City of Chicago v. Jewish Consumptives' Relief Soc. of Chicago

• Decision Date: 10 December 1926
• Docket Number: No. 17479.,17479.
• Parties: CITY OF CHICAGO v. JEWISH CONSUMPTIVES' RELIEF SOC. OF CHICAGO.
• Court: Illinois Supreme Court

323 Ill. 389

154 N.E. 117

CITY OF CHICAGO

v.JEWISH CONSUMPTIVES' RELIEF SOC. OF CHICAGO.

No. 17479.

Supreme Court of Illinois.

Oct. 28, 1926.

Rehearing Denied Dec. 10, 1926.

Condemnation proceeding by the City of Chicago, in trust for the use of schools, against the Jewish Consumptives' Relief Society of Chicago. From the judgment, defendant appeals.

Reversed and remanded.

Appeal from Circuit Court, Cook County; Philip L. Sullivan, judge.

Alvin E. Stein, of Chicago (Pines & Newmann, of Chicago, of counsel), for appellant.

Frank S. Righeimer, of Chicago (Ralph W. Condee, of Chicago, of counsel), for appellee.

THOMPSON, J.

This appeal is from a judgment of the circuit court of Cook county entered in favor of appellant, the Jewish Consumptives' Relief Society of Chicago, a corporation organized not for pecuniary profit, in a condemnation proceeding brought in the name of the city of Chicago, as trustee of property used for school purposes.

The petition in this case was filed by the board of education of the city of Chicago. The petition names the ‘city of Chicago, in trust for the use of schools,’ as the petitioner and appellant and others as defendants. Appellant contends that the petition should have been dismissed because it was brought by a petitioner that had no legal existence, or, if it be considered that the petitioner is the city of Chicago, a municipal corporation, because the proceeding could not be instituted, without the direction of the city council.

[2] Section 1 of the act enabling boards of education to exercise the right of eminent domain provides:

‘Whenever any lot or parcel of land shall be needed by any * * * school district, as a site for building or for any educational purpose, and compensation for such lot or parcel of land cannot be agreed upon between the owner or owners thereof and the * * * board of education, * * * of such * * * school district so needing such lot or parcel of land, then such * * * board of education, * * * of such * * * 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.’ Cahill's Stat. 1925, p. 2232.

Section 132 of the School Act, which deals with boards of education in cities exceeding 100,000 inhabitants, provides:

‘The board of education may acquire, by purchase, condemnation or otherwise, real estate for any and all school purposes. Condemnation proceedings for the purpose of acquiring such property shall be conducted in the name of the city, in trust for the use of schools.’ Cahill's Stat. 1925, p. 2178.

Prior to 1917, section 132 provided that the board of education, ‘with the concurrence of the city council,’ might institute condemnation proceedings, but when the statute was amended the words requiring the concurrence of the city council were omitted. Where the Legislature enacts an amendatory statute providing that a certain section shall be amended so as to read as repeated in the amendatory act, all such portions of the old section as are not repeated in the new section are repealed without any express words for that purpose. Merlo v. Johnston City Coal Co., 258 Ill. 328, 101 N. E. 525. It must be held that the Legislature intended to make some change in the law, when the amendment was made in 1917 (Laws 1917, p. 723), by omitting the phrase ‘with the concurrence of the city council’ (Lyons v. People's Bank, 317 Ill. 44, 147 N. E. 398), and the only change it could have intended by such omission was to give the board of education authority to institute condemnation proceedings without any action on the part of the city council. The board of education is authorized by the statute to agree with the parties interested in the land upon the compensation to be paid for a school site, and, in case of failure to agree, it may proceed to have such compensation determined in the manner which may be, at the time, provided by law for the exercise of the right of eminent domain. Banks v. School Directors, 194 Ill. 247, 62 N. E. 604.

Under the statute, the city council has nothing to do with bargaining for the lands needed for school purposes, nor does it have anything to do with the institution of the condemnation proceeding. The board of education is given the right to bring the condemnation proceeding in the name of the city, and it is not required to have the consent of the city to use its name. The reason the proceeding must be brought in the name of the city is that the title to real estate used for school purposes is in the city as trustee. As the property condemned cannot be taken until the compensation awarded has been paid, it is immaterial to appellant whether this payment is made by the board of education in the name of the city of Chicago as trustee or otherwise. Trustees of Schools v. McMahon, 265 Ill. 83, 106 N. E. 486. If the board of education fails to make payment of the compensation awarded within the time named by the order entered by the court, and the court enters an order requiring the petitioner to pay costs, expenses, and reasonable attorney's fees of the defendant paid or incurred by such defendant in defense of the petition, such judgment for costs and expenses would, under section 19 of the Costs Act (Smith-Hurd Rev. St. 1925, c. 33), be entered against the board of education, for whose use the suit was brought. The petition was properly filed by the board of education in the name of the city of Chicago, as trustee.

By the statute under which this proceeding is brought it is provided that if the school authorities cannot agree with the owner of the land selected upon the amount to be paid him therefor, they may proceed in the manner provided in the act providing for the exercise of the right of eminent domain. Section 2 of this act (Smith-Hurd Rev. St. 1925, c. 47), authorizes the filing of the petition where the compensation to be paid for the property sought to be appropriated cannot be agreed upon by the parties interested. The petition filed in this case alleges an endeavor and inability on the part of appellee to agree with appellant upon the compensation to be paid for the lands in question. This allegation is denied by the answer of appellant, and the claim of appellant that no effort was made to agree with it upon the compensation for the property in question is made the basis of a motion to dismiss the petition. Where the landowner goes to...