Schroeder v IL Petition for Writ of Certiorari

    IN  THE

^uprrmr Court nf thr Hlnttri l t̂atra
Octobeb Tebm, 1965

No. / ?  ¥ ?

V

GERALD A. SCHROEDER and CLARA JOHNSON 
SCHROEDER,

Petitioners,
vs.

STATE OF ILLINOIS, BERNARD J. KORZEN, COUNTY 
TREASURER OF COOK COUNTY, TRUSTEES OF SCHOOLS 
OF TOWNSHIP 42 NORTH, RANGE 11 EAST OF THE 
THIRD PRINCIPAL MERIDIAN, COOK COUNTY, ILLI­
NOIS, FOR THE USE AND BENEFIT OF BOARD OF 
EDUCATION, SCHOOL DISTRICT 57, COOK COUNTY, 
ILLINOIS, WILBERT J. J. WAHLER and DANIEL W 
PECYNA,

Respondents.

Petition For Writ Of Certiorari To The 
United States Court Of Appeals 

For The Seventh Circuit

W illiam R. Ming, J r.,
H elen I. Cohen,

123 West Madison Street, 
Chicago, Illinois 60602, 
FRanklin 2-1106,

J ohn J .  H oellen,
1940 W. Irving Park Road, 
Chicago, Illinois 60613,

Attorneys for Petitioners.
= = ^i ——=-------= =========^^
M I D W W  L A W  P R I N T I N G  C O . ,  3 2 6  N .  M I C H I G A N ,  C H I C A G O  6 0 6 0 1 ,  F I N A N C I A L  6 - 3 9 B S



INDEX

PAGE

Opinion Below ..............................................................

Grounds on Which the Jurisdiction of this Court 
Is Invoked .................................................................

Question Presented for Review...................................

Constitutional and Statutory Provisions Involved ....

Statement of Facts ......................................................

Reasons Relied On for Allowance of a Writ of Cer­
tiorari ........................................................................

Argument ........ ............................................................

Conclusion ............... .......... .............. ............................

2

2

3

3

4

11

12

19

Appendices:
A—Opinion of the United States Court of Appeals

for the Seventh Circuit..............  la-6a
B—Constitutional Provisions Involved .................  7a
C—Statutes Involved ..........................................  8a-lla
D—Traverse ......................................................  12a-18a



11

L ist Or Authorities Cited.

Cases:
Barrows v. Jackson, 346 U.S. 249 (1953) .............. 16
City of Cincinnati v. Vester, 281 U.S. 439 (1930) .... 14 
County of Allegheny v. Frank Mashuda Company,

360 U.S. 185 (1959) ..................... ......... ......... .....  15
Hansberry v. Lee, 311 U.S. 32 (1940) ................. . 16
Kelly, et al. v. Bowman, et al., 104 F. Supp. 973 

(E.D. 111. 1952); aff’d 202 F. 2d 275 (C.A. 7th
1953) ......................................................... .............  12

McGuire v. Sadler, 337 F. 2d 902 (C.A. 5th 1964) .... 17
Monroe v. Pape, 365 U.S. 167 (1961) ..................... 18
People ex rel White v. Busenhart, 29 111. 2d 156

(1963) ................. ......... .. ...................................  8, 13
Shelly v. Kramer, 334 U.S. 1 (1948) ............... ..... 16
Townsend v. Sain, 372 U.S. 293 (1963) ................ 19
Trustees of Schools, etc. v. Schroeder, 23 111. 2d

74 (1961) and 25 111. 2d 289 (1962) ......  5, 6, 7, 10, 13
United States v. Price,.....U.S........ , 86 S. Ct. 1152

(1966)...................... .......... ........ ........ .......... ........  18
Statutes :

28 U.S.C. Sec. 1331(a)  ..............................  16, 18, 8a
28 U.S.C. Sec. 1343(3) ...................................  16, 18, 8a
42 U.S.C. Secs. 1981, 1982, 1983, 1985 .................  8a-lla

Constitution of the United States:
Fifth Amendment ........................ ............................  7a
Fourteenth Amendment ...........................................  17



IN  T H E

Supreme (tart at %  Inttrd Stairs
Octobeb Teem, 1965

No.

GERALD A. SCHROEDER and CLARA JOHNSON 
SCHROEDER,

Petitioners,
vs.

STATE OF ILLINOIS, BERNARD J. KORZEN, COUNTY 
TREASURER OF COOK COUNTY, TRUSTEES OF SCHOOLS 
OF TOWNSHIP 42 NORTH, RANGE 11 EAST OF THE 
THIRD PRINCIPAL MERIDIAN, COOK COUNTY, ILLI­
NOIS, FOR THE USE AND BENEFIT OF BOARD OF 
EDUCATION, SCHOOL DISTRICT 57, COOK COUNTY, 
ILLINOIS, WILBERT J. J. WAHLER and DANIEL W. 
PECYNA,

Respondents.

Petition For Writ Of Certiorari To The 
United States Court Of Appeals 

For The Seventh Circuit

To: The Honorable Chief Justice and Associate Justices 
of the Supreme Court of the United States

Your petitioners, Gerald A. Schroeder and Clara John­
son Schroeder, respectfully pray that a writ of certiorari 
be issued from this Court to review the judgment of the 
United States Court of Appeals for the Seventh Circuit 
entered in the above-entitled cause.



—2—

OPINION BELOW.

No formal opinion was rendered by the District Court 
for the Northern District of Illinois.

The opinion of the United States Court of Appeals for 
the Seventh Circuit is reported at 354 F. 2d 561 (1965), 
and is attached hereto as Appendix A, pp. la-6a.

GROUNDS ON WHICH THE JURISDICTION 
OF THIS COURT IS INVOKED.

