I am unable to concur in the majority opinion. It has been an unbroken rule of law in this State that interest will not run against a city in a proceeding under the Local Improvement act until after possession taken, and in no event after compensation has been paid. Since no vested right can be acquired in the property without the owner's consent until compensation is paid, there can be no vested right in the compensation until it is paid. An early case in this court which undertook to define the nature and character of the judgment in a condemnation proceeding brought under the Local Improvement act is that of City of Chicago v. Barbian, 80 Ill. 482, where it was held that a property owner's right under his judgment was to have his compensation before his property was taken or damaged, and if never taken or damaged there was no basis whereon to rest his claim for compensation. In South ParkComrs. v. Dunlevy, 91 Ill. 49, it was held: "Our conclusion on this branch of the case is, that until the possession of the property has been taken, interest cannot, be allowed; that so long as the owner holds the possession and use of the property, the compensation should not bear interest — in other words, that the possession and use of the property must be regarded as an equivalent for interest." This rule was re-affirmed in Cityof Evanston v. Knox, 241 Ill. 460, and People v. Weaver, 330 id. 643.
The case of Caldwell v. Highway Comrs. 249 Ill. 366, involved a proceeding by the commissioners of highways to *Page 256 lay out a public road. Certain parties prayed an injunction restraining the commissioners from opening the highway until payment was made. Mr. Justice Cartwright in his opinion said: "The only right of the complainants was to an injunction against the opening of the road until their damages should be paid, and as the public have not had the use of the property but it has remained in the possession and use of the complainants, the judgments will not draw interest."
There have been tort actions where damages have been awarded because of the negligence of the city to take possession under its judgment or to take steps indicating a refusal to be bound by the judgment. Illustrative of this principle is the case ofMecartney v. City of Chicago, 273 Ill. 276. This case was an action in tort to recover damages on account of an unreasonable delay by the city to either accept benefits of the judgment and pay compensation, or to disaffirm. The compensation in that case recovered was in the nature of damages, and the amount was ascertained on the basis of the interest that would have accumulated in the event the judgment had been paid within a reasonable time. In no case in this State, however, was interest allowed until the holding in Turk v. City of Chicago,352 Ill. 171, and in that case it was based upon section 3 of the Interest act, and therefore was a departure from the well recognized rule applicable to condemnation judgments in this State.
In my opinion the Interest act is not applicable to a judgment in a condemnation proceeding brought under the Local Improvement act. In the first place, at the common law there was no right of interest unless especially provided for by contract. Interest is a creature of the statute, alone. (City of Pekin v. Reynolds, 31 Ill. 529.) In the second place, interest does not run against a municipality except by express agreement. (South Park Comrs. v. Dunlevy, supra.) In the third place, the judgment in a *Page 257 proceeding of this character is not a quod recuperet judgment, inasmuch as no execution can issue in satisfaction thereof — at least until after the expiration of a designated period of time. The retention of the property, together with its income and use, offsets the interest that would accumulate on the judgment. In other words, the city would be paying interest although it did not have title to the property and someone else would be collecting the income and would be entitled to the use and benefits of the property.
The Local Improvement act provides a code of condemnation of private property in the making of public improvements. It regulates the entire proceeding without resort to any other act, and there is no provision in it expressly providing for interest on the final judgment. (Rieker v. City of Danville,204 Ill. 191; City of Chicago v. Sullivan Machinery Co. 269 id. 58.) That the legislature had the question of interest in mind is evidenced by the fact that the statute makes provision for the payment of costs and interest under certain circumstances and conditions, namely, where an appeal is prayed and allowed by the city, but makes no provision for interest as to the judgment itself where no appeal is prayed. The Local Improvement act under which this proceeding was initiated was passed in 1897. This was after section 3 of the Interest act was enacted. It would appear, therefore, that the legislature did not have in mind the Local Improvement act at the time it enacted section 3 of the Interest act. It is also significant that no suits were instituted, so far as the records of this court disclose, seeking to recover interest on judgments obtained under the Local Improvement act, until the case ofTurk v. City of Chicago, supra, decided in 1933. Under the Local Improvement act a special assessment contemplates a certain fixed amount necessary to pay judgments and costs. It was never contemplated that interest should be allowed on the judgments, otherwise the exact amount requisite to complete and pay for the improvement *Page 258 could never be, with reasonable accuracy, ascertained. The argument against the allowance of interest on this judgment could be carried on at length but would answer no useful purpose. Despite the argument of the majority of the court I am of the opinion that it has been the invariable rule that judgments in condemnation cases do not draw interest until the property has been taken or damaged.
Mr. JUSTICE HERRICK concurs in this dissent.