for the reasons previously noted. The School Code, as revised in 1945 and as in effect when appellant filed its amended petition, no longer retains the words ‘board of education’ in the sentence above referred to, but now states: ‘the corporate authority of the educational institution or school district may have the compensation determined in the manner provided by law for the exercise of the right of eminent domain.’ Ill.Rev.Stat. 1947, chap. 122, par. 14-7. We cannot say that the legislature, by eliminating the words ‘board of education’ from its revision of the law, intentionally deprived the board of education of any power previously conferred upon it, for actually they did not have such power under this court's interpretation of the previous statutes. It must be observed, however, that the revision, by specifically eliminating the board of education as one body having the right to have compensation fixed, does weaken any argument of appellant tending to support its power to maintain this proceeding.

Even though this cause had been instituted and was pending when the School Code was revised in 1945, the amended petition was not filed until 1948 and is governed by the new act. The present pleading is not designated as an amendment to the original petition and does not relate thereto by reference...