1. The date of the judgment sought to be reviewed is 
November 2, 1965.

2. A timely petition for rehearing was filed. The court 
denied the petition for rehearing on February 7, 1966.

3. The jurisdiction of this Court is invoked under 
28 U.S.C. § 1254(1).



—3—

QUESTION PRESENTED FOR REVIEW.

Did a complaint for declaratory judgment and an in­
junction which invoked the jurisdiction of the district 
court under 28 U.S.C. §§ 1331 and 1343(3), state a cause 
of action when the complaint alleged that in violation 
of 42 U.S.C. §§ 1981, 1982 and 1983, defendant public 
school district purports to have taken fee simple title to 
an entire tract of land owned by petitioners by means of 
a state court judgment in an eminent domain proceeding 
where the state court had no jurisdiction in such a pro­
ceeding to do more than award an easement for use for 
school purposes on so much of the land as was needed 
for those purposes; that petitioners were denied due 
process in the state court proceeding; and the complaint 
further alleged that all of the defendants have conspired 
in violation of 42 U.S.C. $ 1985 to deprive petitioners of 
title to their land by means of a void state court judg­
ment and have conspired to deny petitioners equal pro­
tection of the laws.

CONSTITUTIONAL AND STATUTORY 
PROVISIONS INVOLVED.

Involved here are the Fourteenth Amendment to 
the Constitution of the United States (Appendix B, 
p. 7a); 28 U.S.C. §§ 1331(a) and 1343(3); and 42 U.S.C. 
§§ 1981, 1982, 1983 and 1985 (Appendix C, pp. 8a-lla).



STATEMENT OF FACTS.

On or about January 17, 1964, Gerald A. Schroeder and 
his wife, Clara Johnson Schroeder, filed a complaint in 
the United States District Court for the Northern Dis­
trict of Illinois against the State of Illinois; Bernard 
J. Korzen, County Treasurer of Cook County, Illinois; 
the Trustees of Schools of Township 42 North, Bange 11, 
East of the Third Principal Meridian, Cook County, 
Illinois, for the use and benefit of the Board of Education 
of School District 57 of Cook County, Illinois; Wilbert 
J. J. Wahler and Daniel W. Pecyna. The last twm named 
defendants are members of the bar of the State of Illinois, 
who represented the petitioners in certain proceedings in 
the courts of Illinois.

In that complaint petitioners invoked the jurisdiction 
of the district court under 28 U.S.C., §§ 1331(a) and 
1343(3), and charged the defendant state officers with vio­
lating the provisions of 42 U.S.C., §§ 1981, 1982 and 1983 
by taking land belonging to petitioners through a void state 
court judgment in an eminent domain proceeding. The 
complaint further charged all of the defendants with con­
spiring to deprive petitioners of title to their land by 
means of that void state court judgment and further 
conspiring to deny petitioners equal protection of the 
laws all in violation of 42 U.S.C., § 1985. Each of the 
defendants moved to dismiss the complaint. The district 
court dismissed the complaint without a formal opinion 
but stated its grounds (Appendix, pp. 149-155), and the 
Court of Appeals affirmed.



—5—

In substance, the allegations of the petitioners, which 
stand admitted by the several motions to dismiss, are 
that petitioners owned, lived on and farmed, and had 
done so for some years, approximately 18 acres of land 
with frontage of about 1800 feet on a widely traveled 
highway in Mt. Prospect, Illinois, a suburb of Chicago. 
That land AÂas described by the Supreme Court of Illi­
nois in Trustees of Schools, etc. v. Schroeder, 23 111. 2d 
74, 76, 177 N.E. 2d 178, 179 (1961) as follows:

“The property, Avhich is presently used as a truck 
farm, is in many ways unique, making comparison 
sales a difficult and inconclusive criterion. It is lo­
cated in the heart of a thriving area of shopping- 
center development. A short distance to the south­
east on Rand Road a 40-acre shopping center for 
chain store tenants is under construction and one- 
half mile to the northAvest on Rand Road a 60-acre 
shopping center is under construction. The subject 
property itself is adjacent to the village of Mount 
Prospect, being six blocks from the business district 
of the village. It is within easy access of schools, 
parks, churches, toll roads, expressways and public 
transportation. Water and sewers are available at 
the property and the surrounding area is building 
up rapidly. Rand Road, upon which the tract has 
extensive frontage, is United States Route 12 and is 
a heavily traveled thoroughfare.”

In 1959 the respondent school district filed a petition in 
the Circuit Court of Cook County seeking fee simple title 
to the whole 18 acre tract allegedly for school purposes. 
The petitioners, then represented by respondents Wahler 
and Pecyna, filed an elaborate traverse, later expanded 
by amendment with leave of court, inter alia, denying 
that the school district sought to take the property for 
public purposes and denying that the school district had



—6—

the power to take fee simple title to the land for public
purposes.

After hearing evidence on the issues made by it the 
Circuit Court of Cook County denied the traverse. The 
question of the value of the property was then presented 
to a jury which returned a verdict that the value of the 
property was $267,083.33. On a post-trial motion by the 
school district the court ruled that unless there was a 
remittitur by petitioners to reduce the award to $225,000, 
a new trial would be granted. When petitioners refused 
to agree to the remittitur the court ordered a new trial.

On appeal from that order the Supreme Court of Illi­
nois reversed it in Trustees of Schools, etc. v. Schroeder, 
23 111. 2d 74, 177 N.E. 2d 178 (1961), holding that the 
trial court had no power to require a remittitur in an 
eminent domain proceeding. The Supreme Court, how­
ever, though the petitioners raised the issues on the 
appeal, refused to pass on the merits of the traverse be­
cause the appeal was from an order granting a new trial.

On remand of the proceedings to the Circuit Court of 
Cook County, that court entered a judgment awarding 
fee simple title in the whole tract to the respondent school 
district on condition that it pay petitioners the amount 
of the jury’s verdict plus interest. A few days later the 
trial court found that the requisite amount had been 
deposited with the respondent county treasurer to be paid 
to petitioners and entered an order vesting the fee simple 
title to the whole tract in the school district.

