specially concurring:
The bottom line of the majority opinion is correct. The city of Peoria should not prevail in this eminent domain proceeding. Thus, the judgment of the trial court must be reversed.
The majority opinion, however, grounds its reversal on the city’s failure to have held a referendum but ignores the core issue of the city’s power to condemn property outside its corporate limits. In this case it should be held that the city lacks the power to condemn. Hence, the question of holding or not holding a referendum would be, under such circumstance, immaterial.
In the instant case, the city of Peoria is attempting to condemn 80 acres of land, ostensibly for the expansion of Robinson Park, which is on the north end of the city. This land is not within the corporate limits of the city. It is located within the Medina Township and the Chillicothe Township Park District, and is partly bluff land and partly productive farmland. The property in question is neither adjacent nor contiguous to the boundaries of the city because it is separated from the city by a 66-acre strip of park owned by the Medina Township.
It is commonly known, though officially unacknowledged, that this acquisition is sought as part of a tax-grab package by the city of Peoria in its continuing efforts to move the city limits north as far as Mossville so as to acquire the Caterpillar Tractor plant in that area for taxing purposes. In this case, the city’s interest in acquiring additional land for park purposes is a thinly disguised subterfuge.
In support of its authority to condemn extraterritorially, the city relies upon section 11 — 61—1 of the Illinois Municipal Code (Ill. Rev. Stat. 1981, ch. 24, par. 11 — 61—1), which provides as follows:
“The corporate authorities of each municipality may exercise the right of eminent domain by condemnation proceedings in conformity with the provisions of the constitution and statutes of the State of Illinois for the acquirement of property useful, advantageous or desirable for municipal purposes or public welfare including property in unincorporated areas outside of but adjacent and contiguous to the municipality where required for street or highway purposes by the municipality.”
The city argues that section 11 — 61—1 should be read in conjunction with section 11 — 95—1 of the Illinois Municipal Code (Ill. Rev. Stat. 1981, ch. 24, par. 11 — 95—1), which provides in relevant part as follows:
“The corporate authorities of every municipality with a population of less than 500,000 may dedicate and set apart for use as playgrounds, or recreation centers, any land or buildings which are owned or leased by the municipality and are not dedicated or devoted to another and inconsistent public use. Such a municipality, in such manner as provided by law for the acquisition of land or buildings for public purposes by the municipality, may acquire or lease land or buildings, or both, within or beyond the corporate limits of the municipality, for playgrounds and recreation centers.” (Emphasis added.)
Apparently the city argues that the words “*** in such manner as provided by law for the acquisition of land ***” refer to the condemnation power found in section 11 — 61—1; and, thus, the city can condemn land both within and without its boundaries.
There is a basic rule that municipalities do not have powers extending beyond their corporate boundaries except as specifically conferred or necessarily implied by statute. (City of Rockford v. Hey (1937), 366 Ill. 526, 533; City of Carbondale v. Van Natta (1975), 61 Ill. 2d 483, 485; Commercial National Bank v. City of Chicago (1982), 89 Ill. 2d 45, 79.) It appears that section 11 — 61—1 is simply a general statement of a municipality’s authority to condemn property within its own borders. It speaks of an authority to condemn extraterritorially only with regard to streets and highways.
The city, in support of its claim, relies upon the holding in Village of Deerfield v. Rapka (1973), 54 Ill. 2d 217. In that case, the supreme court, despite the compelling reasoning in the dissent of Justice Goldenhersh and joined by Justice Underwood, held that the village of Deerfield had the authority to condemn 127 acres of land lying outside but immediately adjacent to the plaintiff's corporate limits.
The Deerfield holding must be reevaluated: That decision overmled a cogent unanimous opinion of the Second District Appellate Court which had affirmed the dismissal of the lawsuit by the trial judge. (Village of Deerfield v. Rapka (1971), 132 Ill. App. 2d 74.) Ten years have passed since the supreme court rendered its Deerfield opinion. Two members of the majority remain on the court. Two members of the dissent remain on the court. Three members of the court are new members. The rationale of the trial judge, the unanimous appellate court and the two dissenting members of the supreme court compellingly dictate a reconsideration and reevaluation of that 10-year-old decision.
If the supreme court is not to reevaluate its decision in Village of Deerfield, then the situation is one that ought to be addressed by the General Assembly. Otherwise, the people of Illinois could be confronted by the spectacle of cities condemning land for playground and recreational purposes as far removed from the city boundaries as city finances and the geographic limits of the State of Illinois would allow. The possibilities are endless and subject to great abuse. The only limiting factor, theoretically, is financial. Cities ought not be in the business of using eminent domain proceedings to condemn property for playground and recreational purposes outside their corporate limits. The statutes do not permit it. And to the extent that Village of Deer-field purports to authorize such practice, that decision should be reconsidered.
