Trustees of Schools v. Berryman , 325 Ill. 72 ( 1927 )

Whatever other errors this record may disclose, the judgment, in our opinion, should not be reversed for the reason assigned in the majority opinion. The trustees of schools had authority to acquire the school house site by the exercise of the right of eminent domain. The manner of the exercise of that right is governed by the act of 1872 "to provide for the exercise of the right of eminent domain," which is contained in chapter 47 of the Revised Statutes. The proceeding is special, statutory and summary, its sole object is to ascertain the compensation to be paid, and the amount is the only issue. (Department of Public Works v. Sohm, 315 Ill. 478.) If the land owner desires to contest the petitioner's right to condemn, or if either party desires to raise any issue upon the title to the land, these questions must be presented to the court for determination before the jury is impaneled to ascertain the compensation. (Lieberman v.Chicago Rapid Transit Railroad Co. 141 Ill. 140; Chicago andMilwaukee Electric Railroad Co. v. Diver, 213 id. 26.) In this case the appellants did contest the appellees' right to condemn by answer and by motion to dismiss, and the court properly overruled the objections. The cause was submitted to the jury, which fixed the amount of compensation to be paid at $900. The appellants then moved to arrest the judgment on the ground that the petitioner could not pay the amount of the compensation fixed by the jury. This was not an issue for the court to determine. The statute does not require or allow any such inquiry. The court has no authority to render any judgment against the appellees for the payment of the compensation or to inquire into their ability to pay. The statute requires the court, upon the report of the jury, to enter an order authorizing the petitioner to enter and use the property upon payment of the full compensation ascertained. It is true that the petition by which the property here in question was submitted to be voted upon for a school house site fixed the maximum estimated cost at $600, as required by paragraph 5 of section 127 Of the School law, and that the board of education was limited in the purchase of the property by that amount. This, however, was not a question for the consideration of the court. The appellees may not be able to make the payment, which is a condition precedent to their taking possession of the prop-erty, but they have a right to the judgment required by the statute that they may take possession upon paying the compensation legally ascertained. However, while the board of education by the vote of the district is limited in the use of the funds of the district in acquiring the title to the property to the maximum estimated price stated on the ballot, there is no prohibition of the acceptance of contributions or donations for the acquisition of title. It is not an impossible thing that a public-spirited person, or several such persons, may make the whole payment for the district or the payment of the excess over the amount authorized by the vote. The board of education may have, or may hereafter secure, an offer of such assistance. It is not a matter for the court to inquire into or adjudicate upon, and the court has no right to deny the petitioners the judgment directed by the statute to be entered.

It has been frequently held that in the exercise of their discretion by public authorities in deciding upon the public necessity or convenience of a proposed improvement, donations of money or land may be made, bonds of indemnity given and releases of damages made, and such bonds and releases are valid and may be enforced. (Mills on Eminent Domain, — 2d ed. — sec. 24.) In Harrington v. Harrington, 1 Metc. 404, it was held that the proceedings of selectmen in laying out a road and awarding damages to the land owner, and the act of the town ratifying the act of the selectmen on condition that a person named should build the road and pay all the expenses of the same and defend the town against all prosecutions, were not void but the road was legally established. The condition was a recognition of and acceding to the agreement of the person named to build the road and pay the expenses, and this was a matter between such person and the town, and the tender of the damages to the land owner before his land was entered on conferred the right of entry upon the land. In Jones v.Andover, 9 Pick. 106, it was held that there was no objection to a town's having a town-way made, part of the expense of which was to be paid by individuals. To the same effect areParks v. Boston, 8 Pick. 25, Hunter v. Newport, 5 R. 1. 325, and Cummins v. Shields, 34 Ind. 154. In the last case it was held that there was nothing legally or morally wrong in a party desiring the establishment of a highway taking upon himself a part or all of the burden of the damages assessed by paying them into the treasury for the use of the party entitled to the same, and that the proceeding to lay out and establish the highway was not erroneous by reason of the fact that the damages, or a part thereof, assessed to a remonstrator and ordered to be paid to him out of the county treasury were shown to have been paid into the treasury for the use of the remonstrator by a petitioner for such highway.

There is no statute or public policy of this State which forbids the acceptance of donations of land or money by municipalities or public authorities in aid of the construction of public improvements. (Department of Public Works andBuildings v. Caldwell, 301 Ill. 242.) On the contrary, section 81 of the Roads and Bridges act expressly authorizes such donations to town and county highway officials and declares agreements in writing promising such donations to be valid and binding contracts. This law has been in force for many years and is a legislative expression of the public policy of the State on this question. The doctrine of these cases is, that in the making of a public improvement, if the burden of the cost and damages is regarded by the public authorities as greater than the public should bear, a part of such cost, or the whole, may be paid by individuals desiring the improvement, and that such payment by interested persons is no ground of objection by those to whom the costs or damages are paid.

In an application by a city to condemn land for a public park the land owner answered, setting up, among other things, that the city was without funds to pay for the land for the reason that the general fund was insufficient to defray the current expenses of the city, that the city was indebted beyond the constitutional limit, and that a park was not necessary to the health and comfort of the people. A demurrer to the answer was sustained, but the Supreme Court of Iowa reversed the judgment, holding that the right to purchase or condemn lands for use as a park was conferred upon cities without restriction as to their ability to pay therefor, and the land owner is not concerned in their ability to pay, as he was not required to give credit. If he sold he might demand payment in cash, and if his land was taken by condemnation he could not be disturbed in his title or possession until the value as found was fully paid. It was for the corporation, alone, to determine upon its ability to pay and whether condemnation would be asked, and when asked in the manner provided it was for the courts to grant it upon the terms fixed in the law and not for the owner or the courts to inquire as to the ability or necessity of the corporation, these matters being left to the judgment of the proper officers. As the law required payment in full to be made upon purchase or condemnation, it could not be said that the city incurred any indebtedness thereby, and therefore the plea of the constitutional limitation of indebtedness was no defense.In re City of Cedar Rapids, 85 Iowa, 39.

The doctrine is indicated by these decisions, as well as the reason of the case, that it is no defense to condemnation proceedings brought by a municipality to condemn lands for a public improvement that the municipality has no funds with which to pay for the land taken or authority to incur indebtedness for that purpose, and that neither the owner nor the courts have any authority to inquire into the ability of the corporation to pay.