City of Mound City v. Mason

• Decision Date: 09 April 1914
• Citation: 104 N.E. 685,262 Ill. 392
• Parties: CITY OF MOUND CITY v. MASON.
• Court: Illinois Supreme Court

262 Ill. 392

104 N.E. 685

CITY OF MOUND CITY

v.MASON.

Supreme Court of Illinois.

Feb. 21, 1914.

Rehearing Denied April 9, 1914.

Appeal from Pulaski County Court; W. S. Dewey, Judge.

Proceeding by City of Mound City to condemn certain real property to obtain earth for the strengthening of the levy system. From a judgment assessing compensation in favor of Hugh A. Mason, he appeals. Reversed and remanded.George B. Gillespie, of Springfield (Fred Hood, of Mound City, and Gillespie & Fitzgerald, of Springfield, of counsel), for appellant.

George E. Martin, C. S. Miller, and Charles L. Rice, all of Mound City, for appellee.

DUNN, J.

This appeal is from a judgment assessing compensation in favor of the appellant in a proceeding under the Eminent Domain Act (Hurd's Rev. St. 1912, c. 47) to condemn his land for the purpose of obtaining earth to raise and strengthen the levee system of the city of Mound City.

[1][2][3]A motion to dismiss the petition for want of power in the petitioner to condemn the property was denied. It should have been allowed. A petition in conformity with the statute granting the right of condemnation is necessary to give the court jurisdiction to proceed under the Eminent Domain Act. It should set forth all the facts necessary to authorize the court to act and should show a clear right to take the land sought to be taken. It should show not only that the property is wanted for a public use, but that the case is within the particular statute under which the proceedings are had. Chicago & Northwestern Ry. Co. v. Galt, 133 Ill. 657, 23 N. E. 425,24 N. E. 674;Harvey v. Aurora & Geneva Ry. Co., 174 Ill. 295, 51 N. E. 163. The petition does not refer expressly to any statute under which it is brought, but states that the petitioner is authorized to construct, maintain, and improve its levees or protective embankments for the purpose of preventing inundations and overflows, and is also authorized and empowered to acquire real estate, by purchase or condemnation proceedings, for right of way for said levees and from which to take materials for the construction of levees and embankments. It also states that it is necessary to raise and strengthen its present levee system for the protection of said city from overflow from the Ohio river, and that it is necessary to acquire certain real estate (which is described and alleged to be owned by the appellant) for the purpose of obtaining earth or other materials with which to construct, widen, raise, strengthen, and improve its levee system.

Counsel for the appellee state in their brief that the proceeding is brought in accordance with the act of June 26, 1913 (Laws of 1913, p. 157). Section 1 of that act provides that all cities, villages, and incorporated towns subject to or in danger of or threatened with overflow or inundation from rivers or other sources shall have power to construct, widen, raise, strengthen, improve, repair, and maintain levees, embankments, and structures, and shall have power for any of such purposes to levy a tax, etc. Section 3 provides that all such cities, villages, and towns are vested with power to purchase, or condemn by the exercise of the right of eminent domain, all such real estate as may be needful for the purpose of constructing levees, protective embankments, and structures, and also for the purpoe of obtaining earth or other materials, either within or without the limits of such municipalities, with which to construct, widen, raise, strengthen, improve, repair, or maintain such levees, protective embankments, and structures. The petition contains no allegation that the petitioner is a city subject to, in danger of, or threatened with, overflow or inundation from a river or other source, or that it has any system of levees or has determined to raise and strengthen any levees, except the inference to be drawn from the statement that it is necessary to raise and strengthen its present levee system for the protection of said city from overflow from the Ohio river. Such an argumentative statement cannot take the place of allegations of the necessary facts.

[4][5] No ordinance of the city was alleged in the petition or shown by the evidence, for the construction, raising, strengthening, or otherwise improving of levees or the taking of any land for such purposes, and it is insisted that such ordinance is necessary as a basis for this proceeding. The powers conferred by the act in question could be exercised only by the city council, which, under the law, has control of the finances and property of the corporation, the appropriation of its money, and the payment of its expenses. the council could act only by means of an ordinance or a resolution, but where a city council has power to act in a given case, and its charter does not prescribe the manner of action, it may accomplish its purpose by resolution as well as by ordinance. Chicago & Northern Pacific R. Co. v. City of Chicago, 174 Ill. 439, 51 N. E. 596;Board of Education v. De Kay, 148 U. S. 591, 13 Sup. Ct. 706, 37 L. Ed. 573;Illinois Savings Bank v. Arkansas City, 76 Fed. 271, 22 C. C. A. 171, 34 L. R. A. 518;City of Crawfordsville v. Braden, 130 Ind. 149, 28 N. E. 849,14 L. R. A. 268, 30 Am. St. Rep. 214. In Chicago & Northern Pacific R. Co. v. City of Chicago, supra, we said (174 Ill. 445, 51 N. E. 598): ‘A resolution or order is not a law, but merely the form in which the legislative body expresses an opinion. An ordinance prescribes a permanent rule of conduct or government, while a resolution is of a special and temporary character. Acts of legislation by a municipal corporation, which are to have continuing force and effect, must be embodied in ordinances, while mere ministerial acts may be in the form of resolutions. It is true that, where the charter of a municipality is silent as to the mode in which the city council shall perform an act, the decision of the council may be evidenced by either a resolution or an ordinance. * * * As an ordinance is required to establish a...