Plaintiff, the Forest Preserve District of Du Page County (the District),appeals the trial court's entry of summary judgment in favor of defendants, theLoren and Gisela Brown Family Trust (the Browns), Bruce Gordon, Dartmoor HomesAcquisition Corp. (Dartmoor), and unknown others. On appeal, the District arguesthat the trial court erred in granting summary judgment in favor of defendants. In the nonpublishable portion of this opinion, we address the District'scontention that the trial court erred in denying the District's motion todisqualify the Browns' counsel. We also address therein the Browns' cross-appealof the trial court's orders striking portions of their traverse and motion todismiss and denying their motion to reconsider.

On May 19, 1998, the District passed Ordinance No. 98--206, whichauthorized the District's executive director, staff, and attorneys (collectively,the staff) to enter into negotiations for the acquisition of property owned bythe Browns. The ordinance provided in relevant part:

"WHEREAS, the Forest Preserve District of DuPage County, Illinoishas determined a valuation for said fee simple parcel which it believes torepresent a fair amount to be offered to the owners of said property.

NOW, THEREFORE, BE IT ORDAINED by the President and the Board ofCommissioners of the Forest Preserve District of DuPage County, Illinois,as follows:

1. That it is necessary and desirable that the real estatedescribed in Exhibit A and depicted in Exhibit B attachedhereto, be acquired in fee simple by the said Forest PreserveDistrict for one or more of the purposes set forth.

2. That the Executive Director, his staff and the Forest PreserveDistrict attorneys be, and hereby are, authorized to negotiatefor the acquisition of the property in fee simple described inExhibit A and depicted in Exhibit B.

3. That the Executive Director, his staff, and the ForestPreserve District attorneys be, and are hereby authorized, torespond to each individual property owner who expresses adesire to convey less than fee simple, either by less than theentire parcel of real estate or by conservation easement, byfully receiving the property owners proposal and submitting areport to the Forest Preserve District Land AcquisitionCommittee evaluating the extent to which said lesseracquisition compromises the need and desire for the fee simpleacquisition, and the cost of effectiveness of said compromise. No fee simple acquisition shall be reduced or altered withoutapproval of the President and Forest Preserve District Boardof Commissioners." Forest Preserve District of Du PageCounty, Ordinance No. 98--206 (eff. May 19, 1998).

The District and the Browns did not reach an agreement.

On June 2, 1998, the District passed Ordinance No. 98--228, which providedin relevant part:

"WHEREAS, on the 19th day of May, 1998, Ordinance No. 98--206 wasadopted providing for the negotiation for the acquisition of the propertydescribed in Exhibit A and depicted in Exhibit B attached hereto; and

WHEREAS, the Forest Preserve District of DuPage County, Illinois,has attempted to negotiate the purchase of said property but has beenunable to agree with the owners of the property concerning justcompensation.

NOW, THEREFORE, BE IT ORDAINED by the President and board ofCommissioners of the Forest Preserve District of DuPage County, Illinois,as follows:

1. That it is necessary and desirable that the real estatedescribed in Exhibit A and depicted in Exhibit B attachedhereto, be acquired in fee simple by the said Forest PreserveDistrict for one or more of the purposes set forth.

2. That the Executive Director, his staff and the Forest PreserveDistrict attorneys be, and hereby are, authorized to take thenecessary steps, either by negotiation or condemnation, toacquire title to the real estate described in Exhibit A anddepicted in Exhibit B attached hereto, and to continue tonegotiate for the acquisition of the property described inExhibit A and depicted in Exhibit B." Forest PreserveDistrict of Du Page County, Ordinance No. 98--228 (eff. June2, 1998).

On July 8, 1998, the District filed a complaint for condemnation. Thecomplaint named the Browns as owners of the real estate and listed defendantsBruce Gordon and Dartmoor Homes Acquisition Corp. as other interested parties. In response, the Browns filed a traverse and motion to dismiss, asserting, amongother things, that the complaint for condemnation was filed without proper andlawful authority.

