People ex rel. First Nat. Bank of Blue Island v. Kingery

• Decision Date: 05 October 1938
• Docket Number: No. 24306.,24306.
• Citation: 16 N.E.2d 761,369 Ill. 289
• Parties: PEOPLE ex rel. FIRST NAT. BANK OF BLUE ISLAND v. KINGERY, Director of Department of Public Works, etc.
• Court: Illinois Supreme Court

369 Ill. 289

16 N.E.2d 761

PEOPLE ex rel. FIRST NAT. BANK OF BLUE ISLAND

v.KINGERY, Director of Department of Public Works, etc.

No. 24306.

Supreme Court of Illinois.

June 15, 1938.

Rehearing Denied Oct. 5, 1938.

Mandamus proceeding by the People, on the relation of the First National Bank of Blue Island, administrator of the estate of Kate Popp, deceased, substituted as relator on Kate Popp's death, against Robert Kingery, Director of the Department of Public Works and Buildings, to compel defendant to institute proceedings to ascertain compensation due relator for damages occasioned to decedent's land by reason of a separation of grades on a highway. A judgment of the Superior Court for relator was reversed by the Appellate Court, 290 Ill.App. 393, 8 N.E.2d 733, and relator appeals. The judgment of the Appellate Court was vacated and jurisdiction was retained by the Supreme Court, 368 Ill. 205, 13 N.E.2d 271. Robert Kingery having resigned as Director of the Department of Public Works and Buildings, F. Lynden Smith, his successor, was substituted as party defendant.

Judgment of Superior Court affirmed.Appeal from Superior Court, Cook County; James J. Kelly, judge.

Otto Kerner, Atty. Gen. (Earl B. Dickerson and Jerome F. Dixon, both of Chicago, of counsel), for appellant.

Lawlor, Walsh & Bernstein, of Chicago (Edwin D. Lawlor, of Chicago, of counsel), for appellee.

JONES, Justice.

Upon the petition of Kate Popp, the superior court of Cook county awarded a writ of mandamus against Robert Kingery, Director of the Department of Public Works and Buildings, commanding him to institute proceedings under the Eminent Domain act, Ill.Rev.Stat.1937, c. 47, or some other proceeding, for the purpose of ascertaining just compensation for damages to lands owned by the petitioner. The judgment of the superior court was reversed by the Appellate Court. 290 Ill.App. 393, 8 N.E.2d 733. We granted leave to appeal, but, on consideration of the case, found that the Appellate Court had reached its conclusion only upon constitutional grounds, which it had no jurisdiction to do, and we entered an order declaring the judgment of the Appellate Court void and transferred the cause from that court to this court on our own motion.

The defendant filed a motion in the superior court to dismiss the petition. This motion was denied and the defendant elected to stand by his motion and make no further answer. Therefore, all the material allegations contained in the petition are taken as confessed against the defendant.

Kate Popp was the owner of certain parcels of unimproved land at the northeast corner of the intersection of Riverdale road and State bond issue road No. 49, in Cook county. In order to improve the State bond issue road, the said director, Robert Kingery, caused the road adjacent to relator's property to be depressed twenty feet below its level and also caused Riverdale road adjacent to her property to be raised fifteen feet above its level. The changes thus made have cut off and blocked the means of ingress and egress to her lands. Repeated demands were made by her upon the defendant to pay just compensation to her for damages, or to institute a proceeding under the Eminent Domain act to ascertain the amount of her damages, but he has refused to do either.

Section 13 of article 2 of the constitution of the State of Illinois, Smith-Hurd Const. art. 2, § 13, provides that private property shall not be taken or damaged for public use without just compensation. The plaintiff's property has been seriously damaged for the public use and it is admitted that no compensation whatever has been paid her. This provision of the constitution is self-executing and cannot be annulled by non-action of a head of a department. People v. McRoberts, 62 Ill. 38. The defenses urged are that these proceedings are, in effect, a suit against the State and, therefore, cannot be maintained, and that even though the proceedings be deemed not a suit against the State, there is no obligation on the part of the Director of the Department of Public Works and Buildings to bring condemnation proceedings under the Eminent Domain act where the property has already been damaged for public use and none of it had been physically taken.

Our constitution, section 26 of article 4, Smith-Hurd Const. art. 4, § 26, declares that the State of Illinois shall never be made a defendant in any court of law or equity. It will be observed that the State, eo nomine, is not a party to the suit. Neither is the Department of Public Works and Buildings. The suit is against the director of that department. In Noorman v. Department of Public Works, 366 Ill. 216, 8 N.E.2d 637, we had before us a case where the question directly arose as to whether this department comes within the constitutional prohibition. The plaintiff in that...