persons.

But where part of a tract was taken, all consequential damage to the remaining tract, measured by the difference between its fair cash market value before and after the taking, was and still is, under the constitution of 1870, held to be a taking."" For the part actually taken, the owner is entitled to receive its fair cash market value.

What constitutes damage. Under the constitutions of 1818 and 1848, compensation was allowed only when property was taken. The construction placed upon this by the court made the test the actual physical invasion of the property affected. To this provision, the constitution of 1870 added the words "or damaged", with a view to afford relief in those cases where no recovery had previously been allowed because there had been no physical injury although the property may have been rendered less valuable. The court, in allowing compensation for the damage to property by cutting off access from that property to the street except by stairs, construed the expanded provision of the constitution of 1870 as follows: "In all cases, to warrant a recovery it must appear there has been some direct physical disturbance of a right, either public or private, which the plaintiff enjoys in connection with his property, and which gives to it an additional value, and that by reason of such disturbance he has sustained a special damage with respect to his property in excess of that sustained by the public generally. In the absence of any statutory or constitutional provisions on the subject, the common law afforded redress in all such cases, and we have no doubt it was the intention of the framers of the present constitution to require compensation to be made in all cases where, but for some legislative enactment, an action would lie by the common law."43 Recovery has been allowed for the depreciation in value of property caused by constructing a sidewalk above the street level and fourteen inches higher than the level of the first floor of a building on that property." The physical injuries and inconveniences that result from a railroad dividing farm property as to water, pasture, timber and improvements," together with the noise, smoke, soot, cinders and vibration caused by the operation of trains," if buildings are near enough to be affected, are all elements of special damages for which compensation may be had. The danger to stock and of loss by fires and increased cost of insurance" may be shown if the market value of property is affected thereby. In the case of elevated railways, or other structures recovery may be had for the obstruction of light and air,50 and the interference with free access to the street and the view.51 This construction includes all cases actionable at common law except where property is damaged under the police power. The non-existence of common law liability, however, does not in itself defeat the constitutional right to compensation.52

Not every injury to private property which may affect its value, can be made the basis for a recovery. It must be shown as to noise, dust, smoke and disturbance from the operation of trains that a special damage results

42 C. B. & N. R. R. Co. v Bowman, 122 Ill. 595 (1887); I. C. R. R. Co. v Turner, 194 Ill. 575 (1902).

43 Rigney v City of Chicago, 102 111. 64 (1882).

44 Chapman v City of Staunton, 246 Ill. 394 (1910).

45 C. P. & St. L. Ry. Co. v Blume, 137 Ill. 448 (1891); C. T. T. R. R. Co. v Bugbee, 184 Ill. 353 (1900).

46 C. & I. R. R. Co. v Hopkins, 90 Ill. 316 (1878); I. C. R. R. Co. v Town of Normal, 175 Ill. 562 (1898); C. B. & N. R. R. Co. v Bowman, 122 Ill. 595 (1887).

47 C. N. S. S. Ry. Co. v Payne, 192 Ill. 239 (1901); C. & C. C. & D. Co. v Morawetz, 195 Ill. 398 (1902); I. C. R. R. Co. v Turner, 194 Ill. 575 (1902).

48 I. I. & M. Ry. Co. v Ring, 219 Ill. 91 (1905); C. S. Ry. Co. v Nolin, 221 Ill. 367 (1906).

49 I. I. & I. R. R. Co. v Stauber. 185 Ill. 9 (1900).

50 Doane v Lake St. El. R. R. Co., 165 Ill. 510 (1897); Field v Barling, 149 Ill. 556 (1894).

51 Aldis v Union El. R. R. Co., 203 Ill. 567 (1903).

not of a kind and character suffered in common by the public generally.53*, The impairment in value of property by reason of personal danger to the owner, or on account of the location of a jail55 or a small-pox hospital,56 in particular instances, has been held to be speculative and not within the protection of the constitution. Nor may a recovery be had for damages which do not arise from the violation of any right, as in the case of loss of trade caused by a diversion of customers by reason of the erection of a viaduct, or for the destruction of a grade switch-track connection from the property to a railroad, caused by the elevation of the railroad tracks in a case where the railroad company was under no legal obligation to maintain such connection.58 An owner of property which is taken or damaged is not entitled to have compensation fixed with reference to his religious beliefs or matters of a sentimental nature.