[Nonpublishable material under Supreme Court Rule 23omitted here.]

Both sides moved for summary judgment on the traverse and motion todismiss. On November 29, 1999, the trial court granted summary judgment in favorof the Browns, holding that Ordinance No. 98--228, which authorized theinitiation of the condemnation proceedings, was invalid. In its memorandumopinion and order, the trial court found that the Ordinance "improperlydelegates the decision to condemn to the District's attorneys and staff." Thetrial court further found:

"The language of Ordinance [No.] 98--228 lacks any proper direction orlimitation to the [District's] staff and attorneys regarding the specificauthority to condemn. The broad language authorizing the District's staffto 'take the necessary steps' to acquire the property, 'either bynegotiation or condemnation' fails to meet the specificity mandated for aproper execution of condemnation authority. Ordinance No. 98--228 is voidbecause it unlawfully delegates discretionary power to staff andattorneys. The power to condemn is specifically vested by the IllinoisLegislature in the Commissioners of the [District] only."

The District's motion to reconsider was subsequently denied.

[Nonpublishable material under Supreme Court Rule 23omitted here.]

Amicus curiae briefs in support of the District have been filed in thismatter by the Village of Bartlett, the People of the State of Illinois, theIllinois Department of Transportation, the Illinois State Toll Highway Authority,the County of Du Page, the City of Naperville, the McHenry County PreservationDistrict, and the Homewood-Flossmoor Park District.

[Nonpublishable material under Supreme Court Rule 23omitted here.]

WHETHER THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT
IN FAVOR OF DEFENDANTS

The District argues that the trial court erred in entering summary judgmentin favor of the Browns. Summary judgment should only be granted when thepleadings, depositions, affidavits, and admissions show that there is no genuineissue of material fact and that the moving party is entitled to judgment as amatter of law. Largosa v. Ford Motor Co., 303 Ill. App. 3d 751, 753 (1999). Inruling on a summary judgment motion, a court must construe the evidence strictlyagainst the movant and liberally in favor of the nonmoving party. Largosa, 303Ill. App. 3d at 753. Our review of a trial court's order granting summaryjudgment is de novo. Largosa, 303 Ill. App. 3d at 753.

As a sovereign, the State has the inherent power to condemn property forpublic use. Forest Preserve District v. West Suburban Bank, 161 Ill. 2d 448, 453(1994). "The necessity or propriety of exercising the right of eminent domainis a political question,--one which belongs exclusively with the legislature todetermine." Village of Hyde Park v. Oakwoods Cemetery Ass'n, 119 Ill. 141, 149(1886). However, the legislature may delegate the power of eminent domain toother governmental bodies (City of De Kalb v. Anderson, 43 Ill. App. 3d 915, 917(1976)), and it is the province of the courts to determine whether that power hasbeen exercised within that grant (Forest Preserve District, 161 Ill. 2d at 453). A governmental body has only such powers of eminent domain as are conferredupon it by the appropriate legislative body, and a statute or ordinanceconferring the power of eminent domain must be strictly construed. Village ofRound Lake v. Amann, 311 Ill. App. 3d 705, 712 (2000); Forest Preserve Districtv. Estes, 222 Ill. App. 3d 167, 175 (1991). The right of eminent domain by adepartment of government can be exercised only when such grant is specificallyconferred by legislative enactment, and then only in the manner and by the agencyso empowered. Forest Preserve District v. City of Chicago, 159 Ill. App. 3d 859,861 (1987).

Section 6 of the Downstate Forest Preserve District Act (the Act) (70 ILCS805/6 (West 1998)) grants the District the power to acquire land by purchase orcondemnation. 70 ILCS 805/6 (West 1998). The Browns do not contend that section6 vested in the District undue discretion to condemn land; rather, they assertthat the District, in enacting Ordinance No. 98--228, unlawfully delegatedlegislative power to its staff. Agreeing with the Browns, the trial courtdeclared that the language of the ordinance left "the decision to condemn up tothe executive director, his staff and the Forest Preserve District attorneys." Further, the ordinance failed "to set forth any specific directions orlimitations regarding the specific decision to condemn; therefore, legislativepower has been improperly delegated to the District's staff."

