City of East Peoria v. Group Five Development Co.

• Decision Date: 20 November 1981
• Docket Number: A,No. 54510,No. 514,514,54510
• Citation: 429 N.E.2d 492,57 Ill.Dec. 594,87 Ill.2d 42
• Parties: , 57 Ill.Dec. 594 The CITY OF EAST PEORIA, Appellee, v. GROUP FIVE DEVELOPMENT CO. et al. (Community College Districtppellant).
• Court: Illinois Supreme Court

Page 492

429 N.E.2d 492

87 Ill.2d 42, 57 Ill.Dec. 594

The CITY OF EAST PEORIA, Appellee, v. GROUP FIVE DEVELOPMENT CO. et al. (Community College District No. 514, Appellant).

No. 54510.

Supreme Court of Illinois.

Nov. 20, 1981.

Mishael O. Gard and Frederick A. Johnson, of Swain, Johnson & Gard, Peoria, for appellant.

Samuel G. Harrod and Daniel M. Harrod, of Harrod Law Firm, P. C., Eureka, for appellee.

THOMAS J. MORAN, Justice:

The City of East Peoria (City) filed a petition to construct a local improvement for road purposes across land partly owned by the appellant, Community College District No. 514 (District). The circuit court of Tazewell County dismissed the City's petition. The appellate court reversed and remanded (90 Ill.App.3d 729, 46 Ill.Dec. 32, 413 N.E.2d 472), holding that sections 9-2-14 and 9-2-15 of the Illinois Municipal Code (Code) (Ill.Rev.Stat.1977, ch. 24, pars. 9-2-14, 9-2-15) authorized the City to take public property for the purpose of a local improvement. We granted leave to appeal.

There is but one issue: May the City, under the Code, condemn property already devoted to a public use?

Pursuant to an ordinance adopted on January 2, 1979, the City sought to construct a new four-lane highway as a local improvement. Construction of the highway would be financed by a special assessment. The proposed improvement would extend over two miles of land, part of which was owned by the District, a body corporate and politic of the State of Illinois.

The City filed a petition in the circuit court requesting, inter alia, that the court ascertain the just compensation for property to be taken or damaged in connection with the local improvement. One of the party defendants was the District. Pursuant to the District's motion to dismiss, the court dismissed the City's petition on the ground that it lacked authority to condemn public property for local improvements. The city's subsequent motion to vacate this order was denied, and it appealed.

The appellate court held that the legislature could, and did, authorize the taking of public property by one governmental unit from another. It did so on the basis that in 1933, the legislature amended sections of "An Act concerning local improvements" (Act) to include the words "or public" property.

The District argues that property already devoted to a public use cannot be taken unless the legislature expressly, or by necessary implication, indicates this intent.

The City contends that the legislature, by including the words "or public," expressed a clear intent to allow municipalities to condemn property devoted to public use. It asserts there is no other reasonable explanation for including the words "or public."

When originally adopted, the Act provided for the assessment of just compensation where a municipality condemned private property for the purpose of local improvements. The Act was interpreted as only granting authority for the taking of private property. (City of Moline v. Greene (1911), 252 Ill. 475, 479, 96 N.E. 911.) Subsequent cases adhered to this rule. (See, e. g., City of Chicago v. Roth (1929), 334 Ill. 132, 134, 165 N.E. 627.) Since the taking power under the Act was deemed general, public property could not be subject to condemnation. "The general rule is, that such (public) property cannot be taken and appropriated to another and different use unless the legislative intent to so take it has been manifested in express terms or by necessary implication." (City of Moline v. Greene (1911), 252 Ill. 475, 477, 96 N.E. 911; see Department of Public Works & Buildings v. Ells (1962), 23 Ill.2d 619, 620, 179 N.E.2d 679.) Although the Act did not provide for the taking of public property, there was no question that the legislature had authority to allow municipalities to condemn property devoted to a public use. 252 Ill. 475, 477, 96 N.E. 911. See City of Edwardsville v. County of Madison (1911), 251 Ill. 265, 267, 96 N.E. 238.

In 1933, the legislature amended certain sections of the Act so as to insert the words "or public" to modify the word "property." The amended provisions, inter alia, were codified in the 1961 Code as sections 9-2-14 and 9-2-15. These sections provide, in relevant part:

"If the ordinance provides for improvements which require the taking or damaging of property, the proceeding for making just compensation therefor shall be as described in Sections 9-2-15 through 9-2-37. Such a proceeding also shall be governed by the remaining sections of this Division 2, so far as not in conflict with Sections 9-2-15 through 9-2-37." Ill.Rev.Stat.1977, ch. 24, 9-2-14.

"Whenever any local improvement ordinance is passed by the corporate authorities of any municipality, to be paid for wholly or in part by special assessment, or by special taxation, the making of which will require that private or public property be taken or damaged for public use, the municipality, either in that ordinance or by subsequent order, shall designate some officer to file a petition in the circuit court of the county in which the municipality is situated * * *. Such petition shall be filed in the name of the municipality, praying that steps may be taken to ascertain the just compensation to be made for private or public property to be taken or damaged for the improvement or purpose specified in the ordinance, and to ascertain what property will be benefited by the improvement, and the amount of those benefits." (Emphasis added.) Ill.Rev.Stat.1977, ch. 24, par. 9-2-15.

It is well settled that, in construing a statute, the language should be given its plain and ordinary meaning. (Franzese v. Trinko (1977), 66 Ill.2d 136, 139, 5 Ill.Dec. 262, 361 N.E.2d 585.) The intent of the legislature should be determined and given effect. (Western National Bank v. Village of Kildeer (1960), 19 Ill.2d 342, 350, 167...