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rectly, if, under conditions specified, it cannot contract for the same within the estimate.
We should allow the three appropriation bills above re. ferred to, and the clauses selected from the Road law, to
speak for themselves upon the question of express power but for the extended and able argument presented by the appellant upon the exclusion doctrine above referred to, and upon the further contention that sub-section 12, above quoted, is meaningless and without force and adds nothing to the eleven preceding sub-sections,—the appellees, of course, contending for the opposite view.
We are of the view that the statutes appropriating funds to the commission for the building of State aid roads, together with the statute giving the commission power to let all contracts for the construction of such roads, or in a certain event to construct the same through its own agencies, and to perform all other duties prescribed in the act or reasonably inferable therefrom, confer upon the commission full and express power to purchase such road building materials, tools, implements and machinery as may from time to time be needed for the purposes aforesaid, and in their discretion to estimate and anticipate the needs and prepare therefor, as the bill here under consideration shows was done, and to the same extent as if the methods of its procedure in the premises were as definitely prescribed as the same are prescribed in relation to letting contracts for highway construction.
We do not attach controlling importance to the contention of appellant to the effect the commission's powers in regard to supplying road building materials, tools and machinery are limited to those acquired by virtue of the three enactments of 1905, supra, and to those acquired by and through the power of eminent domain conferred by the Tice law, because it is conceivable that many varieties of materials, tools and machinery useful in building State aid roads might not be produced at the penal and reformatory
institutions of the State and might not be found obtainable by and through the exercise of the power of eminent domain.
We hold, also, the power to purchase materials for road construction is not excluded by the grant of power to purchase materials for repair of roads or the grant of power to obtain materials by the condemnation of real estate, because to hold otherwise would bring us to the unreasonable conclusion that the commission, by determining, by and through its plans and estimates, the kind of road to be made and the kind of materials to be used therein would find itself under a duty to construct the road in the event a contract therefor could not be secured within the estimate and yet be unable to perform that duty for want of power to purchase the specific materials, assuming the State did not produce the same at its penal and reformatory institutions and that said materials could not be found through the process of the power of eminent domain.
We would not be understood as limiting the right of purchase to those comparatively rare instances in which the commission will be under a duty to construct the State aid roads directly, for the Tice law in authorizing the State, in the discretion of the commission, to furnish materials for the construction of State aid roads and fix the price to be charged therefor, is without limit and is not confined to materials already on hand. The determination of the kind of materials and the method of their acquirement are by the act confided to the discretion of the commission. There is no contention in the bill that such discretion has been abused or misused.
For the reasons indicated, the decree of the circuit court of DeKalb county must be and is affirmed.
THE NORTHWEST Park District, Appellee, vs. JAMES
W. HEDENBERG, Appellant.
Opinion filed April 22, 1915.
1. EMINENT DOMAIN-a petition should allege that property is necessary for the public use specified. A petition to condemn land for a park should allege that the property sought to be condemned is necessary for the public use specified.
2. Same-question of the petitioner's abuse of power is a preliminàry one. The question of abuse of power by the petitioner in condemning property for a park is a preliminary one, to be heard by the court before the jury trial.
3. Same—when motion to dismiss petition should be allowed. A motion to dismiss a condemnation petition upon the ground that the land sought to be condemned is not necessary for the public use should be allowed, where the petition does not clearly allege the necessity for the use of the property and no evidence is offered showing such necessity.
4. APPEALS AND ERRORS—abstract of record must be assumed to be correct. The abstract of record filed by the appellant must be assumed by the Supreme Court to be correct, as it is the duty of the appellee, if such abstract is incorrect or insufficient to present the errors relied upon, to prepare and file an additional abstract.
