Syllabus. Statement of the case. AMANDA S. COOK V. SOUTH PARK COMMISSIONERS. 1. EMINENT DOMAIN-right of, subject to constitutional limitation. The right of the State to take private property for public uses can not be asserted by mere enactment. The constitution, providing that the citizen shall not be deprived of property except by due process of law, or in conformity to the law of the land, requires a trial or judicial proceeding, and a judgment. 2. Nor does a designation by metes and bounds, followed by a popular vote of approval, a selection by commissioners, and a condemnation, upon due proceedings, deprive the owner of his title or right of possession. Without payment of the damages awarded, the antecedent proceedings are not effective. The last act must be performed before the law will regard the land as taken or acquired. 3. VALUATION—when ascertained. In assessing damages, the value at the time of the condemnation should be considered, the owner being entitled to the benefit of an advance caused by the prospective establishment of a public park. 4. TITLE-tenancy-rent. The commissioners not having acquired title nor possession, no tenancy existed during the proceedings, to justify an award of rent against the owner in possession. 5. INTEREST-delay. No interest accrues upon an award before judg ment, nor can a party causing or contributing to delay, have interest, until entry of final judgment. 6. A judgment in a proceeding for the condemnation of private property for public use, awarding damages, will bear interest, although no execution can be issued upon the judgment. 7. VERDICT upon awards—execution—mandamus. The verdict upon an award being special, no execution can issue upon it; but the property does not pass until payment. Mandamus is necessary to compel the commissioners to act. APPEAL from the Circuit Court of Cook county; the Hon. E. S. WILLIAMS, Chief Justice, presiding. This was an appeal in the circuit court of Cook county, by Mrs. Amanda S. Cook, from an award of commissioners 61 115 31a 458 61 115 170 335 Statement of the case. appointed by that court, on the petition of the South Park commissioners, in a proceeding for the condemnation, for park purposes, of certain real estate belonging to her. The proceedings were had under an act of the general assembly of February 24, 1869. The first section provided for the organization of the Board of South Park Commissioners, which, by the terms of the act, became a corporate body. The fourth and second sections provide that "the said commissioners, by this act, are authorized and empowered to, and they shall, within ninety days after their organization as aforesaid, or as soon thereafter as practicable, select the following described lands situated in the towns of South Chicago, Hyde Park and Lake, in Cook county, Illinois, to wit: [describing the lands,] which said lands and premises, when acquired as provided by this act, shall be held, managed," etc. The fifth section provides that, in case of disagreement, condemnation may proceed under the Right of Way act of June 22, 1852. The sixth section provides that, "when the title to the land selected for such park, as herein provided, shall have been acquired by said commissioners," etc., they shall acknowledge and record a plat. Section eighteen provided for a popular election in the three towns named, and that the act should take effect upon a majority vote in the affirmative-not otherwise. In estimating the value of lands taken, and the amount of damages, the benefits were also to be estimated. On September 8, 1870, the commissioners appointed to make the assessment filed their report, estimating the compensation to be paid at $90,000. From this award Mrs. Cook appealed to the circuit court, in which she had, January 16, 1871, judgment for $114,347.18, as the total value, including interest. Both parties took exception to the rulings and judgment of the court, and respectively appealed to the Supreme Court. Opinion of the Court. On the trial below, it was stipulated that Mrs. Cook was, at the date of the passage of the law, and had been ever since, the owner of the premises in fee. The statement of the testimony offered upon the trial, and the rulings of the court upon instructions asked by the parties, are embodied in the opinion of the court. Messrs. SCAMMON, MCCAGG & FULLER, for the appellant. Messrs. BECKWITH, AYER & KALES, for the appellees. Mr. JUSTICE THORNTON delivered the opinion of the Court: The law which authorized the commissioners to acquire lands to be held and controlled for a public park, described the lands to be selected. In determining the compensation to be paid to the owner of the lands taken, the chief question is, at what time shall their value be estimated? In behalf of the commissioners, it is assumed that the proper time was when the law became operative, by ratification by the voters; that then the property was irrevocably appropriated for public use; the owner was then divested of the beneficial enjoyment of it; deprived of all right to convey or improve it; and that nothing remained to be done but to ascertain and pay the compensation. The instructions given upon the trial assume that the land was taken when the law went into operation, without any act, on the part of the corporate authorities, to condemn it or to acquire it in any other manner, and that it was devoted to public use by the enactment. * * On the part of appellant, it is contended that the legislature can not transfer the property of one man to another; can not donate it to public use by its own mere declaration. The constitution provides that "no freeman shall be * * in any manner deprived of his life, liberty or property, but by the judgment of his peers or the law of the land." Opinion of the Court. Mr. Webster, in his argument in the Dartmouth College case, has given a very correct definition of the phrase, "the law of the land," when he said: "By 'the law of the land,' is most clearly intended the general law, which hears before it condemns, which proceeds upon inquiry, and renders judgment only after trial. The meaning is, that every citizen shall hold his life, liberty, property and immunities under the protection of the general rules which govern society. Everything which may pass under the form of an enactment is not the law of the land." This section of the constitution had reference only to the taking of the property of one and giving it to another. This is not within the scope of legislative authority, either with or without compensation. The citizen can only be deprived of his property, and the title transferred to another, by a fair trial and an adjudication, according to the course of the common law. There can be no forced divestiture, except by judgment of law, when it is not taken for public use; the legislature can not exercise judicial power, and therefore mere legislation will not accomplish the transfer. Newland v. Marsh, 19 Ill. 376; Taylor v. Porter, 4 Hill, 140; Ross v. Prior, 14 Ill. 171. The act in question does not undertake to deprive one person of property for the purpose of vesting it in another. It merely empowers the commissioners to select certain described lands, and then recites, "which said lands and premises, when acquired by said commissioners, as provided by this act, shall be held, managed and controlled as a public park; for the recreation, health and benefit of the public, and free to all persons forever." * * * The following section provides that, if the commissioners can not agree with the owners of the real estate "selected as aforesaid," they may proceed to procure its condemnation, in the manner prescribed in the act concerning right of way, approved June 22d, 1852. Opinion of the Court. These provisions can not properly be construed as an irrevocable appropriation of the land, an absolute divestiture of title, a positive prohibition upon any alienation or improvement, a change of the estate from ownership in fee to a mere tenancy at will. This would be a dangerous and unwarranted exercise of power by the legislature. The commissioners were authorized to "select." The term implies choice. To choose signifies to take one thing rather than another. When we select we choose. It is true, that other lands than those designated could not be taken, because it would have been in excess of the power, yet the commissioners might have refused to select. The law conferred an authority to be exercised, but not to be exercised at all hazards, and without regard to results. If the owners had insisted upon a most exorbitant price, and the probabilities were against a fair price by condemnation, the commissioners should be permitted to decline the purchase. The legislature certainly never intended to force the selection without regard to consequences. The words, too, "when acquired as provided by this act," must have some meaning in determining the legislative intent. To acquire, expresses progressive and permanent action. It would be a solecism to say that a man must acquire an estate, or a title, when the estate or title was complete in him. The lands were to be held as a public park, when acquired as provided. If no agreement could be made between the commissioners and owners, then the lands were acquired by condemnation. The several provisions of the law under which the condemnation must be procured, are antagonistic to the position that the land was taken by force of the South Park act. Upon the filing of the petition, and notice given, commissioners are to be appointed. They must hear the allegations and testimony of the parties interested, and then fix the compensation to be paid to the owners of "lands to be taken" for the purposes specified in the act. They must view and inspect |