Petitioners appealed from that order but, without their 
knowledge, their counsel, respondents Wahler and Pecyna, 
on that appeal, despite the other issues raised in the



■7-

traverse, contended only that a school district of this class 
conld not take land by eminent domain within 40 rods of 
the owners’ dwelling. That issue was decided against peti­
tioners in Trustees of Schools of Township 42, etc. v. 
Schroeder, 25 111. 2d 289, 184 N.E. 2d 872 (1962).

When petitioners learned that the various issues raised 
by the traverse as to the authority of the school district 
to take all of the tract and to take title in fee simple to 
the tract had not been raised on the appeal they retained 
other counsel, Alfred M. Loeser and Stephen Lee of the 
Illinois bar, who immediately filed a petition for rehearing 
with the Illinois Supreme Court reasserting the issues 
raised on the traverse and asserting that the taking of 
petitioners’ property by virtue of the judgment of the 
Circuit Court of Cook County in eminent domain under 
these circumstances deprived petitioners of their land in 
violation of rights protected by the Constitution of the 
United States. That petition for rehearing was denied 
on September 27, 1962, without opinion.

Mr. Loeser and Mr. Lee continued to represent peti­
tioners in these matters until each died while the instant 
case was pending in the Court of Appeals for the Seventh 
Circuit.

Immediately upon the denial of their petition for re­
hearing petitioners sought in the Circuit Court of Cook 
County to vacate the condemnation judgment and to stay 
the proceedings in condemnation. In that petition it was 
reasserted that the school district Avas not taking the land 
for public purposes and that the court did not have power 
to award more than an easement for school purposes to 
so much of the land as might be necessary for those pur­
poses. Petitioners sought to present evidence in support



—8—

of that petition but the court refused to hear any such 
evidence.

As soon as the deposit had been made with the County 
Treasurer the school district sought by various means to 
obtain possession of petitioners’ land. As early as De­
cember 13, 1961, while the second appeal was pending in 
the Illinois Supreme Court, the school district forcibly 
took possession of the land, ousted petitioners and de­
stroyed their produce business at the height of the season 
of Christmas sales. After the opinion on that appeal was 
issued but while the petition for rehearing was pending 
in the Supreme Court of Illinois, the school district sought 
in the Circuit Court of Cook County a supplemental writ 
of possession to the land. After the petition for rehearing 
was denied, that writ issued and the Circuit Court denied 
the petition to vacate its judgment on October 4, 1962. 
Petitioners appealed from that order.

Meanwhile, petitioners and 12 other taxpayers, resi­
dents of the school district, sought leave to file a tax­
payers’ complaint for an injunction restraining the school 
district from taking petitioners’ land charging, on a 
number of grounds, that the school district was proceed­
ing in violation of the law. The Circuit Court of Cook 
County denied leave to file the taxpayers’ suit. An appeal 
was taken from that order. That appeal and the appeal 
of the petitioners from the order of October 4, 1962, were 
consolidated. In People ex rel. White, et al. v. Busenhart, 
et al., 29 111. 2d 156, 193 N.E. 2d 850 (1963), the Circuit 
Court of Cook County was affirmed in both cases. With 
respect to the appeal of petitioners, the Illinois Supreme 
Court said, 29 111. 2d 156, 159, 193 N.E. 2d 850, 853 (1963):



- 9 -

*  # # # #

“In the eminent domain feature of this appeal the 
Sehroeders seek to raise the following issues: (1) 
That the court had no ‘jurisdiction’ to enter judgment 
for the taking of a fee-simple title; (2) that the 
property is exempt from condemnation because of its 
location within 40 rods of the owners’ dwelling; (3) 
that the ordinance (resolution) authorizing condem­
nation was void for lack of a quorum at the time of 
its passage; (4) that there was abandonment of the 
project by failure to pay the award within 150 days 
of October 27, 1960, as directed; and (5) that the 
appeal bond was void.

“ [1-7] All of these points could have been raised 
in the second appeal, in fact (2) above was conclu­
sively adjudicated against the Sehroeders, and they 
are now barred. The rule has long been recognized 
that no point which was raised, or could have been 
raised in a prior appeal on the merits, can be urged 
on a subsequent appeal, and those not raised are 
considered as waived. (Semple v. Anderson, 4 Gilm. 
546; Union Mutual Life Ins. Co. v. Kirchoff, 149 111. 
536, 36 N.E. 1031; Jackson v. Glos, 249 111. 388, 94 
N.E. 502.) ‘Where an order or decree is reversed and 
the cause is remanded by this court, with specific 
directions as to the action to be taken by the trial 
court, the only question properly presented on appeal 
is whether the order or decree is in accordance with 
the mandate and directions of this court.’ (People v. 
National Builders Bank of Chicago, 12 111. 2d 473, 
476-477, 147 N.E. 2d 42, 44.) Despite the rule, the 
prayer of the petition for the taking of a fee-simple 
title, and the failure to even include the question in 
the traverse, the Sehroeders contend that it goes to 
the jurisdiction of the court and can be raised either 
directly or collaterally. In Chicago Housing Authority 
v. Berkson, 415 111. 159, 112 N.E. 2d 620, the right of 
the condemnor to acquire property by eminent domain 
was questioned and alleged to be jurisdictional. It



—10—

was there said, 415 111. at pages 161 and 162, 112 N.E. 
2d at page 621: * * (T)he objection was waived
by failure to raise it at the appropriate time. The 
objection goes only to the right of the condemnor to 
acquire property by eminent domain. It does not 
affect the general jurisdiction of the court over the 
subject matter of an eminent domain action.’ There, 
the condemnor’s right to acquire by eminent domain 
was attacked, while here only the extent of the estate 
to be taken is alleged to be grounds for going behind 
the judgment. We are of the opinion that the fee- 
simple-title question is barred.” (Emphasis supplied.) 