A law vesting discretionary power in an administrative officer mustproperly define the terms under which the discretion is to be exercised. In reApplication for Judgment & Sale of Delinquent Properties for the Tax Year 1989,167 Ill. 2d 161, 176 (1995). Intelligible standards must be provided to guidethe officer in the execution of the delegated power. Hoogasian v. RegionalTransportation Authority, 58 Ill. 2d 117, 130 (1974). However, criteria sonarrow as to govern every detail necessary in the execution of the delegatedpower is not necessary. See East St. Louis Federation of Teachers, Local 1220v. East St. Louis School District No. 189 Financial Oversight Panel, 178 Ill. 2d399, 423 (1997).

In construing the challenged ordinance, we set forth and apply the sameprinciples of construction that we would in construing a statute. See Katz v.City of Chicago, 177 Ill. App. 3d 305, 310 (1988) ("the rules governing theconstruction and interpretation of statutes also apply to the construction ofordinances"). Although mindful that an ordinance delegating the power of eminentdomain is to be strictly construed (Amann, 311 Ill. App. 3d at 712), we are asmuch aware that an ordinance is presumed valid and that the burden ofestablishing invalidity rests upon those who challenge the ordinance (Village ofSpring Grove v. Doss, 202 Ill. App. 3d 858, 863 (1990)). Furthermore, statutesand ordinances should be construed in such a manner as to avoid doubts as totheir validity. Triple A Services, Inc. v. Rice, 131 Ill. 2d 217, 227 (1989). The cardinal rule of statutory construction is to ascertain and effectuatethe intent of the legislature. Lulay v. Lulay, 193 Ill. 2d 455, 466 (2000);Paris v. Feder, 179 Ill. 2d 173, 177 (1997). The best evidence of legislativeintent is the language employed in the statute itself, which must be given itsplain and ordinary meaning. Lulay, 193 Ill. 2d at 466; Paris, 179 Ill. 2d at177. The statute should be construed as a whole, with each section read inconjunction with every other section. Lulay, 193 Ill. 2d at 466; Paris, 179 Ill.2d at 177. A court is not permitted to ignore the plain meaning of the statuteby reading into it exceptions, limitations, or conditions that the legislaturedid not express. Lulay, 193 Ill. 2d at 466; Eagan v. Chicago Transit Authority,158 Ill. 2d 527, 532 (1994). Where the statutory language is clear andunambiguous, a court must give it effect without resort to other aids ofconstruction. Lulay, 193 Ill. 2d at 466; Paris, 179 Ill. 2d at 177.

We see no ambiguity in the language of Ordinance No. 98--228. Inconstruing the ordinance as a whole, we of course look to all sections of theordinance, including the section that references Ordinance No. 98--206. Thus,to read Ordinance No. 98--228 in its entirety, we in turn examine Ordinance No.98--206. We conclude that, although the District therein "authorized" its staffto negotiate with the Browns for the acquisition of their property, the Districtclearly was directing its staff to negotiate. The Browns do not suggest that theDistrict formally decided that it was necessary to acquire the property,proceeded to determine a fair price for the property, and then gave its staff thechoice of whether to negotiate. Giving, as we must, the same meaning to the term"authorize" in both ordinances (see In re Application for Tax Deed, 311 Ill. App.3d 440, 444 (2000)), we read Ordinance No. 98--228 as directing the District'sstaff to acquire the Brown's property either through negotiation or condemnation.