60

Taking of property under police power. Regulations under the police power to promote and safeguard the health, safety, morals or general welfare of the public which govern and restrict the use of property do not constitute a taking or damaging for which compensation may be had under this section. Regulation of this character may destroy the use and value of property and, in cases of necessity, may even destroy the property itself when its continued existence constitutes a menace to the public. Police legislation is directed against property and the uses of property which are deemed harmful to society and it operates by prohibiting the use or destroying the property. No such element enters into a taking under the power of eminent domain. There is simply an appropriation of property or the use of property for public purposes. (See discussion article 2, section 2, subheading, "Legality of purpose and appropriateness of a particular measure to effect that purpose.")

Just compensation-where part of a tract is taken. Where a part only of a tract has been taken, the part not taken may be specially damaged or specially benefited. In determining whether the effect of the improvement upon the remaining parcel is one of special damage or of special benefit, the elements of special benefit arising from the improvement may be set off against the elements of special damage to the part not taken. This construction was placed upon the constitutional provisions of 1818,61 1848,62 and the same construction has been placed upon this section in the constitution of 1870.63

If the special benefits to the part not taken exceeded the elements of special damage to the part not taken under the constitutions of 1818 and 1848, the excess could be set off against the market value of the part taken even though the effect of such set off was to deprive the owner of all right to pecuniary compensation for the part taken. This rule was changed

53 I. C. R. R. Co. v School Trustees, 212 Ill. 406 (1904); Aldrich v Metropolitan West Side El. R. R. Co., 195 Ill. 456 (1902).

54 C. & M. Electric R. R. Co. v Mawman, 206 Ill. 182 (1903). Rigney v City of Chicago, 102 Ill. 64 (1882).

56 Frazer v City of Chicago, 186 Ill. 480 (1900).

57 Hohmann v City of Chicago, 140 Ill. 226 (1892); City of Chicago v Spoor, 190 Ill. 340 (1901).

58 Otis Elevator Co. v City of Chicago, 263 Ill. 419 (1914).

50 Dowie v C. W. & N. S. Ry. Co., 214 Ill. 49 (1905).

60 City of Decatur v Vaughan, 233 Ill. 50 (1908).

61 State v Evans, 3 Ill. 208 (1840).

62 A. & S. R. R. Co. v Carpenter. 14 Ill. 190 (1852); Curry v Town of Mt. Sterling, 15 Ill. 320 (1853).

63 Page v C. M. & St. P. Ry. Co., 70 Ill. 324 (1873); DuPont v Sanitary District. 203 Ill. 170 (1903); E. M. & S. W. R. R. Co. v Everett, 225 Ill. 529 (1907); Oil Belt Ry. Co. v Lewis. 259 IH. 108 (1913).

64 State v Evans, 3 Ill. 208 (1840); A. & S. R. R. Co. v Carpenter, 14 Ill. 190 (1852).

by a statute in 1852 which forbade the setting off of benefits against the value of the part taken. The constitutionality of this act apparently was not questioned.65

It has been held that the effect of the constitution of 1870 has been to prevent the setting off of benefits to the part not taken against the value of the part taken. The owner is entitled to receive compensation for the part taken irrespective of benefits to the remaining land." Where the effect of the taking of part has been to damage the part not taken, the whole is held to constitute a taking. (See discussion preceding subheading, "What constitutes a taking".) Cities, towns, villages, drainage districts and park districts are permitted to levy special assessments for local improvements. (See discussion article 9, section 9, subheading, "Special assessments and special taxation for local improvements," center subheading, "Municipalities that may be authorized to make local improvements by special assessments or special taxation".) By the levy of special assessments, these municipalities may, in effect, set off special benefits received by property not taken against the compensation required to be made for property taken. In other words, they may recoup the compensation they are obliged to make for property taken for a local improvement, to the extent that such local improvement benefits specially property not taken. The effect is, therefore, a discrimination against the state and those municipalities which are not authorized to levy special assessments, in making compensation for property taken for local improvements.

