Pub. Serv. Co. of Northern Illinois v. Recktenwald

• Decision Date: 17 December 1919
• Docket Number: No. 12983.,12983.
• Citation: 290 Ill. 314,125 N.E. 271
• Parties: PUBLIC SERVICE CO. OF NORTHERN ILLINOIS v. RECKTENWALD et al.
• Court: Illinois Supreme Court

290 Ill. 314

125 N.E. 271

PUBLIC SERVICE CO. OF NORTHERN ILLINOIS

v.RECKTENWALD et al.

No. 12983.

Supreme Court of Illinois.

Dec. 17, 1919.

Petition by the Public Service Company of Northern Illinois, praying the court to ascertain compensation to be paid for a tract of land owned by William Recktenwald and another. Judgment for plaintiff, and defendants appeal.

Affirmed.

Appeal from Lake County Court; Perry L. Persons, Judge.

E. V. Orvis, of Waukegan (R. J. Dady, of Waukegan, of counsel), for appellants.

Isham, Lincoln & Beale, of Chicago (William A. Morrow and Cyrus H. Adams, Jr., both of Chicago, of counsel), for appellee.

CARTWRIGHT, J.

The appellee, the Public Service Company of Northern Illinois, filed in the county court of Lake county its petition, setting forth that it was a corporation organized under the act of 1872 (Laws 1871-72, p. 296), entitled ‘An act concerning corporations,’ to manufacture, produce, distribute, and sell gas and electricity, to distributewater, and to distribute heat, and was a public utility within the meaning of the act entitled ‘An act to provide for the regulation of public utilities' (Laws of 1913, p. 459); that the Public Utilities Commission, after hearing upon complaint, entered order finding that the construction, operation, and maintenance of an extension of petitioner's electric transmission line ought to be made, and was necessary to promote the convenience of the public and to secure adequate service or facilities, and directing the petitioner to construct, operate, and maintain such extension from its substation No. 82 in the city of Evanston northwesterly and in general along the eastern side of and adjoining the existing right of way of the Chicago & Northwestern Railway Company to a point specified in the petition; that said transmission line would consist first of a single row, and later, when conditions might warrant, a double row, of steel towers supporting high-tension wires; and that it was unable to agree with the various owners and persons interested in the tracts of land therein described as to the amount of compensation to be paid them for the taking and use thereof; and the petition prayed the court to cause such compensation to be ascertained according to law. Among the tracts of land described in the petition was ‘a strip of land eighty-five (85) feet wide east of and immediately adjoining the right of way of the Chicago & Northwestern Railway Company, in and through the south half of the northeast quarter of the northeast quarter of section thirty-four (34), township forty-three (43) north, range twelve (12) east of the third principal meridian, in Lake county, Illinois,’ and the appellants, William Recktenwald and Charlotte Recktenwald, were named as owners. The appellants entered their special appearance, and, alleging that they were the owners in fee simple of the tract of land, moved the court to dismiss the petition. After a hearing the motion was denied, and appellants then entered their general appearance and filed a crosspetition, alleging damage to land not taken, and engaged in a trial, which resulted in a verdict fixing the compensation. the appellants made a motion in arrest of judgment, which was denied, and judgment was entered, from which this appeal was prosecuted,

Nine grounds of the motion to dismiss were stated therein, but those which are now relied upon by the appellants are that the petitioner had not made an effort to agree with the appellants upon the compensation to be paid to them before filing the petition, and that the petitioner had no right to exercise the power of eminent domain.

The tract of land was owned jointly by the appellants, and the petitioner, by a letter addressed to the appellant William Recktenwald, inclosing a copy of the order of the Public Utilities Commission and a description of the property,offered him in cash at the rate of $350 per acre. No reply was made to the letter, and there was a sufficient effort on the part of the petitioner to agree with William Recktenwaid. Pittsburg, Cincinnati, Chicago & St. Louis Railway Co. v. Gage, 286 Ill. 213, 121 N. E. 582. The appellants were joint owners of the land, and the offer was for the whole title, perhaps in the belief that the interest of Charlotte Recktenwald was an inchoate right of dower. The offer was, in substance, to the owners of the tract; but in any view of the matter, if the petitioner could not agree with William Recktenwald for his undivided interest, no further attempt to negotiate was necessary.

The principal argument in support of the errors assigned is that the petitioner had no right to exercise the power of eminent domain, and this is based upon the following propositions:

‘(1) That the act under which the petitioner was organized did not confer the right; (2) that sections 50 and 59 of the act providing for the regulation of public utilities are obnoxious to and in contravention of section 13 of article 4 of the Constitution, which provides that ‘no act hereafter passed shall embrace more than one subject, and that shall be expressed in the title’; (3) that the provision of section 59 for the exercise of the power of eminent domain is not expressed in or covered by the title of the act, or, if so expressed, the title embraces more than one subject; (4) if the provisions of sections 50 and 59 are expressed in the title, they violate the Constitution by delegating to the Public Utilities Commission the power to delegate to a public utility the right to exercise the power of eminent domain; (5) if those sections are constitutional, they do not confer upon corporations created prior to the passage of the act the right to exercise the power of eminent domain, but simply regulate the exercise of such power by a corporation already having it.'

The General Corporation Act, under which the appellee is organized, does not confer the right to acquire private property by the exercise of the power of...