Kine v. Defenbaugh
| Decision Date | 30 September 1872 |
| Citation | 1872 WL 8308,64 Ill. 291 |
| Parties | JOSEPH A. KINEv.JAMES F. DEFENBAUGH et al. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of Livingston county; the Hon. CHARLES H. WOOD, Judge, presiding.
Mr. CHARLES J. BEATTIE, for the appellant.
Messrs. PILLSBURY & LAWRENCE, for the appellees.
This proceeding was originally commenced by the commissioners of highways of the town Reading, for the purpose of laying out and establishing a public road which, when constructed, would pass over certain lands owned by the appellant. From the action of the commissioners laying out the road, the appellant prayed an appeal under the provisions of the statute to three supervisors of the county, who, upon the hearing, affirmed their action in all things except as to the assessment of damages which the appellant would sustain by reason of the construction of the road across his lands. In this respect the action of the commissioners was reversed, and a new assessment made.
The record of the proceedings was brought before the circuit court on a writ of certiorari. On the hearing the court found no error and dismissed the cause.
So far as we are able to discover from an inspection of the record the proceedings establishing the road were all regular and substantially in conformity with the statutes then in force.
The proceedings having been instituted since the adoption of the new constitution, the only question that we deem material to be considered is, whether the commissioners of highways or the supervisors, on appeal, could rightfully assess the damages which the appellant would sustain by reason of the construction of the road across his premises.
The principal inquiry, therefore, is, whether the statute under which the assessment was made is not in conflict with our present constitution, and the assessment for that reason void.
In the 13th section of Article 2, it is provided that: “private property shall not be taken or damaged for public use without just compensation; such compensation, when not made by the State, shall be ascertained by a jury, as shall be prescribed by law.”
The act under which the assessment was made was plainly in conflict with this provision of the constitution, and must be held, so far as it authorizes the commissioners of highways, or the supervisors, on appeal, to assess damages, to have been repealed or rendered inoperative by the adoption of ...
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