Just compensation-where no property is taken. Under the constitutions of 1818 and 1848 there was no right to compensation for damage which did not amount to a taking. The introduction of the word "damage" in the constitution of 1870 gave a constitutional right to compensation therefor. Recovery is allowed for special damage, as distinguished from general damage such as is sustained by the community as a whole, if such damage arises out of a violation of some right. In determining whether the owner is entitled to any compensation, special benefits, but not general benefits may be taken into consideration, i. e., special benefits may be set off against special damage. If the special damage exceeds the special benefits, compensation must be in money. Compensation need not be made before the infliction of the damage and an injunction to restrain the prosecution of the work will be denied."9

67

Just compensation for property taken-medium and time of payment. For an actual taking, the owner is entitled to be paid in money and he cannot be compelled to accept orders or other means of obtaining payment which he may be obliged to enforce by legal proceedings.70 Actual payment is a condition precedent to the right to take." Equity will enjoin a taking until compensation is made." But the condemning authority may enter into the temporary possession of the premises pending an appeal from

65 Hayes v Q. O. & F. 'R. V. R. R. Co., 54 Ill. 373 (1870); P. P. & J. R. R. Co. v Black. 58 Ill. 33 (1871); P. P. & J. R. R. Co. v Laurie, 63 Ill. 264 (1872). GG Carpenter v Jennings, 77 Ill. 250 (1875); Harwood v City of Bloomington, 124 Ill. 48 (1888); Washington Ice Co. v City of Chicago, 147 Ill. 327 (1893); People v Burrall, 258 Ill. 509 (1913).

67 City of Shawneetown v Mason, 82 Ill. 337 (1876); City of Elgin v Eaton, 83 Ill. 535 (1876): City of Chicago v Lonergan, 196 Ill. 518 (1902); Brand v Union Elevated R. R. Co., 258 Ill. 133 (1913); Brand v Union Elevated R. R. Co., 238 U. S. 586 (1915).

68 L. S. & M. S. Ry. Co. v B. & O. R. R. Co., 149 Ill. 272 (1894).

69 Stetson v C. & E. R. R. Co., 75 Ill. 74 (1874); Doane v Lake St. El. R. R. Co., 165 Ill. 510 (1897); Childs v City of Chicago, 279 Ill. 623 (1917). 70 Caldwell v Commissioners of Highways, 249 Ill. 366 (1911).

71 Caldwell v Commissioners of Highways, 249 Ill. 366 (1911).

the condemnation proceeding upon giving the required bond." The Attorney General has rendered an opinion holding that the state may take property without actual prepayment, and that an appropriation duly passed by the General Assembly probably would be sufficient."

Respective province of the court, the General Assembly and the condemning authority. The construction of all words in the eminent domain clause is for the court. A statutory declaration as to what constitutes a public use does not bind the court." The question of the propriety of delegating the power of eminent domain and the procedure for its exercise is for the General Assembly.T 76 The question as to the necessity for a particu lar taking is, in the first instance, for the condemning authority which is vested with a relatively wide discretion, but is subject to review by the courts in case of an abuse of that discretion."

Section 14. No ex post facto law, or law impairing the obligation of contracts, or making any irrevocable grant of special privileges or immunities, shall be passed.

Ex post facto laws. The prohibition against ex post facto laws is limited to legislation relating to criminal matters,78 which operates to the possible prejudice of an accused person as to an act committed prior to its passage. The indeterminate sentence law can be given a prospective effect only since, if applied retroactively, it prejudices the accused by abolishing his right to have the jury fix the punishment." A statute increasing a penalty of $50.00 to one not exceeding $100.00 against railroad companies for failing to sound a bell or whistle at street crossings is void as to of fenses committed prior to its passage.0 But the General Assembly may reduce a penalty as to offenses already committed. However, when it is doubtful whether the penalties of a new law are more severe than under the prior law, it has been said that the second act is not ex post facto, but the defendant will be permitted to select which act shall be applied to his case. A law prohibiting the re-marriage of divorced persons within a certain period is not ex post facto.83

Impairment of contracts. This section prohibits legislation impairing the obligations of contracts which have been entered into prior to the passage of the legislation. But there is no constitutional objection to a law regulating future contracts.84 Thus the General Assembly may require

73 Mitchell v I. & St. L. R. R. Co., 68 Ill. 286 (1873).

74 Report Attorney General, 1917-18, p. 729.

75 Nesbitt v Trumbo, 39 III. 110 (1866); Gaylord v Sanitary District, 204 Ill. 576 (1903).

70 City of Chicago v Lehmann, 262 Ill. 468 (1914); Gillette v Aurora Ry. Co., 228 Ill. 261 (1907).

77 Burke v Sanitary District, 152 Ill. 125 (1894); Village of Depue v Banschback, 273 Ill. 574 (1916); P. F. W. & C. Ry. Co. v Sanitary District, 218 Ill. 286 (1905): C. & W. I. R. R. Co. v City of Chicago, 255 Ill. 136 (1912). 78 Coles v County of Madison, 1 Ill. 154 (1826).