We also note the District's statement in Ordinance No. 98--206 that it haddetermined what it viewed as a fair price for the Brown's property. This ofcourse means, and the Browns do not dispute, that, throughout the course of thenegotiations authorized by Ordinance No. 98--206, there was an upper limit on theprice the District staff could offer for the property. We further observe thatOrdinance No. 98--206 permitted the District's staff to entertain an offer by theBrowns to convey less than a fee simple interest and required the staff to submitan evaluation of such an offer to the District's land acquisition committee. Lastly, we note that the acceptance of such an offer was conditioned on theapproval of the District. There is no dispute that these guidelines remained inforce during the continued negotiations authorized by Ordinance No. 98--228.

We emphasize that the failure of the Browns and the District staff to agreeupon a price for the property was expressed as a reason for the adoption ofOrdinance No. 98--228. Significantly, while authorizing the use of condemnationproceedings, Ordinance No. 98--228 did not order that negotiations cease betweenthe Browns and the District staff. The Browns recognize that the "the District'sstaff is always free to attempt to settle a condemnation case without litigation"and that "[t]here is always an implied right to negotiate towards settlement." Indeed, had Ordinance No. 98--228 simply directed the District's staff toinstitute condemnation proceedings, and, before the complaint was filed, had theBrowns contacted the staff with an acceptance of the last offer made by theDistrict's staff before the ordinance was passed, reading the ordinance asrequiring the staff to reject the acceptance and file a lawsuit simply becausethe ordinance directed it to file a condemnation complaint would be absurd. Statutes are to be construed in a manner that avoids absurd or unjust results. Croissant v. Joliet Park District, 141 Ill. 2d 449, 455 (1990). In authorizing negotiations with the added recourse of condemnation, Ordinance No. 98--228merely makes explicit the implied authority to negotiate that the Browns concedeexists.

Although the Browns recognize that the District's staff is alwaysauthorized to negotiate to seek the settlement of a condemnation suit withoutlitigation, they insist that Ordinance No. 98--228 is invalid because it leavesto the staff the decision whether to condemn the Browns' property without furthernegotiation, even though negotiations following the decision to condemn mightdispense with the need for adjudication. We confess to having some difficultyin grasping precisely the nature of the Browns' argument on this point. At onepoint, the Browns argue that Ordinance No. 98--228 is invalid because it grantedthe District's staff "the power to determine whether to negotiate a purchase ofthe Brown's property or to file condemnation [sic] to acquire the property."(Emphasis added.) At another point, they assert that the problem is that"Ordinance 98--228 did not contain an unequivocal direction to condemn; itcontained a grant of discretion to decide whether to condemn the Brown property." (Emphasis added.) At yet another point, they maintain that the ordinance isflawed because "elected officials that make up the District's Board ofCommissioners must make the determination that negotiations have failed anddirect condemnation," and "the District never made a definitive finding that itwas necessary to acquire the property through the use of the condemnation power." (Emphases added.)

The Browns confuse two vitally distinct claims: first, the claim thatOrdinance No. 98--228 is invalid because it leaves to the District's staff thedecision to file condemnation proceedings against the Browns' property and,second, the claim that the ordinance is invalid because it leaves to theDistrict's staff the political decision of whether the exercise of the power ofeminent domain against the Browns' property is appropriate.