* * * * *

In light of the emphasized portion of the opinion of 
the Supreme Court of Illinois a copy of the traverse and 
the amendment thereto taken from the Abstract of Record 
in the second appeal, Trustees of Schools of Township 42 
v. Schroeder, supra, is appended hereto as Appendix D, 
and this Court is respectfully urged to take judicial notice 
of that traverse.

No petition for certiorari to this Court was filed seeking 
review of either of the two decisions by the Supreme 
Court of Illinois adverse to petitioners. Instead the com­
plaint in the instant case was filed about two months 
after the denial of a petition for rehearing by the Illinois 
Supreme Court in that last appeal.

In the fall of 1962 the school district built a small inter­
mediate grade school on one-quarter acre of the 18 acre 
tract taken from petitioners. The school building is lo­
cated the maximum distance from the Rand Road front­
age which is not being used for a school or school 
purposes.



- 1 1 -

In their complaint in this cause petitioners sought a 
declaratory judgment that the taking of a fee simple title 
to their land denied due process of law to petitioners and 
that the judgments of the Circuit Court of Cook County 
awarding the land to the school district were void and 
that the mandate of the Supreme Court of Illinois in the 
last appeal was void. In addition, the petitioners prayed 
an injunction restraining the respondents and their agents, 
etc., from claiming ownership of the land or interfering 
with the petitioners as the rightful owners and restraining 
defendants from interfering with the fund in the custody 
of the county treasurer.

REASONS RELIED ON FOR ALLOWANCE 
OF A WRIT OF CERTIORARI.

In this cause the Court of Appeals has decided a fed­
eral question in a way which is in conflict with applicable 
decisions of this Court and has so far sanctioned such a 
departure by the district court from the usual and ac­
cepted course of judicial proceedings as to call for an 
exercise of this Court’s power of supervision.



- 1 2 -

ARGUMENT.

It is fundamental to our system of private ownership 
of property that government, neither federal, state nor 
local, may take private property save for public use and 
then, only upon payment of just compensation. It is equally 
fundamental to our system of ordered liberty that the 
courts, both state and federal, provide protection for 
those rights of private property. In this case, despite 
their continuous efforts, petitioners have been denied that 
protection by both state and federal courts. Indeed, in 
this case the courts, both state and federal, have refused 
to hear petitioners assertions as to their property rights.

Basically petitioners contend, and have sought to do so 
throughout tortuous litigation, that the school district has 
taken their property but not for public use and that, in 
any event, the school district has taken more of their 
property, both in quantity and in extent of title, than 
was justified for any public use. Petitioners owned 18 
acres of highly valuable, well-located, land in a rapidly 
developing suburban area. Without contradiction, the 
record here shows that nearly five years after the school 
district took fee simple title to all 18 acres, the school 
district has used only one-quarter of one acre of the tract 
at the back end leaving untouched and unused the remain­
ing 17 acres including the obviously more valuable Rand 
Road frontage (App., pp. 78-80). The law of Illinois is 
clear that this school district had no power to take fee 
simple title by eminent domain. See Kelly, et al. v. 
Bowman, et al., 104 F. Supp. 973 (E.D. 111. 1952); aff’d 
202 F. 2d 275, 276 (C.A. 7th 1953). In that case, the Court 
of Appeals flatly stated:



“Judge Casper Platt, by whom the case was tried, 
filed an opinion, Kelly v. Bowman, D.C., 104 F. Supp. 
973, which contains an adequate statement of the 
facts, as well as a thorough analysis of the appli­
cable Illinois law. Inasmuch as we agree with the 
result which he reached, as well as the reasoning 
upon which it is predicated, we think no good pur­
pose could be served in writing an opinion. We there­
fore adopt the opinion of Judge Platt as that of this 
court.” # # # # #

Significantly, in none of its opinions involving this 
land has the Illinois Supreme Court questioned the propo­
sition that the school district had no power to take a 
fee simple title. Instead the Illinois Supreme Court has 
steadfastly refused even to consider the question. The 
only justification which that Court has offered for its 
refusal to consider this deprivation of petitioners’ rights 
is found in People ex rel White v. Busenhart, supra. That 
justification, strangely enough, is that the issue was not 
raised in the traverse. Obviously the Illinois Supreme 
Court was mistaken with respect to that fact (see Ap­
pendix D, this petition). Equally, the Illinois Supreme 
Court was mistaken in its assertion that the issue was 
not raised on the so-called second appeal. It was raised 
by the petition for rehearing and apparently ignoredJ1)

(x) It is the practice of the Illinois Supreme Court 
to issue printed copies of its opinion to the parties upon 
the filing of the opinion with the Clerk of that Court. 
If a petition for rehearing is filed the Court may with­
draw the opinion, modify the opinion, or leave it un­
changed if the rehearing is denied. In Trustees of Schools 
of Township 42, etc. v. Schroeder, supra, the second ap­
peal, the original opinion issued May 25, 1962, remained



•14—

Thus, in the instant case, petitioners sought to present 
to the district court a plea for federal remedy in a case 
where it was alleged and uncontradicted, that state offi­
cials had taken more of petitioners’ land than the state 
officials had any authority so to do and that they had 
taken more of the title than they had any authority so 
to do.

