such rule or order in relation thereto as may be deemed reasonable and proper; and shall also have power to make all necessary rules and orders for notice to parties of the pendency of the proceeding, and to issue all process necessary to the execution of orders and judgments as may be entered. 6. Jury in vacation.) § 6. In cases fixed for hearing of petition in vacation, it shall be the duty of the clerk of the court in whose office the petition is filed, at the time of issuing summons or making publication, to write the names of each of sixty-four disinterested freeholders of the county, on sixtyfour slips of paper, and, in presence of two disinterested freeholders, caused to be selected from said sixty-four names twelve of said persons to serve as jurors-such selection to be made by lot and without choice or discrimination; and the said clerk shall thereupon issue venire, directed to the sheriff of his county, commanding him to summon the twelve persons so selected as jurors to appear at the courthouse in said county at the time to be named in the venire. 7. Impaneling jury.) § 7. The petitioner, and every party interested in the ascertaining of compensation, shall have the same right of challenge of jurors as in other civil cases in the Circuit Courts. If the panel be not full by reason of nonattendance, or be exhausted by challenges, the judge hearing such petition shall designate by name the necessary number of persons, of proper qualification, and the clerk or justice shall issue another venire, returnable instanter, and until the jury shall be full. 8. Oath of jury.) § 8. When the jury shall have been so selected, the court shall cause the following oath to be administered to said jury: You and each of you do solemnly swear that you will well and truly ascertain and report just compensation to the owner (and each owner) of the property which is sought to take or damage in this case, and to each person therein interested, according to the facts in the case, as the same may be made to appear by the evidence, and that you will truly report such compensation so ascertained: So help you God. 9. View of premises-Verdict.) § 9. Said jury shall, at the request of either party, go upon the land sought to be taken or damaged, in person, and examine the same, and after hearing the proof offered make their report in writing, and the same shall be subject to amendment by the jury, under the direction of the court or the judge, as the case may be, so as to clearly set forth and show the compensation ascertained to each person thereto entitled, and the said verdict shall thereupon be recorded: Provided, That no benefits or advantages which may accrue to lands or property affected shall be set off against or deducted from such compensation, in any case. (Birbeck, 70 Ill. 208; St. Louis & Southeastern Ry. Co. v. Teters, 68 Ill. 144; Jones v. Chicago & Iowa R. R. Co., 68 Ill. 380. 10. Judgment-Payment-Attorney fees.) § 10. The judge or court shall, upon such report, proceed to adjudge and make such order as to right and justice shall pertain, ordering that petitioner enter upon such property and the use of the same upon payment of full compensation as ascertained as aforesaid, within a reasonable time to be fixed by the court, and such order, with evidence of such payment, shall constitute complete justification of the taking of such property: Provided, That in case the petitioner shall dismiss said petition' before the entry of such order or shall fail to make payment of full compensation within the time named in such order, that then such court or judge shall, upon application of the defendants to said petition or either of them, make such order in such cause for the payment by the petitioner of all costs, expenses and reasonable attorney fees of such defendant or defendants paid or incurred by such defendant or defendants in defense of said petition, as upon the hearing of such application shall be right and just, and also for the payment of the taxable costs. (As amended by act approved May 14, 1897. In force July 1, 1897. L. 1897, p. 217. 11. Cross petition. § 11. Any person not made a party may become such by filing his cross petition, setting forth that he is the owner or has an interest in property, and which will be taken or damaged by the proposed work, and the rights of such last named petitioner shall thereupon be fully considered and determined. 12. Appeal.) § 12. In all cases, in either the Circuit or County Court, or before a circuit or county judge, an appeal shall lie to the Supreme Court. 13. Bond-Use of premises.) § 13. In cases in which the compensation shall be ascertained as aforesaid, if the party in whose favor the same is ascertained shall appeal such proceeding, the petitioner shall, notwithstanding, have the right to enter upon the use of the property upon entering into bond, with sufficient surety, payable to the party interested in such compensation, conditioned for the payment of such compensation as may be finally adjudged in the case, and in case of appeal by petitioner, petitioner shall enter into like bond with approved surety. Said bonds shall be approved by the judge before whom such proceeding shall be had, and executed and filed within such time as shall be fixed by said judge. (Mitchell v. Ill. & St. Louis R. R. & Coal Co., 68 Ill. 286. 