Surely, the District could not permissibly have delegated to its staff thesensitive policy decision of whether a particular parcel of property should beseized under the power of eminent domain. As we noted above, "[t]he necessityor propriety of exercising the right of eminent domain is a political question,--one which belongs exclusively with the legislature to determine." Village ofHyde Park, 119 Ill. at 149. In our view, in adopting Ordinance No. 98--228, theDistrict did not abdicate that crucial political role. Ordinance No. 98--228 wasadopted expressly because the negotiations for the Browns' property hadtheretofore failed. The negotiations had failed, yet it remained "necessary anddesirable" to acquire the Browns' property. To the end of acquiring theproperty, the District gave its staff an additional means of acquisition:condemnation proceedings. We do no violence to the plain language of theordinance in concluding that, in light of the failure of previous negotiationsand the continued necessity of acquiring the Browns' property, the Districtauthorized its staff to institute condemnation proceedings to acquire theproperty. We further decide, consistent with the language of the ordinance, thatthe District would not have authorized condemnation proceedings had it notconcluded that it was politically appropriate to condemn the Browns' property--or, in the words of the ordinance itself, that it was "necessary and desirable"to acquire the Browns' property "for one or more of the purposes" set forth inthe ordinance. By the time the District staff was given the power to institutecondemnation proceedings, the District had already determined the politicalpropriety of exercising the power of eminent domain against the Browns' property. In giving its staff the additional recourse of condemnation proceedings,the District did not empower it to decide the political issue of whether it wasappropriate to condemn the Browns' property, for the District itself had alreadymade that determination. Granted, the staff was given the discretion of instituting condemnation proceedings immediately or negotiating further, but, aswe noted above and as conceded by the Browns, the option of negotiating would beimplied had the District simply ordered the staff to condemn. The negotiatingdiscretion granted the staff by Ordinance No. 98--228 was not without bounds,however. In negotiating further with the Browns, the staff would be guided bydiscrete parameters consisting of a maximum price it could offer as well asspecific requirements concerning the acceptance of an offer of less than a feesimple conveyance.

Ordinance No. 98--228 leaves no doubt of the District's steadfast intentionto acquire the property--through either negotiation or condemnation--and itsbelief in the propriety of either means of acquisition. We find the District'sstaff was given appropriate guidelines to execute the directive to acquire theproperty.

To say that the District staff could not properly be vested with the powerto determine the political propriety of exercising the power of eminent domainagainst a particular parcel of property is not to imply that it could not, underany scenario, be given the discretion to decide when to institute condemnationproceedings against a parcel of property that the District had already determinedcould properly be seized under the power of eminent domain. The Browns cite noauthority for the proposition that a governmental body that has been accorded thecondemnation power by statute cannot entrust to its staff the decision toinstitute condemnation proceedings against a particular parcel of property thatthe condemning authority already determined could be seized under the power ofeminent domain, as long as the decision to institute such proceedings is boundedby reasonably definite standards. On the contrary, the Browns concede thelegitimacy of such a delegation. They assert that "Ordinance 98--228 mustcontain specific directions or limitations regarding the specific decision tocondemn in order to insure that this legislative power [of eminent domain] is notbeing exercised by the District's staff and its attorneys." At another point,they complain that "[n]o guidelines were given on the face of Ordinance 98--228to guide [the District's staff] in determining when attempts to purchase theproperty through negotiations should end and condemnation should be filed." Weare provided no reason to believe that a governmental body entrusted with thepower of eminent domain cannot strive for efficiency in its operations. "Government could not be carried on if nothing could be left to the judgment anddiscretion of administrative officers ***." Block v. City of Chicago, 239 Ill.251, 262 (1909).

The Browns claim that "[n]o guidelines were given on the face of OrdinanceNo. 98--228 to guide [the District's staff] in determining when attempts topurchase the property through negotiations should end and condemnation should befiled." We reject the claim. We noted above that it is clear from the languageof Ordinance No. 98--206, referenced in Ordinance No. 98--228, that theDistrict's staff was given a maximum price to offer the Browns and was subjectto specific requirements concerning the acceptance of offers of less than a feesimple conveyance. The parties do not dispute that these restrictions alsoapplied to the authority to negotiate granted by Ordinance No. 98--228. In ourview, these restrictions adequately curtailed the staff's discretion. Moreover,as explained above, we read Ordinance No. 98--228's authorization of the staffto acquire the Browns' property either by negotiation or condemnation as a cleardirective to the staff to acquire the property. Thus, if, in the exercise of itscurtailed negotiating discretion, the staff concluded that further negotiationswere futile, it had no option but to file a condemnation suit.