It seems never to have been doubted in this Court that 
the Fourteenth Amendment prohibits state officers from 
expropriating privately-owned land just as the Fifth 
Amendment prohibits federal officers from taking land 
from private owners. In City of Cincinnati v. Vester, 281 
U.S. 439, 446-447 (1930), then Chief Justice Hughes, in 
an “excessive condemnation” case pointed out:

■u. O  -V- -*1*7T W W W W

“It is well established that, in considering the ap­
plication of the Fourteenth Amendment to cases of 
expropriation of private property, the question what 
is a public use is a judicial one. In deciding such a 
question, the Court has appropriate regard to the 
diversity of local conditions and considers with great 
respect legislative declarations and in particular the 
judgments of state courts as to the uses considered 
to be public in the light of local exigencies. But the 
question remains a judicial one which this Court 
must decide in performing its duty of enforcing the 
provisions of the Federal ConstitutionJ1) In the pres­
ent instance, we have no legislative declaration, apart

unchanged and the petition for rehearing was denied 
on September 27, 1962. It thus appears that while the 
Illinois Supreme Court had before it the issue of the 
power of the school district to take title by eminent do­
main to the whole of the 18 acres, that Court never in­
dicated its ruling as to the issue or any basis for such 
a ruling.



—15—

from the statement of the city council, and no judg­
ment of the state court as to the particular matter 
before us. Under the provision of the Constitution of 
Ohio for excess condemnation when a city acquires 
property for public use, it would seem to be clear 
that a mere statement by the council that the excess 
condemnation is in furtherance of such use would 
not be conclusive. Otherwise, the taking of any land 
in excess condemnation, although in reality wholly 
unrelated to the immediate improvement, would be 
sustained on a bare recital. This would be to treat the 
constitutional provision as giving such a sweeping 
authority to municipalities as to make nugatory the 
express condition upon which the authority is 
granted.” (Footnote omitted.)

# * # * *
The cases cited in the omitted footnote are all to the 

same effect.
More recently in County of Allegheny v. Frank Ma- 

shuda Company, 360 U.S. 185 (1959), this Court affirmed 
a decision of the Court of Appeals for the Third Circuit 
that a district court was in error in dismissing a com­
plaint by a land owner who contended that his land had 
been taken by a county board for private not public use. 
In that case, just as in this one, the district court had 
refused to exercise the jurisdiction vested in it by the 
Judiciary Act because the district court believed that 
there was a threat to state-federal relationships in the 
exercise of such jurisdiction. This Court, however, found 
no justification for “abstention” from the exercise of 
federal jurisdiction in the suit of the land owner who 
complained that his property was taken for private use.

Ironically, in the Mashuda case, supra, it was agreed 
that the land owner had a remedy in the Pennsylvania 
state courts to raise the issue which he sought to raise



—16-

in the federal court. In the instant case petitioners have 
no such remedy in the state court. In fact, despite their 
unremitting efforts to secure a state court remedy, the 
Illinois courts have emphatically refused to provide a 
remedy.

This Court has repeatedly made it clear that state judi­
cial action may itself violate the Fourteenth Amendment 
to the Constitution of the United States. Appropriately, 
the leading decisions in that respect involve the rights 
of land owners. See Shelly v. Kramer, 334 U.S. 1 (1948); 
Barrows v. Jackson, 346 U.S. 249 (1953), and Hansberry 
v. Lee, 311 U.S. 32 (1940). The Hansberry case, supra, 
makes it clear that where the state court, as here, has 
refused to consider the merits of constitutional claims, 
property owners are denied procedural due process as 
well as substantive due process.

In the instant case petitioners invoked the jurisdiction 
of the district court on dual grounds. The complaint relied 
upon 28 U.S.C., §§ 1331(a) and 1343(3). By amendment, 
with leave of court (App., p. 35), the complaint alleged that 
the amount involved exceeds $10,000 and that federal and 
constitutional questions were involved. Accordingly, the 
complaint plainly stated a cause of action under 28 U.S.C., 
§ 1331(a). The Court of Appeals, however, was apparently 
of the opinion that no federal question could be presented 
because “the state court admittedly had jurisdiction over 
the parties and the subject matter. * * That holding, 
we respectfully submit is entirely inconsistent with the 
views expressed by this Court in Shelly v. Kramer, supra, 
Barrows v. Jackson, supra, and Hansberry v. Lee, supra. 
In all of those cases the state court also had jurisdiction 
of the parties and of the subject matter. Nevertheless this 
Court ruled that the state judicial action itself violated



■17

the Fourteenth Amendment to the Constitution of the 
United States. We respectfully suggest that this is pre­
cisely the situation here.

The view of the Court of Appeals in the instant case 
is plainly inconsistent with respect to the scope of federal 
jurisdiction voiced in McGuire v. Sadler, 337 F. 2d 902, 
906 (C.A. 5th 1964). In that case the court observed:

-SI.~7' 'A' W

“Quite apart from the question of impairment of 
contract, the plaintiff’s Fourteenth Amendment claim 
stands on its own feet. There is no question that 
there was state action for the purpose of invoking 
the Fourteenth Amendment. Monroe v. Pape, 1961, 
365 U.S. 167, 81 S.Ct. 473, 5 L.Ed. 2d 492; Hornsby 
v. Allen, 5 Cir. 1964, 326 F. 2d 605. And there is de­
privation of property—if we accept plaintiff’s allega­
tions. The fraud of the Commissioner, if a fact, would 
be enough to require the nullification of his findings 
and subsequent action. In addition, the plaintiff al­
leges various procedural shortcomings in the state 
proceedings. He alleges that he was denied the time 
and access to information needed in order to defend 
his interest; that the Commissioner and the co-con­
spirators used various unfair stratagems during the 
hearing in order to prevent his being heard; that the 
Commissioner was present at the hearing for only 
a few minutes, which resulted in a clerk’s (the Chief 
Clerk’s) conducting the hearing. If such procedural 
shortcomings are found to have existed and if indeed 
they deprived the plaintiff of a fair and adequate 
hearing, these findings wTould seem sufficient for a 
showing of a Fourteenth Amendment violation.

