Rich v. the City of Chicago.A1

• Decision Date: 30 September 1871
• Citation: 59 Ill. 286,1871 WL 8040
• Parties: ARTHUR D. RICH et al.v.THE CITY OF CHICAGO.a1
• Court: Illinois Supreme Court

59 Ill. 286

1871 WL 8040 (Ill.)

ARTHUR D. RICH et al.

v.THE CITY OF CHICAGO.a1

Supreme Court of Illinois.

September Term, 1871.

OPINION TEXT STARTS HERE

APPEALS from the Superior Court of Cook county; the Hon. JOSEPH E. GARY, Judge, presiding.

Mr. EDWARD ROBY, for the appellants.

Mr. M. F. TULEY, city counsel, for the appellee. Mr. JUSTICE MCALLISTER delivered the opinion of the Court:

These cases purport to arise upon proceedings instituted by the corporate authorities of the city of Chicago, for the condemnation of land, in order to widen Michigan Avenue from Twenty-second to Thirty-second street, in the city.

Application was made at the March term, 1870, of the Superior Court of Chicago, for judgment upon the collector's report, and judgment ordered, from which an appeal was taken to this court.

The questions presented, which we propose to consider, being common to all of the cases, they will, consequently, all be treated as one case.

The first point made, questions the sufficiency of the oath taken by the commissioners. The 6th section of chapter 7, of charter, (Gary's Laws 1866, p. 62,) declares that, “before proceeding to make said assessment, the commissioners shall be sworn faithfully to execute their duties according to the best of their ability.”

The oath which was taken, not only contains the very language just quoted, but goes further, and specifies certain duties, but not all, which they were required to perform in the premises. These specifications being consistent, as far as they went, with the oath which they were required to take, can not vitiate the proceeding.

The second objection is, that it was not sufficiently shown that the newspaper in which certain notices were claimed to have been published, had been duly designated as the corporation newspaper.

There was, at least, prima facie evidence that the “Chicago Republican,” the paper in question, was the corporation newspaper. The charter, in every instance except one, where notices are required to be published, says, that they shall be published in the “corporation newspaper.” This paper was conducted as the corporation newspaper, and the fact seems to have been notorious. All official acts of the city, required to be published, had, for a long period of time, been published in it; so that, as affecting the public and third persons, proof that the paper in question was conducted notoriously as the corporation newspaper, and so recognized by the city authorities, was prima facie sufficient without introducing the resolution of the council designating it as such.

All rules of evidence are adopted for practical purposes in the administration of justice, and must be so applied as to promote the ends for which they were designed. Wherefore the general rule, that the best evidence of which the case, in its nature, is susceptible, must be produced, is subject to exceptions where the general convenience requires it. “Proof, for example, that an individual has acted notoriously as a public officer, is prima facie evidence of his official character, without producing his commission or appointment.” 1 Greenlf. Ev. sec. 83.

The third objection assails the foundation of the entire proceeding, and is one of a graver character. The appellants' counsel insists, that the judgments should all be reversed, on the ground that the provisions of the city charter, relative to the taking of private property for public use, are unconstitutional and void, because they purport to vest the board of public works and the common council of the city of Chicago with authority to inaugurate proceedings, in their discretion, for taking such property; to determine all preliminary facts, and fix the compensation to be made; to effectuate, by their own acts, the condemnation of the property of the citizen, and divest him thereof; and their decision is made final and conclusive. This, it is claimed, is the exercise of judicial authority, which, by the division of the powers of the government by the State constitution, is expressly prohibited to all departments of the government not belonging to the judicial; neither the board of public works nor common council can be said to belong, in any sense, to the judicial department. On the other hand, the counsel for the corporation insists, that none of the guarantees of the constitution, as to the inviolability of private property, have any application to the exercise of the right of eminent domain; that it is the attribute of political sovereignty, an inherent political right, whose exercise is an act of public administration, and the form and manner of its performance is such as the legislature may prescribe; that “the State, through the legislature, is only restricted in the exercise of the power by the express limitation on the power, eo nomine, contained in the constitution, to-wit: the making of just compensation.” He claims that, notwithstanding this limitation upon the power, it is a subject resting entirely within legislative discretion, and beyond the domain of the judicial department, for he says, that “the constitutional provisions, as to the division of the powers of government, have no application to the exercise of the right of eminent domain.”

If we correctly understand the position of the counsel, it is that of legislative supremacy over private property, taken or applied to public use, as absolute as that asserted and conceded on behalf of the British parliament. The absolutism of the English parliament is fully asserted in the following decision: In speaking of turnpike acts, paving acts, etc., Lord KENYON said: “If the legislature thought it necessary, as they do in many cases, they would enable the commissioners to award satisfaction to the individuals who happen to suffer. But if there be no such power, the parties are without remedy, provided the commissioners do not exceed their jurisdiction.” Governor, etc. v. Meredith, 4 Term R. 795.

We had supposed, that the restraints which have been placed upon the supremacy of legislatures over the rights of private property, was a distinguishing feature of the American from the English system.

The right to “just compensation,” required by our constitution to be made as a condition precedent to the exercise of the right of eminent domain, is of little value if the legislature may vest the power of final adjudication in any sort of a tribunal it chooses. Of what value would all the vaunted rights of freemen be, if the legislature could clothe every petty magistrate in the land with authority to pass final decrees of forfeiture of such rights as caprice, malice, or popular clamor, might dictate?

Rights of persons, and of property, may be recognized in the theory of government as fundamental and sacred; may even be solemnly enunciated in the constitution; still, so long as they exist only in contemplation of law, and are left without the adequate means for their protection and enforcement, they are of no more practical value to the individual than the most barren abstractions of theorists.

The decisions of other States have been cited to show that, in choosing the instrumentalities through which compensation shall be ascertained, the discretion of the legislature has no limit. We can say, with confidence, that the constitutions of some of these States are unlike ours. To those of some of the other States, whose decisions are referred to, we have not access, but, from the decisions themselves, must conclude that they are essentially different. We will take, for example, the language of the supreme court of Pennsylvania, quoted by the counsel for the city: “The assessment by the canal commissioners,” say the court, “is as fully authorized by the constitution as an assessment by any other tribunal. A sovereign State is not liable to an action at law against her consent, and the right of trial by jury has no existence in such case. The mode of assessment rests with the legislature, and the common law courts have no authority to question the justice of the decrees of tribunals clothed with power to make final adjudication on the subject.” Segat v. Commonwealth, 19 Penn. St. R. 460.

Here, the award is characterized as a “decree”--a “final adjudication of the subject”--and the canal commissioners are termed a tribunal, authorized by the constitution. But where, among all the provisions of the constitution of 1848, under which the charter of Chicago was passed, will be found any authority to create such a tribunal?

The commissioners of the board of public works are mere ministerial officers, and the common council a quasi legislative body. Whence does the legislature derive authority to create either, or both, into a tribunal, to hear, and finally determine, questions of law and fact, to pass decrees, and make formal adjudication of the subject?

The counsel says, by virtue of an inherent political right--the attribute of political sovereignty--the power of public administration upon private property, whenever the public might require its appropriation. He says: “The right of eminent domain is inherent in sovereignty, and exists dehors the constitution, and no provision of a constitution, which, by its terms, does not refer to that right, has been held by the courts to be any limitation upon the legislature as to the mode in which the power is to be exercised.”

There is no doubt, but the right in question is inherent in sovereignty, like the power of taxation; and, without constitutional restraints, the only security which the citizen would have from an unjust and oppressive exercise...