The Browns offer no authority to persuade us that the restrictions on thestaff's discretion were inadequate. The cases they cite all concern delegatedpower that was not circumscribed by even general mandates. In People ex rel.Healy v. Clean Street Co., 225 Ill. 470, 480-81 (1907), the court struck down astatutory provision authorizing city authorities to "take such steps as theymight deem effective to prevent the casting of waste paper and other litter uponthe streets" because the city officials "were not even given general directionsas to the manner in which they were to exercise the power conferred upon them."

In City of Sullivan v. Cloe, 277 Ill. 56, 61-62 (1917), the courtinvalidated an ordinance imposing a fine for affixing anything to any permanentfixtures previously installed on city property without first obtaining thepermission of the mayor and the members of the city's street and alley committee. The court observed that the ordinance did not attempt to "specify thecircumstances and conditions under which such permission shall be granted andprescribe the rules and regulations that are to guide the officers in grantingor refusing such permission." City of Sullivan, 277 Ill. at 62.

In City of Kankakee v. New York Central R.R. Co., 387 Ill. 109, 117 (1944),the court invalidated an ordinance authorizing a city's building inspector tosummarily abate as a nuisance the emission of dense smoke from any locomotive,tar kettle, steam machine, open fire, smoke stack, or chimney of any building. The court reasoned that there was "nothing in the ordinance which indicates thatfull discretion was not given to the building inspector." City of Kankakee, 387Ill. at 117.

In City of Chicago v. Pennsylvania R.R. Co., 41 Ill. 2d 245, 252 (1968),the court invalidated a statutory provision permitting city highway authoritiesto create exceptions to a general statutory bar on the placement of advertisingsigns on or over highways because the legislature failed to supply "any rules orstandards to guide the exercise of [the highway authorities'] discretion" inmaking exceptions. (Emphasis in original.)

In City of Watseka v. Blatt, 320 Ill. App. 191, 200 (1943), the court heldthat an ordinance subjecting the location and operation of a junkyard in anyindustrial district to the approval of a board of zoning appeals was invalid inpart because it "specifie[d] no terms or conditions for such approval, but [left]it to the caprice of the board of zoning appeals."

In contrast to the authorizing provisions in the above cases, Ordinance No.98--228 circumscribed the discretion of those it empowered. The District's staffcould only offer the Browns up to a certain amount of money before the staff wasrequired to institute condemnation proceedings. Also, in addition to therequirement that all offers of less than a fee simple conveyance were to beconveyed to the District's land acquisition committee, the District itself hadto approve the acceptance of such offers. Obviously, the District did notattempt to govern the fine mechanics of the negotiations in passing theordinance, but, as indicated above and as conceded by the Browns themselves, suchcontrol was not required.

The Browns criticize as too broad the ordinance's authorization for theDistrict's staff "to take the necessary steps" to acquire the land. However, theBrowns do not offer a suggestion as to what step(s) the District's staff mighthave taken other than the enumerated steps of negotiation and condemnation. Wecannot think of any and, therefore, cannot declare that phrase confers unduediscretion. Instead, we conclude that the District's staff was guided byintelligible standards imposed by the District--namely, an upper limit on theprice it could offer the Browns for the property and specific requirementsconcerning the acceptance of offers of less than a fee simple conveyance--indeciding when to institute condemnation proceedings.

Mindful that the aim of statutory construction is to divine and effectuatethe intent of the legislature, we determine that the District's intent in passingOrdinance No. 98--228 clearly was to acquire the Browns' property. Thenegotiations authorized by Ordinance No. 98--206 had failed, yet the Districtcontinued to consider it necessary and desirable to acquire the Browns' property. Considering it appropriate to exercise the power of eminent domain to acquire theproperty, the District empowered its staff to acquire the property either throughcontinued negotiations within certain guidelines imposed by the District orthrough condemnation proceedings. Because we decide that the challengedordinance did not vest the District's staff with the power to determine thepolitical propriety of condemning the Browns' property, but merely authorized thestaff to effectuate an already approved condemnation action or to negotiatefurther with the Browns within definite guidelines set by the District, weconclude that Ordinance No. 98--228 did not improperly delegate the power ofeminent domain to the District's staff. Therefore, the trial court erred as amatter of law in granting the Browns' motion for summary judgment on the traverseand motion to dismiss.

