I. SUMMARY. The purpose of this pamphlet is: (1) To present a summary of the constitutional aspects of the law of eminent domain in Illinois. (2) To indicate the changes which were introduced in the constitution of 1870. . (3) To compare the law of eminent domain in Illinois with the law in other states. (4) To indicate the questions which have arisen out of existing constitutional provisions and which are likely to come before the convention. (5) To discuss recent constitutional changes in the law of eminent domain which have been adopted in other states. There are, in general, two types of questions likely to come before the Convention: (1) those which have arisen out of existing constitutional provisions, (2) those which involve an extension of the power of eminent domain. In the first group the following questions may arise: The question of the advisability of amending the general eminent domain clause, (1) So that all governmental agencies which possess the power of eminent domain may be permitted to set off benefits to the portion of land not taken for the improvement in diminution of the value of the part of the tract which was taken. (2) So that the General Assembly will possess the power of authorizing the condemnation of the rights of private property owners acquired under restrictions as to use imposed upon property dedicated to public uses. (3) By eliminating the constitutional guaranty of jury trial on issues of compensation. (4) By eliminating the constitutional provision which prevents the General Assembly from authorizing railroad companies to condemn the fee in land taken for railroad tracks. (5) So that in all cases it will be certain that the General Assembly may authorize the taking of a fee. In the second group of constitutional questions the following may arise: The question of the advisability of authorizing: (1) The condemnation of land for the conservation of all natural resources. (2) The condemnation and leasing of public utilities by municipalities. (3) The condemnation of land for purposes of reclamation. (4) The condemnation of land for the purpose of abating slum areas. (5) The condemnation of land for the purpose of relieving congestion and in furtherance of housing projects. (6) The use of excess condemnation for the purpose of: (a) facilitating the union of lot remnants left by street openings with adjoining property so as to form suitable building sites; (b) protecting an improvement by taking and selling land, bordering on an improvement, under restrictions as to the type, use and location of buildings; (c) recouping the cost of an improvement by taking and selling land bordering on an improvement after it has increased in value. (7) Closely related to the question of authorizing excess condemnation for the purpose of protecting an improvement is the question of the advisability of authorizing municipalities to enact zoning ordinances and ordinances prohibiting the erection of billboards in certain districts. II. CONSTITUTIONAL PROVISIONS RELATING TO EMINENT DOMAIN. Text of constitutional provisions. The text of the eminent domain clause under the constitution of 1818 was as follows: "Nor shall any man's property be taken or applied to public use without the consent of his representatives in the general assembly, nor without just compensation being made to him." This language was continued without change in the constitution of 1848. The clause underwent important changes in the constitution of 1870. The general clause now provides: "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 fee of land taken for railroad tracks, without consent of the owners thereof, shall remain in such owners, subject to the use for which it is taken." 991 Separate sections were inserted which deal with the right to condemn land for roads for private and public use, for drainage purposes and with the condemnation of property and franchises of corporations: "The general assembly may provide for establishing and opening roads and cartways, connected with a public road, for private and public use."2 "The general assembly may pass laws permitting the owners or occupants of lands to construct drains and ditches for agricultural and sanitary purposes across the lands of others." As amended in 1878 the section last quoted reads: "The general assembly may pass laws permitting the owners of lands to construct drains, ditches and levees for agricultural, sanitary or mining purposes, across the lands of others, and provide for the organization of drainage districts, and vest the corporate authorities thereof with power to construct and maintain levees, drains and ditches and to keep in repair all drains, ditches and levees heretofore constructed under the laws of this state, by special assessments upon the property benefited thereby." 994 The provision relating to the condemnation of corporate franchises reads: "The exercise of power and the right of eminent domain shall never be so construed or abridged as to prevent the taking, by the General Assembly, of the property and franchises of incorporated companies already organized, and subjecting them to the public necessity the same as of individuals. The right of trial by jury shall be held inviolate in all trials of claims for compensation, when, 1 Art. II, Sec. 13. in the exercise of the said right of eminent domain, any incorporated company shall be interested either for or against the exercise of said right." Changes introduced by Constitution of 1870. It thus appears that the constitutional convention of 1869-70 introduced several important changes in the law of eminent domain, as it existed under the constitutions of 1818 and 1848. A short statement here follows concerning the effect, in general, of these new provisions. (1) A constitutional right to