A grant of the power of eminent domain is subject to strict construction against the entity exercising the power since its exercise is in derogation of the rights of the citizen. (Forest Preserve District v. Wike (1954), 3 Ill. 2d 49, 54.) In People ex rel. City of Salem v. McMackin (1972), 53 Ill. 2d 347, 366, the supreme court noted that there “is a distinction between the right to acquire property outside of its corporate limits and the power to exercise rights of sovereignty over such property.” Examples of the former right are proprietary rights whereby a municipality can acquire property by purchase or lease or gift. Examples of the latter power are the powers to pass zoning laws with extraterritorial effect or to condemn property extraterritorially. The word acquire can have a broad meaning. After reviewing article 11 of the Illinois Municipal Code (Ill. Rev. Stat. 1981, ch. 24, par. 11— 1 — 1 et seq.), I can only conclude that the word “acquire” as used in section 11 — 95—1 does not necessarily mean “condemn” as used in section 11 — 61—1.
Where the legislature wished to include the power to condemn within the meaning of the word “acquire,” the legislature has explicitly so stated. Furthermore, where the legislature intended a municipality to have the power to condemn property extraterritorially, this power also has been expressed in the particular section of the Municipal Code. It was observed by the appellate court in Village of Deerfield v. Rapka (1971), 132 Ill. App. 2d 74, 76, rev’d (1973), 54 Ill. 2d 217, that “[t]he Municipal Code of 1961 contains ten articles, three of which (Articles 7, 9 and 11) deal with property acquisition ***48 divisions of these articles deal with property acquisition by municipal corporations. Thirty-five of these specifically delegate to the municipality the power of eminent domain to acquire property. The other 13 divisions, including that in question here, do not make specific reference to the power to condemn.”
The legislature was clearly capable of including the power to condemn in statutes if it so wished. A few examples may prove beneficial: Section 11 — 65—3 provides that “*** city may acquire by dedication, gift, lease, contract, purchase, or condemnation all property *** within the corporate limits of the city, for municipal convention hall ***” (Ill. Rev. Stat. 1981, ch. 24, par. 11-65-3); section 11-68-4 provides that “*** board *** shall select a suitable site *** within or without the city for a stadium *** acquire title *** by accepting a donation or devise or by purchase or condemnation ***” (Ill. Rev. Stat. 1981, ch. 24, par. 11 — 68—4); section 11 — 94—1 provides that “any municipality *** has the power to *** acquire *** natatoriums or swimming pools *** by purchase, gift or condemnation ***” (Ill. Rev. Stat. 1981, ch. 24, par. 11 — 94—1); section 11 — 103—2 provides that “every municipality *** may, for airport *** purposes acquire by dedication, gift, lease, contract, purchase or condemnation *** all property *** within and outside the corporate limits ***.” (Ill. Rev. Stat. 1981, ch. 24, par. 11 — 103—2.) It is interesting to note that section 11 — 97—2 allows municipalities to establish driveways from the corporate limits of the municipalities to parks owned by the municipality outside its corporate limits. The municipality may “acquire the land *** by purchase, devise or gift, or *** by condemnation ***.” (Ill. Rev. Stat. 1981, ch. 24, par. 11 — 97—2.) If the legislature had bestowed upon municipalities a broad power to condemn property extra-territorially for park purposes, there would have been no need for this statute because surely municipalities would have been already empowered to condemn roadway property as part and parcel of the park.
By following the old rules of statutory interpretation that the legislature does not enact surplusage and that expression of one is exclusion of the other, one can only conclude that a municipality’s authority to condemn property is limited to property within its borders unless the authority is set forth in a statute as explicitly as in the statutes discussed above. Section 11 — 95—1 explicitly authorizes a municipality to “acquire” property “beyond the corporate limits.” However, the section does not explicitly include the power to condemn within the statement of authority to acquire. This strongly suggests that the legislature did not intend to authorize a municipality to condemn property extraterritorially for playground purposes.
Section 11 — 95—1 only refers to the right to acquire. property. The section does not explicitly provide for extraterritorial condemnation powers. Authority to condemn property extraterritorially is found in section 11 — 61—1, which authority, as discussed above, is limited to the condemnation of property in unincorporated areas adjacent and contiguous to the municipality where required for street or highway purposes. Therefore, the holding in this case should be that the city of Peoria cannot extraterritorially condemn the subject nonadjacent and noncontiguous property for playground and recreational purposes.