[Nonpublishable material under Supreme Court Rule 23omitted here.]

In the nonpublishable portion of this opinion, we affirmed the portions ofthe Du Page County Circuit Court's judgment that (1) denied the District's motionto disqualify the Browns' counsel and (2) granted the District's motion to strikeportions of the Browns' traverse and motion to dismiss.

For the reasons stated above, we reverse the judgment of the circuit courtof Du Page County as to the granting of summary judgment, and the cause isremanded.

Affirmed in part and reversed in part; cause remanded.

GEIGER, J., concurs.

JUSTICE RAPP, dissenting:

I respectfully dissent. This case concerns two of the most significant actsof government, the taking of private property for public use and the expenditureof large sums of the taxpayers' money to do so.

In dissenting from the majority, I agree with the decision of the trialcourt that Ordinance No. 98--228 is invalid because it amounts to an improperdelegation of discretionary authority. I disagree with the trial court'sconclusion that section 7--102 of the Code of Civil Procedure (735 ILCS 5/7--102(West 1998)) when applied to nonresident property owners is constitutional. Themajority has affirmed the trial court on this issue in the unpublished portion ofits opinion. Therefore, I disagree with the majority on both of these issues.

Section 6 of the Downstate Forest Preserve District Act (the Act) grants theDistrict the power to acquire land by purchase or condemnation. 70 ILCS 805/6(West 1998). The power granted under the Act is vested in the District, not inits staff or attorneys. Ordinances passed by a department of government may, ofcourse, be enforced or carried into effect by staff, attorneys, or othersdesignated for that purpose. See People ex rel. Healy v. Clean Street Co., 225Ill. 470, 479 (1907); see also City of Sullivan v. Cloe, 277 Ill. 56, 59 (1917). However, a department of government cannot delegate discretionary authority vestedin it by statute. Clean Street Co., 225 Ill. at 479; City of Sullivan, 277 Ill.at 59. This is because departments of government are creatures of the legislatureand can exercise such powers, and only such powers, as are expressly conferredupon them by the law of their creation, or such powers as are necessary to carryinto effect the powers expressly granted to them. City of Sullivan, 277 Ill. at59.

The ordinance passed by the District delegated the uncontrolled discretionto its staff and attorneys to decide not only when but also whether to acquire theBrowns' property by negotiation or condemnation. Contrary to what the majorityreports, the ordinance gave no guidelines or direction to the District staff andattorneys. The majority attempts to "bootstrap" its argument by incorporatinginto Ordinance No. 98--228, by reference, Ordinance No. 98--206 and its clausesand directions. Ordinance 98--206 was the prior adoption of the District thatauthorized staff and counsel to negotiate for the acquisition of the Browns'property. Ordinance No. 98--228, which authorizes but does not direct the filingof a lawsuit to condemn, merely recites that the previous ordinance (No. 98--206)was adopted to provide for negotiation. Using Ordinance No. 98--206, the majorityfinds reasonably definite standards in Ordinance No. 98--228 and adds that "[t]heparties do not dispute that these restrictions also applied to the authority tonegotiate granted by Ordinance No. 98--228." Slip op. at 19. This statement isnot supported by the briefs or arguments of the Browns. They have steadfastlyargued that Ordinance No. 98--228 lacks any guidelines or reasonably definitestandards to direct the District's staff and counsel.

I believe that the power vested in the District by the Act involves theexercise of judgment and discretion and is of such a character that it cannot bedelegated by it to others, to be arbitrarily exercised by them. An ordinancevesting discretionary power in an administrative officer, without properlydefining the terms under which discretion is to be exercised, is void as anunlawful delegation of legislative authority. See City of Kankakee v. New YorkCentral R.R. Co., 387 Ill. 109, 117 (1944). To be valid, the ordinance shouldspecify the circumstances and conditions under which the staff or attorneys shouldproceed with negotiation or condemnation and provide directions to guide the staffor attorneys in proceeding with negotiation or condemnation. See City ofSullivan, 277 Ill. at 59.