compensation was given in cases where property has been damaged. Before 1870 the right to compensation was confined to cases of actual takings. A taking was held to mean a taking of the tee, or the taking of an easement or the imposition of an additional servitude upon land an easement in which previously had been acquired, and in addition, included all direct physical injuries to property such as the overflowing of land. Compensation was not required to be paid for non-physical injuries, such as resulted from a change in the grade of streets or from the construction of a railroad upon a street, the fee of which was in the public. The introduction of the damage clause gave a right to compensation in these cases. Stated generally, an owner whose property has been damaged under legislative authority and under color of eminent domain has, under the constitution of 1870, a right to compensation to the same extent as he has against private persons. Illinois was the first state to introduce this change. This example has been followed in about half of the states, most of which are Western states. This change in the law appears to have given satisfaction, for there is to be found but little evidence of a desire to return to the earlier rule, which is still in force in most of the Eastern states, under which property may be damaged without compensation. (2) The guaranty of the right to compensation for damage to property has had an additional effect in this state which was not a necessary consequence of the introduction of the damage clause. Under the constitutions of 1818 and 1848, in determining the amount of compensation for land actually taken, it was held that elements of special benefit to that part of the claimant's land which had not been taken could be set off against the value of the part taken. Without pointing out any specific reason, the court has held that the effect of the constitution of 1870 was to prevent the set-off of benefits against the value of land taken, although the court has never had the opportunity of passing upon a statute which undertook to restore the rule as it was under the earlier constitutions. In takings by private corporations this rule is followed in the great majority of the states, but in about half the states, either as the result of judicial construction of clauses similar to the Illinois provision, or because of express constitutional provision, set-off of benefits to remaining land against the value of the part taken is allowed in takings by the state and by its agencies. 5 Art. XI, Sec. 14. If all agencies of the state possessed the power of levying special assessments, the rule forbidding set-off would be of little consequence. But in Illinois where cities, towns, villages, park districts and drainage districts are the only agencies which may levy special assessments, there is strong argument in favor of allowing all governmental agencies, such as counties, school and road districts and the Department of Public Works and Buildings, the right to set off benefits against the value of the land taken. (3) The guaranty of jury trial to determine the amount of compensation came into the constitution of 1870. Under the first two constitutions, the General Assembly had power to and did provide other means for the ascertainment of compensation, for the general constitutional guaranty of jury trial was never construed to apply to eminent domain proceedings. The provision relating to jury trial as to compensation is found only in about one-third of the states, and in some of these only in cases of appeal from a finding of some other body. In about half of these states the provision does not apply to takings by municipal corporations. The provision has been the subject of some criticism in other states. The state is expressly exempted from this provision in Illinois. This exemption applies to all takings by the state in its corporate capacity, such as takings by the Department of Public Works and Buildings, but does not exempt local governmental agencies. (4) Under the constitutions of 1818 and 1818 there was no constitutional limitation upon the power of the general assembly to authorize the condemnation of the fee simple title to land. The constitution of 1870 provided that the fee of land taken for railroad tracks should remain in the owner. Such a limitation as this is found in the constitutions of but three other states, Missouri, Oklahoma, and South Dakota. Since the abandonment of the user causes a reversion of the right of possession to the owner of the fee, this provision works a hardship on railroad companies in the event of a necessary removal of their tracks. In cases where the removal of tracks is sought by a city in furtherance of its improvement plan, the provision becomes an obstacle. The elimination of this restriction has been urged by civic bodies in Chicago, interested in the Chicago Plan. If the provision is taken out it would seem that the roads should also be given the right to condemn the fee of lands now occupied by them in which they had previously acquired easements under the existing constitution. (5) The constitution of 1870 also contains a provision not found in the preceding constitutions, expressly declaring that the franchises and properties of corporations shall be subject to condemnation for public use. The provision also reasserts the guaranty of jury trial in eminent domain proceedings by or against corporations. This provision is found in about one-third of the states. Inasmuch as it has been held that the power of eminent domain cannot irrevocably be granted away and that a breach of an attempt to do so is not an impairment of the obligation of any contract, this provision adds no power to that possessed under the general eminent domain clause. |