“ [9] The plaintiff also invokes the equal protec­
tion clause of the Fourteenth Amendment. He em­
ploys the words ‘fraudulent’ and ‘wilful’ not just op- 
probriously but to show allegedly purposeful discrim­
ination. The allegations of fraudulent and diserim-



— 18—

inatory official action are made with specificity so as 
to bring the plaintiff within even the conservative 
definition of equal protection announced in Snowden 
v. Hughes, 1944, 321 U.S. 1, 64 S.Ct. 397, 88 L.Ed. 
497. See also Hornsby v. Allen, 5 Cir. 1964, 326 F. 2d 
605.”

# # * # #
Both that decision and Monroe v. Pape, 365 U.S. 167 

(1961), make it clear that in addition to invoking the 
jurisdiction of the district court in this cause under 
§ 1331, petitioners also properly invoked the jurisdiction 
of the district court under 28 U.S.C., § 1343(3). Peti­
tioners alleged both acts of state officials, the school dis­
trict, state courts and the county treasurer in violation 
of the Fourteenth Amendment. They also charged a con­
spiracy between those state officers and private persons, 
petitioners’ former counsel, to deprive them of equal pro­
tection of the laws as well as other rights guaranteed by 
the Constitution of the United States. At this term this
Court in United States v. Price, ..... U.S....... , 86 S. Ct.
1152 (1966), made it clear that joint participation of 
private persons and state officials in prohibited conduct 
is action “under color” of law within the meaning of the 
Civil Rights Act.

Thus, the dismissal of the complaint in this cause denied 
to petitioners access to the federal courts provided for 
under two sections of the Judicial Act.

The real ground for denying a federal remedy to peti­
tioners appears to have been the state court decisions. 
It is clear from the record in this case, however, that the 
state courts have never considered the federal issues in­
volved here. It is equally clear that the decisions of this 
Court do not warrant denial of federal protection for 
federal constitutional rights because a state court has



— 19—

refused to consider the questions. Ironically, the leading 
cases on this point are cases in which this Court has re­
quired lower federal courts to consider claims of federal 
constitutional rights in criminal cases. See e.g., Town­
send v. Sain, 372 U.S. 293 (1963). We respectfully submit 
that the rights of land owners are entitled to the same 
protection from unlawful acts by state officials as is the 
liberty of persons charged with crime.

CONCLUSION.

For all of the foregoing reasons we respectfully urge 
this Court to issue its writ of certiorari to review the 
decision of the Court of Appeals for the Seventh Circuit 
in this matter. In this period of wide-spread use of the 
power of eminent domain by federal, state and local offi­
cials, it is imperative for the protection of all persons in 
the United States that it be made clear that the law of 
the United States does not permit unconscionable abuse 
of the power of eminent domain by government officers.

Respectfully submitted,

W illiam R. Ming, J r.,
H elen I. Cohen,

123 West Madison Street, 
Chicago, Illinois 60602, 
FRanklin 2-1106,

J ohn J . H oellen,
1940 W. Irving Park Road, 
Chicago, Illinois 60613,

Attorneys for Petitioners.



APPENDIX A

In the
UNITED STATES COURT OF APPEALS 

for the Seventh Circuit

September T eem, 1965—September Session, 1965

No. 14920
Gerald A. Schroeder and 

Clara J ohnson Schroeder,
Plaintiffs-Appellants,

v.
State op I llinois, Bernard J. 

K orzen, County Treasurer of 
Cook County, T rustees of 
Schools of Township 42 North, 
Range 11, East of the Third 
Principal Meridian, Cook 
County, Illinois, for the use and 
benefit of Board of E ducation, 
School District 57, Cook County, 
Illinois, W ilbert J. J. W ahler 
and Daniel W. P ecyna,

Defendants-Appellees. _

>

A p p e a l  from the 
United States Dis­
trict Court for the 
Northern District 
of Illinois, Eastern 
Division.

November 2, 1965



-2 a -

Before H astings, Chief Judge, K noch and K iley, 
Circuit Judges.

K iley, Circuit Judge. This suit invoked the district 
court’s jurisdiction under 28 U.S.C. $ 1331 and § 1343(3) l1 * 3) 
for declaratory judgment and injunctive relief based on 
alleged violation of the Reconstruction era Civil Rights 
Act, presently sections 1981 to 1985 of Title 42, United 
States Code. The district court dismissed for want of 
jurisdiction. We affirm.

Plaintiffs, Gerald and Clara Sehroeder, were owners of 
17.78 acres of land in Mount Prospect, Illinois, in Novem­
ber, 1959, when defendant-Trustees filed suit in the Cir­
cuit Court of Cook County to condemn the property for 
school purposes. A jury’s verdict awarded the Sehroeders 
$267,083.33, and judgment was entered on the verdict. The 
Circuit Court ordered a new trial, but this order was 
reversed on appeal. Trustees of Schools v. Sehroeder, 23 
111. 2d 74, 177 N.E. 2d 178 (1961). On remand the Circuit 
Court entered judgment in the amount of the jury’s ver­
dict, plus interest and costs, for a total of $280,956.10, and

(U. 8. Court of Appeals Opinion)

(1) 28 U.S.C. § 1331 provides for federal question juris­
diction.

28 U.S.C. § 1343(3):
The district courts shall have original jurisdiction 

of any civil action authorized by law to be commenced 
by any person: # # #

(3) To redress the deprivation, under color of any 
state law, statute, ordinance, regulation, custom or 
usage, of any right, privilege or immunity secured by 
the Constitution of the United States or by any Act 
of Congress providing for equal rights of citizens or 
of all persons within the jurisdiction of the United 
States; * * *



— 3a-

ordered that upon payment or deposit of that sum with 
the Cook County Treasurer, fee simple title would vest in 
the Trustees. The sum being deposited, the court declared 
fee simple title to be in the Trustees and authorized them 
to take possession. An appeal from this judgment resulted 
in affirmance, Trustees of Schools v. Schroeder, 25 111. 2d 
289, 184 N.E. 2d 872 (1962), and rehearing was denied.

