City of East St. Louis v. La. St. John.

• Decision Date: 30 June 1868
• Citation: 1868 WL 5024,47 Ill. 463
• Parties: CITY OF EAST ST. LOUISv.LOUISIANA ST. JOHN.
• Court: Illinois Supreme Court

47 Ill. 463

1868 WL 5024 (Ill.)

CITY OF EAST ST. LOUIS

v.LOUISIANA ST. JOHN.

Supreme Court of Illinois.

June Term, 1868.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Clinton county; the Hon. SILAS L. BRYAN, Judge, presiding.

The opinion fully presents the facts.

Mr. WM. H. UNDERWOOD, for the appellant.

Mr. E. SOUTHWORTH, for the appellee.

Mr. JUSTICE WALKER delivered the opinion of the Court:

This was an application by the city of East St. Louis to condemn and appropriate a lot belonging to appellee, for the purpose of erecting a city prison. Appellant claims to derive authority to condemn and appropriate this property for the purpose indicated, under the fourth article of the city charter, adopted on the 16th day of February, 1865. (Sess. Laws, 352.) It declares that “The city shall have power to acquire, to open and to lay out public grounds, or squares, streets, alleys and highways, and to alter, widen, contract, straighten and discontinue the same. * * * They shall cause all streets, alleys and highways, or public squares or grounds laid out by them, to be surveyed, described and recorded in a book to be kept by the clerk, showing accurately and particularly the proposed improvements, and the real estate required to be taken, and the same, when opened and made, shall be public highways and public squares.”

The second clause of the same article declares that “when it shall be necessary to take private property for opening, altering or laying out any street, lane, avenue, alley, public square, or other public grounds, the corporation shall make a just compensation therefor to the person whose property is so taken, and if the amount of such compensation can not be agreed on, the Mayor shall cause the same to be assessed by a jury of six disinterested freeholders of the city.”

The eleventh section of Article 13 of our constitution declares: “Nor shall any man's property be taken or applied to public use without the consent of his representatives in the General Assembly, nor without just compensation being made to him.” This provision recognizes the power to take and apply private property for public use, upon two indispensable conditions: first, that it must be by the consent of the General Assembly, manifested by a law regularly adopted, and secondly, that a just compensation shall be paid for the property thus appropriated. If either of these prerequisites is wanting, the authority must fail. And in the exercise of this delicate and important power, the legislature may, under proper restrictions and safeguards, delegate its exercise, no doubt, to municipal corporations. But whether exercised by the State or other bodies to whom the power has been delegated, the purpose must be for a use public in its nature, and not public merely because it is declared to be such. This was designed to be a limitation upon the otherwise transcendent legislative power of the General Assembly. And the power being, for...