5. SAME—when party cannot raise question that bill of exceptions was not signed by right judge. Where a bill of exceptions signed by a certain judge and containing a statement that it contains all the evidence heard on the trial is O. K.'d by counsel, who also signs a stipulation that such bill of exceptions may be incorporated into the record instead of a copy, the party represented by such counsel cannot raise the question that another judge, who did not sign the bill of exceptions, heard a part of the evidence, there being nothing in the abstract to show that such was the fact.
6. EVIDENCE-evidence as to long-term leases of other property may or may not be competent in condemnation. In a condemnation case, evidence as to long-term leases of property other than that condemned, or the rental value of other property, may or may not be competent, depending upon the degree of similarity between the properties and the nearness in respect to time and distance; but a lease for a term of fifteen years can hardly be said to be a “long-term lease," as such term is ordinarily understood.
APPEAL from the County Court of Cook county; the Hon. FRANK G. PLAIN, Judge, presiding.
BRADLEY, HARPER & EHEIM, (THOMAS E. D. BRADLEY, of counsel,) for appellant.
STEDMAN & SOELKE, for appellee.
Mr. Justice CARTER delivered the opinion of the court:
This was a proceeding in the county court of Cook county brought by the appellee district to condemn land, including some owned by appellant, in the northwestern portion of Chicago, for a park. From the verdict of the jury and the judgment entered thereon as to his property appellant appealed to this court.
The Northwest Park District is a municipal corporation organized under an act to provide for the organization of park districts and the transfer of submerged lands to those bordering on navigable waters, in force July 1, 1895. (Hurd's Stat. 1913, p. 1765.) Appellant had made a contract to purchase this property January 24, 1914, but the deed conveying the same was not executed and delivered until April 2, 1914, six days after the petition for condenination was filed. Appellant thereafter filed a cross-petition setting out his interest in the property and stating that the land was not necessary for the public use in question. When the case was called for trial appellant called up the cross-petition and moved the court to dismiss the proceedings for that reason. Affidavits were offered in support of this motion, and, so far as the abstract shows, no evidence was offered by appellee showing the necessity for taking this property for the purposes of the district. The petition should have alleged that the property sought to be condemned was necessary for the public use specified. It contained no clear or specific allegation on this question and was faulty in that regard. The motion having been made to dismiss on the ground heretofore stated, the burden rested upon appellee to show the necessity for taking this land. The question of the abuse of power by a petitioner in condemning property for park uses is a preliminary one and must be heard by the court before the jury trial. There being no averment in the petition of necessity for the use of this property, and no proof having been offered by appellee showing such necessity, the court erred in overruling appellant's motion to dismiss the petition. City of Chicago v. Lehmann, 262 Ill. 468, and cited cases.
Counsel for the petitioner, however, argue that this motion to dismiss was heard before Judge John E. Hillskotter while the bill of exceptions was signed by Judge Frank G. Plain, and that as no bill of exceptions as to this question was signed by Judge Hillskotter the law will presume he acted on sufficient evidence to sustain his ruling on this motion. The abstract does not show anything as to two different judges having taken part in the trial nor as to what judge signed the bill of exceptions. Under the rules and practice of this court the abstract must be sufficient to present every error and exception relied upon. If it is not sufficient for a full understanding of the questions presented for decision the opposite party should file a further abstract, making the necessary corrections. The abstract on file must be assumed by this court to be accurate. (Gibler v. City of Mattoon, 167 Ill. 18; Rehfuss v. Hill, 243 id. 140.) Furthermore, assuming that this motion was heard and passed upon by Judge Hillskotter, the bill of exceptions containing this motion and affidavits in support is signed by Frank G. Plain as trial judge and O. K.'d as correct by counsel for appellee and states it contains all the evidence heard on the trial. Besides, counsel also signed a stipulation that the original bill of exceptions signed by Judge Plain should be incorporated into the record instead of a copy. This being so, the conclusion is inevitable that counsel agreed that Judge Plain should sign this bill of exceptions and that it is correct, and they cannot now raise this question. (Lederbrand v. Pickrell, 167 III. 624; Brethold v.