Schroeders then filed in the Circuit Court motions to 
vacate the judgment vesting title in the Trustees, and 
Schroeders and others moved for leave to file a taxpayers’ 
suit to enjoin execution on the condemnation judgment. 
The motions were denied and the Illinois Supreme Court 
affirmed these rulings. People ex rel White v. Busenhart, 
29 111. 2d 156, 193 N.E. 2d 850 (1963). Rehearing was 
denied and no petition for certiorari to the United States 
Supreme Court was filed. The suit before us followed.

We see no necessity of discussing sections 1981 and 
1982 of Title 42, which are plainly designed to implement 
the fourteenth amendment by providing equal rights for 
negroes. Agnew v. City of Compton, 239 F. 2d 226, 230 (9th 
Cir. 1956). This case rests upon allegations of individual 
violations of section 1983 <2) and conspiratorial violations 
of section 1985(2).

(U. 8. Court of Appeals Opinion)

(2> 42 U.S.C. § 1983:
Every person who, under color of any statute, or­

dinance, regulation, custom, or usage, of any State 
or Territory, subjects, or causes to he subjected, any 
citizen of the United States or other person within 
the jurisdiction thereof to the deprivation of any 
rights, privileges, or immunities secured by the Con­
stitution and laws, shall be liable to the party in­
jured in an action at law, suit in equity, or other 
proper proceeding for redress.



---- 4 U ’

The complaint alleges that the defendant-Trustees and 
their attorneys conspired, at the hearing upon the motion 
to vacate the condemnation judgment, to deprive Schroe- 
ders of their “rights and privileges” and due process in 
violation of section 1985(2). The only facts alleged to 
support the general allegations are that plaintiffs, by vir­
tue of the conspiracy, were deprived of their “right to 
present evidence consisting of oral testimony, exhibits and 
written documents ’ ’ in support of their petition in the Cir­
cuit Court to vacate the judgment entered against them. 
It appears from the record that the Circuit Court denied 
them this “right” after the Illinois Supreme Court in the 
second appeal, opinion at 25 111. 2d 289, 184 N.E. 2d 872, 
had affirmed the very judgment the petitioners sought to 
have the Circuit Court vacate. There is no allegation of

(U. 8. Court of Appeals Opinion)

(3) 42 U.S.C. § 1985(2):
If two or more persons in any State or Territory 

conspire to deter, by force, intimidation, or threat, 
any party or witness in any court of the United States 
from attending such court, or from testifying to any 
matter pending therein, freely, fully, and truthfully, 
or to injure such party or witness in his person or 
property on account of his having so attended or 
testified, or to influence the verdict, presentment, or 
indictment . . .; or if two or more persons conspire 
for the purpose of impeding, hindering, obstructing, 
or defeating, in any manner, the due course of jus­
tice in any State . . ., with intent to deny to any 
citizen the equal protection of the laws, or to injure 
him or his property for lawfully enforcing, or at­
tempting to enforce, the right of any person, or class 
of persons, to the equal protection of the laws; * * * 

We presume Schroeders are relying on § 1985(2) in 
this respect since it is clear that § 1985(1) and (3) have 
no application to their suit.



-5 a-

conspiracy to interfere with, or injure any Sehroeder wit­
ness; none of deprivation of equal protection of the law; 
and none that these defendants were acting under color 
of state law. Thus no claim was presented under 42 U.S.C. 
§ 1985(2) and 28 U.S.C. § 1343(3) upon which jurisdiction 
could be based, and no federal question arises under the 
fourteenth amendment to confer § 1331 jurisdiction.

Most of the complaint is devoted to the claim that the 
Schroeders were deprived of their fee title without due 
process because the Circuit Court at the trial ordered that 
the Trustees acquired a fee simple title in Schroeders’ 
property, and the Illinois Supreme Court affirmed the 
order, all allegedly without authority in law. They allege 
that Illinois statutory and decisional law limited the au­
thority of the courts, on the facts of the condemnation 
case, to transferring of an easement for school purposes, 
leaving Schroeders a reversionary interest. The claim 
is that the Illinois court decisions in this ease deprived 
them of due process under the fifth and fourteenth amend­
ments, and that if execution upon the condemnation judg­
ment is made and if defendants are permitted to take and 
hold possession of the fee title Schroeders will further 
be denied due process.

The relief sought is a declaration that the Illinois court 
decisions, in proceedings at trial and on review, are void 
even though the courts had jurisdiction of the subject 
matter and parties. These allegations, even if true, do not 
present either a ground for federal question jurisdiction 
under 28 U.S.C. § 1331, since the state court admittedly 
had jurisdiction over the parties and the subject matter, 
Chance v. County Board of School Trustees, 332 F. 2d 971,

(TJ. 8. Court of Appeals Opinion)



— 6a—

974 (7th Cir. 1964); or a ground upon which to obtain 
review of the state court proceedings by a federal district 
court under 28 U.S.C. § 1343 through invocation of 42 
U.S.C. § 1983, Goss v. State of Illinois, 312 F. 2d 257, 259 
(7th Cir. 1963). Schroeders attempt “to thwart” the final 
state court judgments by relitigating in a trial de novo the 
very issues wdiieh were, or should have been, raised in 
the state courts concerning state law, and upon which cer­
tiorari to the United States Supreme Court might have 
been sought. To paraphrase what was said in Goss about 
permitting such “appellate procedure,” if it were done 
many state court judgments would be faced with chaos 
and unenforceability. 312 F. 2d at 259. Thus there is also 
no independent ground for jurisdiction to enter a declara­
tory judgment under 28 U.S.C. ■§ 2201.

