Chicago v. the Town of Lake

Citation71 Ill. 333,1874 WL 8668
Decision Date31 January 1874
CourtSupreme Court of Illinois


APPEAL from the Circuit Court of Cook county; the Hon. E. S. WILLIAMS, Judge, presiding.

Mr. THOMAS F. WITHEROW, and Mr. C. D. ROYS, for the appellants.

Messrs. SPAFFORD, MCDAID & WILSON, for the appellees.

Mr. JUSTICE CRAIG delivered the opinion of the Court:

This is an appeal from a decree, rendered in the circuit court of Cook county, dissolving an injunction and dismissing the bill of appellants.

It is alleged in the bill, that appellants are the owners of a certain tract of land, in Cook county, known as block B, which they purchased, in 1853, for railroad purposes; that upon the land they have erected freight houses, depots, and laid railroad tracks, side tracks and switches, in different directions, on and across the same, for the convenient handling of cars and freight, and for making connections with each other, and the necessities of their increasing business will require more tracks, side tracks, and more room for standing cars, etc., on the land.

It also appears, from the bill, that the town of Lake is a municipal corporation in the county of Cook, incorporated under special charter, vested with the usual powers of such corporations; that in the latter part of the year 1872, the town adopted article 9, of the general act for the incorporation of cities and villages, approved May 10, 1872, in the manner provided by section 54, of article 9; that the town of Lake, by and through its board of trustees, passed an ordinance to lay and open a public street through a portion of block B; that the town, by its supervisor, has filed a petition in the circuit court of Cook county, in and by which it invokes the law of eminent domain of the State to compel and enforce the opening of the street, in which it asks that just compensation be made to appellants for private property taken or damaged by the opening of the street, and that the damages may be ascertained by a jury, in the manner required by article 9 of the general act.

The bill also alleges, that the opening of the street through block B would destroy, in a great degree, the value of the premises for railroad purposes, for which the land was purchased, and the injury to complainants would be irreparable; that the public good and convenience do not require that the street should be extended through block B; that it will not shorten the distance to parties going either north or south; that even if it should appear that the opening of the street would be a convenience to a few, still, the greater good and convenience require that the same should not be opened, and in the exercise of the right of eminent domain the greater public good must prevail in a court of equity; that if the street should be opened, it would be, practically, useless to the public, by reason of the many railroad tracks on and across the same; that the lives and property of persons attempting to pass over the street would be constantly in peril.

To the bill appellees filed a general demurrer, and it was sustained by the court, and the bill dismissed, and the case is brought here by appeal.

The legislature of the State has delegated the power to the town of Lake to take private property for the purpose of public streets and highways, within the corporate limits of the town. The taking and appropriating property for a public street or highway by a municipality, is a public use in its nature, and can not be questioned or denied. Courts have the right to determine whether the use private property is proposed to be taken and appropriated for is public in its nature or not, but when the use is public, the judiciary can not inquire into the necessity or propriety of exercising the right of eminent domain. That right is political in its nature, and not judicial. It belongs exclusively to the legislative branch of the government, and under our constitution the judiciary have nothing to do with it.

We know of no well considered case where the courts have undertaken to pass upon the necessity or expediency of the exercise of the right of eminent domain, and are well satisfied none can be found.

Of the necessity or expediency of exercising the right of eminent domain in the appropriation of private property to public uses, the opinion of the legislature or of the corporate body or tribunal upon which it has conferred the power to determine the question, is conclusive upon the courts, since such a question is essentially political in its nature, and not judicial; but the question whether the specified use is a public use or purpose, or such use or purpose as will justify or sustain the compulsory taking of private property, is perhaps...

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