Zurn v. City of Chicago

I can not agree with the majority opinion holding the act constitutional. The basis of my dissent shall be limited to a discussion of that part of the act which confers upon Neighborhood Redevelopment Corporations organized under the act the authority to exercise the power of eminent domain.

The power to take private property without the owner's consent, with compensation, is a power that in the first instance rests exclusively in the State. Any exercise of it is, as was stated inDepartment of Public Works v. Ryan, 357 Ill. 150, "fraught with grave responsibilities." In the act in question, the legislature has undertaken to confer that power upon the Neighborhood Redevelopment Corporations which the majority opinion correctly refers to as private corporations. Before such delegation of power may be given judicial approval, it must appear that such private agency is going to devote the land taken pursuant to such power to a purpose in which there is a public use. If the purpose for which the land is to be devoted is purely private, then the delegation of power can not be sustained, for it would be but an authorization giving one agency engaged in a private enterprise the power to take the property of another individual without the latter's consent.

It is my view that lands taken by eminent domain pursuant to the act will be subjected to a purpose in which there is no right to public use. Section 13 of article II of the constitution directs that "private property shall not be taken nor damaged for public use without just compensation." This limitation provision has been construed as prohibiting the taking of private property for any purpose other than for a public use. In determining whether the purpose for which the Neighborhood Redevelopment Corporations proposed to use the land is for a public use, it is necessary to note the distinction made in the cases between a purpose which is to the advantage of the public and a purpose which is for a public use.

In Gaylord v. Sanitary Dist. 204 Ill. 576, on page 584, it was said: "It is also the settled doctrine of this court that to constitute a public use, something more than a mere benefit to the public must flow from the contemplated improvement. The public must be to some extent entitled to use or enjoy the property, not as a mere favor or by permission of the owner, but by right."

In Cleveland, Cincinnati, Chicago and St. Louis Railway Co. v.Polecat Drainage Dist. 213 Ill. 83, it was said: "Private property cannot be condemned by a person or corporation on the ground that the general prosperity of the State or community would be promoted thereby, if the title to the property so taken is to be vested in such person or corporation as private property, to be used and controlled as other private property. To be public the use must concern a community, as distinguished from an individual or any particular number of individuals, and then, to authorize the condemnation of private property, the law must control the use to be made of the property, after it has been condemned, to the end that it shall be devoted to the public purpose which alone could justify the taking of the same from the owner without his consent."

A common example of the exercise of the power by a private corporation is the taking of land by a railroad company for its right of way. Unquestionably the public derives two benefits by the construction of a railroad: One from increased transportation facilities, the other the right that every individual has to use the railroad for the transportation of persons and property. The public derives an advantage from the establishment of an industrial plant in the community, but no one would contend that such public advantage would warrant the taking of private property by eminent domain.

The purpose for which the act was designed was to remedy the conditions specified in section 2. It may be said that the primary purpose is to rehabilitate slum areas. The act contemplates that this may be accomplished by improving the living conditions in such areas. It may result in the destruction and removal of the buildings, destroying the housing facilities that are in such areas, and the erection of new buildings thereon. It may be accomplished by the repair and improvement of the buildings already in such area. I do not doubt but what the public will derive an incidental benefit by the removal of such conditions, but my view is that this act goes much farther. It not only contemplates the removing of the conditions but also directs the use of the property, after the conditions have been removed, into private hands for private purposes. The statute provides that the charter of the Neighborhood Redevelopment Corporation shall not extend longer than sixty years, but the act does not contemplate that for the full period of sixty years there shall be a constant and continuous effort to eradicate the evils of slum conditions in the area and to keep it clear from such conditions. Section 26 of the act provides, that "Anything in this act to the contrary notwithstanding, the supervision and regulation of the Neighborhood Redevelopment Corporation by the Redevelopment Commission, shall without more cease and determine whenever the Redevelopment Commission shall find that the redevelopment of the development area of the Neighborhood Redevelopment Corporation has been achieved." It is possible that such purpose may be achieved within three or five years and if it is achieved at any time less than the sixty-year period, then the right to regulate and prevent the recurrence of slum conditions has been terminated, and any incidental benefit which the public may derive from the clearance of slum areas is thereby terminated. However, such termination does not end the use of the land which has been taken by eminent domain. For that part of the sixty-year period which remains, the Redevelopment Corporations may proceed with the management of their property and the handling of it the same as any other private corporation handles its property. This, it seems to me, is a private purpose.

The power of eminent domain can not be exercised for both a public and private use. My view is that the riddance of certain property of the conditions attached to slum areas is but an incidental benefit to the public, and that it is not for a public use, but conceding the majority opinion to be correct in that regard, then there is the further proposition that the act authorizes the taking of land by the exercise of eminent domain, which, under the opinion, is a public use, but under section 26 this purpose may be adjudged to have been achieved and then for the remainder of the sixty-year period the corporation owns, manages and controls the property for its own private benefit. There is no time after the corporation has achieved the purpose and been discharged from control when the public or any individual or group of individuals may assert any right directly related to the use for which the property was taken. It is conceivable that the corporation may be discharged from control within five years from the date of its organization, and if so, then for fifty-five years it is privileged to own, operate and manage its property for private benefit and to the exclusion of the public. The public use must be coextensive with the purpose for which the property is to be condemned.

Attention is called to the fact that the act directs that a part of the property acquired by the corporation shall be devoted to park purposes. This is limited to one tenth of the area included in the development area. There is no question but what the power of eminent domain may be exercised to acquire lands for park purposes but there is no provision in the law for acquiring a tract of land, one tenth of which is to be used for the use of the public as a park, and the remaining nine-tenths to be used by a private corporation for purely private purposes. The power of eminent domain, as conferred by the act, is so interwoven with the purposes for which it was enacted that the act can not be sustained if the section granting the power of eminent domain is stricken. For the reasons stated, I am of the opinion that the act should be held invalid.