# People Ex Rel. Adamowski v. Chicago Land Clearance Commission > Illinois Supreme Court · May 21, 1958 · 14 Ill. 2d 74 URL: https://www.frixlaw.com/law-library/cases/9884668 ## Case - **Full name:** The People Ex Rel. Benjamin S. Adamowski, Appellant, vs. Chicago Land Clearance Commission, Appellee.—(Ralph J. Finitzo El Al., Intervenors, Appellants.) - **Court:** Illinois Supreme Court - **Decided:** May 21, 1958 - **Citations:** 14 Ill. 2d 74; 150 N.E.2d 792; 1958 Ill. LEXIS 317 - **Precedential status:** Published - **Opinion:** Dissent by Keingbiee - **Judges:** Elsa C. Beck - **Cited by:** 15 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9884668 ## Opinion text Mr. Justice Keingbiee, dissenting: In my opinion the amendatory act attempts to confer power to take private property for other than a public use, in plain violation of the constitution. Under the statute as it existed prior to the amendments, vacant platted land of the described character could be acquired by condemnation only where it was “to be developed for predominantly residential uses.” In People ex rel. Gutknecht v. City of Chicago, 414 Ill. 600 , where this court upheld the power as so limited, it was pointed out that an acute housing shortage existed; that such vacant areas are incapable of development for housing purposes by private enterprise; and that “The Commission cannot acquire property by eminent domain until approval of a plan for its development for predominantly residential use by the Commission, the State Housing Board, and the City Council.” By the present amendments this restriction on the use for which the land may be taken is eliminated. It is provided in effect that platted land of the designated type may be condemned for any use, if residential development thereof is not feasible; and the former requirement that condemnation must be preceded by an approved development plan has been eliminated. I can see here no semblance of public use to justify an exercise of the eminent domain power. It is said that acquisition of the land by the Commission renders it marketable and thus accomplishes a public purpose irrespective of the manner of its development. Doubtless there is a public interest in the marketability of land, but a mere public purpose for the taking is not equivalent to a public use of the land. The power of eminent domain exists not to remedy evils but to acquire property needed for public use. It is the proposed use or development of the property which must be looked to in determining whether it may be taken by condemnation. The fact that general prosperity and public welfare will be promoted is not enough. As this court said in Cleveland, Cincinnati, Chicago and St. Louis Railway Co. v. Polecat Drainage District, 213 Ill. 83 , “the law must control the use to1 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.” Under the provisions of the present amendments vacant land of the described character, if it is not feasible for residential development, may be developed for any other use whatever. In my view such a taking clearly disregards constitutional requirements for an exercise of eminent domain. The presence of factors rendering land unmarketable, or creating hazards to health, safety, morals, or general welfare, may provide justification for appropriate measures under the police power, but until now they have never been deemed sufficient to warrant a taking by condemnation. Police power and eminent domain are distinct powers of government (Sanitary District of Chicago v. Chicago and Alton Railroad Co. 267 Ill. 252, 256-257 ; City of Chicago v. Bowman Dairy Co. 234 Ill. 294, 300-301 ;) and the requirements for a valid exercise of the one differ from those which apply to the other. In City of Belleville v. St. Clair County Turnpike Co. 234 Ill. 428 , this court explained, at page 439, that “Under the police power the public welfare is promoted by regulating and restricting the use of property; under the exercise of the right of eminent domain the public welfare is promoted by the actual talcing of the property for some particular use.’1 [Emphasis supplied.] In American Jurisprudence it is pointed out that “the police power, so far as it relates to property, is a power to regulate the use of property and is negative or inhibitory in its character. A man cannot be compelled under the police power to devote his property to any particular use, however advantageous to himself or beneficial to the public, although he may be compelled to refrain from any use which is detrimental to the public.” ( 11 Am. Jur. 1013 , Constitutional Law, sec. 268; see, also, City of Chicago v. Wells, 236 Ill. 129 .) Whenever a police regulation bears a substantial relation to the health, safety, morals and welfare of the public it must be sustained, but if it does not bear a material and definite relation to such interests it is void. (People ex rel. Kirby v. City of Rockford, 363 Ill. 531 .) It will be observed, therefore, that the police power is subject in its exercise to constitutional limitations of a different nature than those which attach to the power of eminent domain. (Slack v. Building Inspector of Town of Wellesley, 262 Mass. 404 , 160 N.E. 284 .) Where it is sought to take private property, rather than merely to regulate its use, a different test applies. It is not enough to show a general relationship to public health, safety, morals, or welfare. The inquiry relates, instead, to the proposed use of the property. “It is to be observed that the courts distinguish between a use which is public and an interest which is public. Where there is simply a public interest, as distinguished from a public use, the power of eminent domain cannot be exercised.” 18 Am. Jur. 663 , Eminent Domain, sec. 36. Under the present amendments no particular use of the property is prescribed. It is taken, not because of its usefulness, but because of factors tending to render it unmarketable. The purpose is not to use the property but to remedy evils. If a legitimate public interest exists in the marketability of vacant lands, grounds may be present for appropriate measures under the police power. But unless there is a public use for the land, it cannot be taken from its owner without his consent. Private property cannot be condemned on the ground that the general prosperity of the State or community would be promoted thereby, nor is a mere relation to the objects of police power sufficient. (Cleveland, Cincinnati, Chicago and St. Louis Railway Co. v. Polecat Drainage Dist. 213 Ill. 83 .) The right of property is a fundamental right and its protection is one of the most important objects of government. (Schiller Piano Co. v. Illinois Northern Utilities Co. 288 Ill. 580, 587 .) The power to take from a citizen his property without his consent is a power “fraught with grave responsibility,” (Department of Public Works and Bldgs. v. Ryan, 357 Ill. 150, 161 ,) and can be exercised only within constitutional limitations on the nature of the use to which the property is to be put. I think the 1955 amendments in question exceed those limitations and should be declared void. Mr. Justice House joins in this dissenting opinion. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9884668. Public record. Not legal advice.