14. Payment to County Treasurer, etc.) § 14. Payment of compensation adjudged may, in all cases, be made to the County Treasurer, who shall, on demand, pay the same to the party thereto entitled, taking receipt therefor, or payment may be made to the party entitled, his, her or their conservator or guardian. 15.-Judgment entered.) § 15. The court or judge shall cause the verdict of the jury and the judgment of the court to be entered upon the records of said court. 16. Repeal.) § 16. All laws and parts of laws in conflict. with the provisions of this act are hereby repealed: Provided, That this act shall not be construed to repeal any law or part of law upon the same subject passed by this General Assembly; but in all such cases this act shall be construed as providing a cumulative remedy. AN ACT for the further protection of the State institutions. (Approved and in force March 9, 1867. L. 1867, p. 165. 17. Lands of State institutions not taken.) § 1. Be it enacted by the People of the State of Illinois, represented in the General Assembly: That no part of any land heretofore or hereafter conveyed to the State of Illinois, for the use of any benevolent institutions of the State (or to any such institutions), shall be entered upon, appropriated or used by any railroad or other company for railroad or other purposes, without the previous consent of the General Assembly; and no court or other tribunal shall have or entertain jurisdiction of any proceeding instituted or to be instituted for the purpose of appropriating any such land for any of the purposes aforesaid, without such previous consent. Right to and conditions of. Through school lands. Black v. C. B. & Q. Ry., 243 Ill. 534. By county for county jail. County of Mercer v. Wolfe, 237 Ill. 74. Condemnation must be expressly and clearly conferred by statute on a corporation exercising it and must be for public use, and within the objects named by the statute. Gillette v. Aurora Railways Co., 228 Ill. 261. Any corporation having power to construct a commercial railroad is authorized to take property by condemnation. This does not apply to street railway corporations. Gillette v. Aurora Railways Co., 228 Ill. 261. Courts have power to decide whether a corporate charter is such as to allow condemnation along a certain route as outlined in the articles of incorporation. Gillette v. Aurora Railways Co., 228 Ill. 261. Land devoted to a public use cannot be condemned to a different public use, unless the Legislature expressly or by necessary implication authorizes it. Gillette v. Aurora Railways Co., 228 Ill. 261. Condemnation proceedings must conform to the statute. Ill. State T. Co. v. St. L. I. M. & S. Ry. Co., 208 Ill. 419. Condemnation for a public and a private use is unlawfulthe use must be entirely public. Gaylord v. Sanitary Dist., 204 Ill. 576. In condemnation, courts have no jurisdiction of lands entirely in another county, but have when one piece lies partly in two counties. T. M. & N. Ry. Co. v. Haws, 194 Ill. 92. The right to condemn private property is statutory. To lay tracks in or across city streets may be derived from the city— street railway. Harvey v. Aurora & Geneva Ry. Co., 186 Ill. 283 (296). Condemnation statutes are to be strictly construed. The right of a petitioner to condemn private property is a question of law for the court. Harvey v. Aurora & G. Ry. Co., 174 Ill. 295. Property cannot be taken without compensation. Extent of rule. Sec. 2, Art. 13, constitution. Epling v. Dickson, 170 Ill. 329. Private property can be taken for public use by condemnation or contract with the owner only-flooding of land by building of dam. Wilmington Water Power Co. v. Evans, 166 Ill. 548. Condemnation will not be allowed where there will result no different use of the property taken. St. L. A. & T. H. Ry. Co. v. Belleville Ry. Co., 158 Ill. 390 (394). Condemnation is a proceeding at law, not in equity. G. T. & C. G. R. R. Co. v. Walton, 150 I11. 428. In vacation. Condemnation proceedings in vacation-status of practice. Hartshorn v. Ill. Valley Ry. Co., 216 Ill. 392. Ordinance may control-License. The right of eminent domain may be restricted in its operation by an ordinance duly passed and accepted by a corporation. A provision that an elevated structure shall not be less than twenty (20) feet above any railroad track or right of way, is such a restriction, and will bind the corporation so that it cannot appeal to eminent domain. Peabody Coal Co. v. N. W. Elev. Ry. Co., 230 Ill. 214. Sec. 20, Chap. 114, as to condemnation is limited by an ordinance prescribing width of a right of way for an elevated road. Tudor v. C. & S. S. R. T. Co., 154 Ill. 129. License from city is not an essential to right to condemn a right of way over private property. Dowie v. C. W. & N. S. Ry. Co., 214 Ill. 49 (53). Suburban R. R. Co. v. Met "L" R. R. Co., 193 Ill. 217. Ligare v. C. M. & N. R. R. Co., 166 Ill. 249. By Commercial Railroad Company. A railroad corporation under the act of 1872 has power of eminent domain. A street railway company has no such power. Bradley Mfg. Co. v. Traction Co., 229 Ill. 170. |