79 Johnson v People, 173 Ill. 131 (1898).

80 Wilson v O. & M. Ry. Co., 64 Ill. 542 (1872).

81 C. & A. R. R. Co. v Adler, 56 Ill. 344 (1870).

82 Kossakowski v People, 177 Ill. 563 (1899).

83 Olsen v People, 219 Ill. 40 (1905).

84 Burdick v People, 149 Ill. 600 (1894).

85

that deeds and mortgages to be valid shall be acknowledged. This section will not protect against impairment a contract to do an act prohibited by a bill passed by the General Assembly and signed by the Governor, but not yet in full effect as a law at the time the contract was made.86

The Supreme Court has held that a court may not by judicial decision impair the obligation of a contract any more than the General Assembly may by statute.87 This view is based on what is probably an erroneous conception of the holding of the United States Supreme Court which court has later expressly held (along with many state courts) that the constitutional provision prohibits impairment of contracts by action of a legislative character only.88

A law may provide for its adoption by the vote of the electorate in particular districts and also for its subsequent rejection in the same manner. A vote discarding the law is practically the same as to the district affected, as a repeal of the law by the General Assembly. Contracts, therefore, made while such a law is in force will be protected against impairment resulting from the rejection of the law by the action of the district. Thus it was held that the obligation of a contract for the construction of a building in a school district under an act adopted by vote, could not be impaired by a subsequent election discontinuing the school district."

Contracts made by the state are within the protection of this constitutional provision and may not be impaired by legislation seeking to abrogate or change them. Thus where a contract to do certain printing for the state specified payment in state paper "at its specie value" the General Assembly may not fix an arbitrary higher valuation for such payment." In a number of cases relating to franchises of special privileges which were granted by the state to corporations or individuals prior to the adop tion of the constitution of 1870, it was held that such franchises constituted contracts which were not subject to impairment by subsequent legislation. As a result of these decisions, subsequent grants were made subject by express terms, to the power reserved to the state to alter, amend or repeal. Irrevocable grants of special privileges or immunities are prohibited in the constitution of 1870 by the last clause of this section. (See discussion subsequent subheading). A railroad having the right under its charter to use and sell its lands as it deemed expedient cannot be compelled by statute to dispose of them within a limited period at a fixed price, particularly when the land in question had been placed as security for bonds issued by the railroad company, since then the statute operates to impair not only the charter rights but also the obligations of the bonds." So the right to maintain a toll road under a charter may not be impaired by the annexation to a city of the land enclosing it. After a county has been authorized to subscribe for stock in a railroad company and levy taxes for that purpose by the charter of the company and has made a subscription and issued its bonds therefor, a subsequent act limiting the taxing power or the means to meet the bonds, impairs the obligation of these contracts.93 But it has been held that a railroad charter amendment for the extension of the road, consolidation with other roads and the assumption of new and increased responsibilities, does not impair the validity or obligation of contracts for subscription of stock in the corporation," so long as the changes in the charter are merely auxiliary to the original design and not a fun

85 Parrott v Kumpf, 102 Ill. 423 (1882).

84 Dunne v County of 'Rock Island, 283 Ill. 628 (1918).

87 Harmon v Auditor of Public Accounts, 123 Ill. 122 (1887).

88 Bacon v Texas, 163 U. S. 207 (1896).

89 Chalstran v Board of Education, 244 III. 470 (1910).

90 Blackwell v Auditor of Public Accounts, 1 Ill. 196 (1826).

91 People v Ketchum, 72 Ill. 212 (1874).

92 City of Belleville v Turnpike Co., 234 Ill. 428 (1908).

93 P. D. & E. Ry. Co. v People, 116 Ill. 401 (1886).

94 Banet v A. & S. R. R. Co., 13 Ill. 504 (1851); T. H. & A. R. R. Co. v