I agree with the majority when it reflects on the reality that cases of thisnature are settled both before and after the actual filing of the eminent domainproceedings. I also acknowledge, as the majority did, that several governmentalbodies actively engaged in condemnation proceedings have filed amicus briefswherein they basically support the District because the District's Ordinance No.98--228 is in essentially the same format that they use. They urge that theycannot all be in error. Yet they have not faced the argument presented in thiscase.

There is another compelling factor that emphasizes the District'sresponsibility to both its constituents (the taxpayers) and the owner of theproperty to be taken. Section 7--123 of the Code of Civil Procedure (735 ILCS5/7--123 (West 1998)) provides that the District will become responsible for thepayment of all costs, expenses, and reasonable attorney fees of the Browns if theDistrict is not successful in acquiring the property by condemnation. See Villageof Cary v. Trout Valley Ass'n, 297 Ill. App. 3d 63 (1998). It is apparent, then,that deciding whether and when to condemn is a very important act on behalf of theDistrict. Ordinance No. 98--228 allows staff and counsel to decide whether andwhen they will expose the District to the additional liabilities encompassed insection 7--123.

Accordingly, I believe that Ordinance No. 98--228, authorizing theDistrict's staff and attorneys to acquire the Browns' land by "negotiation orcondemnation," is void as an unlawful delegation of discretionary authority. Ifurther believe that such provision is an inseparable part of the ordinance andof such character that the ordinance would not have been adopted but for suchprovision. See City of Sullivan, 277 Ill. at 63. Because I believe that theordinance underlying the condemnation action was void, I would hold that the trialcourt did not err in granting summary judgment in favor of defendants.

The majority has chosen, in its opinion, not to publish its decision to denythe Browns' cross-appeal. The Browns had filed a traverse and motion to dismiss,asserting no bona fide attempt by the District to negotiate and agree upon justcompensation, an improper and unnecessary purpose in taking, and a taking inexcess of the District's needs. Dartmoor filed a similar traverse and motion todismiss. The trial court had dismissed the allegations that the District did notmake a bona fide attempt to agree on just compensation. The dismissal was basedupon the statutory provision that has been interpreted to require the District tonegotiate in good faith, but makes no such requirement when the owner is incapableof consenting, the owner's name or residence is unknown, or the owner is anonresident of this state (735 ILCS 5/7--102 (West 1998)). The Brown Family Trustis not a resident of this state, and the Browns were denied the right to arguethat, because the Browns had previously entered into a contract for the sale ofthe same property for $3.25 million, the District's offer of $1.22 million as justcompensation was not in good faith. Evidence was not taken on the issue of thepropriety of the District's offer because the Browns, being nonresidents, were notentitled to be dealt with in the same good faith as an Illinois resident.

I believe that section 7--102 of the Code of Civil Procedure isunconstitutional because it denies equal protection to out-of-state owners ofIllinois property (U.S. Const., amend. XIV). Requiring good faith only as toIllinois residents is arbitrary and capricious as applied in the year 2000. Perhaps it was a necessity in 1894, when our means of communication andtransportation would have placed a real barrier in the early condemnationproceedings before the advent of the 20th Century. Today there is no conceivablerational basis for such a distinction. Consider the present practices in placeto contact owners. Tax bills are mailed to the owner's residence, wherever thatmight be, and not just to the location of the property. The availability of modernmethods to locate property owners is almost limitless. The use of wireless andland phone lines for conversation, facsimile transmission, and e-mail are presentand used every day by millions of people. In my opinion, it is a violation ofequal protection, and the traverse for failure to make a "good faith" effort tonegotiate an agreement before filing such an action to condemn should have goneto a hearing on the factual issues presented.