The injunctive relief sought against state officials from 
enforcing the condemnation judgment, and against the 
Trustees from taking possession under their fee title, pre­
supposes a declaration that the decisions of the Illinois 
judges in the Schroeder condemnation ease are void. The 
same is true of the relief sought against defendant Kor- 
zen, County Treasurer, custodian of the funds due Schroe­
ders. And no allegation of any violation of Schroeders’ 
civil rights is made against defendants Wahler and Pe- 
cyna, their former attorneys.

For the reasons given, the judgment is affirmed.

A true Copy:
Teste:

(U. S. Court of Appeals Opinion)

Clerk of the United States Court of 
Appeals for the Seventh Circuit



A PPEN D IX  B

CONSTITUTIONAL PROVISIONS INVOLVED.
Fifth Amendment, United States Constitution:

“No person shall be held to answer for a capital, 
or otherwise infamous crime, unless on a present­
ment or indictment of a Grand Jury, except in cases 
arising in the land or naval forces, or in the Militia, 
when in actual service in time of War or public dan­
ger ; nor shall any person be subject for the same of­
fence to be twice put in jeopardy of life or limb; nor 
shall be compelled in any criminal case to be a wit­
ness against himself, nor be deprived of life, liberty, 
or property, without due process of law; nor shall 
private property be taken for public use, without 
just compensation.”

The Fourteenth Amendment to the United States Con­
stitution provides in pertinent part:

“All persons born or naturalized in the United 
States, and subject to the jurisdiction thereof, are 
citizens of the United States and of the State where­
in they reside. No State shall make or enforce any 
law which shall abridge the privileges or immunities 
of citizens of the United States; nor shall any State 
deprive any person of life, liberty, or property, with­
out due process of law; nor deny to any person within 
its jurisdiction the equal protection of the laws.”



A PPE N D IX  C

STATUTES INVOLVED.

28 U.S.C., § 1331(a). Federal question; amount in con­
troversy.
The district courts shall have original jurisdiction of 

all civil actions wherein the matter in controversy ex­
ceeds the sum or value of $10,000, exclusive of interest 
and costs, and arises under the Constitution, laws, or 
treaties of the United States.

28 U.S.C., § 1343(3). Civil rights and elective franchise.
To redress the deprivation, under color of any State 

law, statute, ordinance, regulation, custom or usage, of 
any right, privilege or immunity secured by the Consti­
tution of the United States or by any Act of Congress 
providing for equal rights of citizens or of all persons 
within the jurisdiction of the United States.

42 U.S.C., § 1981. Equal rights under the law.
All persons within the jurisdiction of the United States 

shall have the same right in every State and Territory to 
make and enforce contracts, to sue, be parties, give evi­
dence, and to the full and equal benefit of all laws and 
proceedings for the security of persons and property as 
is enjoyed by white citizens, and shall be subject to like 
punishment, pains, penalties, taxes, licenses, and exactions 
of every kind, and to no other. R.S. § 1977.



—9a-

42 U.S.C., § 1982. Property rights of citizens.
All citizens of the United States shall have the same 

right, in every State and Territory, as is enjoyed by white 
citizens thereof to inherit, purchase, lease, sell, hold, and 
convey real and personal property. E.S. § 1978.

42 U.S.C., § 1983. Civil action for deprivation of rights.
Every person who, under color of any statute, ordi­

nance, regulation, custom, or usage, of any State or Terri­
tory, subjects, or cause to be subjected, any citizen of the 
United States or other person within the jurisdiction 
thereof to the deprivation of any rights, privileges, or 
immunities secured by the Constitution and laws, shall 
be liable to the party injured in an action at law, suit 
in equity, or other proper proceeding for redress. R.S. 
§ 1979.

42 U.S.C., § 1985. Conspiracy to interfere with civil rights
—Preventing officer from performing duties.
(1) If two or more persons in any State or Territory 

conspire to prevent, by force, intimidation, or threat, any 
person from accepting or holding any office, trust, or place 
of confidence under the United States, or from discharging 
any duties thereof; or to induce by like means any officer 
of the United States to leave any State, district, or place, 
where his duties as an officer are required to be per­
formed, or to injure him in his person or property on 
account of the lawful discharge of the duties of his office, 
or while engaged in the lawful discharge thereof, or to 
injure his property so as to molest, interrupt, hinder, or 
impede him in the discharge of his official duties;

(Statutes Involved)



— 10a—

Obstructing justice; intimidating party, witness, or juror.
(2) If two or more persons in any State or Territory 

conspire to deter, by force, intimidation, or threat, any 
party or witness in any court of the United States from 
attending such court, or from testifying to any matter 
pending therein, freely, fully, and truthfully, or to injure 
such party or witness in his person or property on account 
of his having so attended or testified, or to influence the 
verdict, presentment, or indictment of any grand or petit 
juror in any such court, or to injure such juror in his 
person or property on account of any verdict, present­
ment, or indictment lawfully assented to by him, or of his 
being or having been such juror; or if two or more per­
sons conspire for the purpose of impeding, hindering, 
obstructing, or defeating, in any manner, the due course 
of justice in any State or Territory, with intent to deny 
to any citizen the equal protection of the laws, or to injure 
him or his property for lawfully enforcing, or attempting 
to enforce, the right of any person, or class of persons, 
to the equal protection of the laws;

Depriving persons of rights or privileges.
(3) If two or more persons in any State or Territory 

conspire or go in disguise on the highway or on the prem­
ises of another, for the purpose of depriving, either di­
rectly or indirectly, any person or class of persons of the 
equal protection of the laws, or of equal privileges and 
immunities under the laws; or for the purpose of pre­
venting or hindering the constituted authorities of any 
State or Territory from giving or securing to all persons 
within such State or Territory the equal protection of

(Statutes Involved)



■11a

the laws; or if two or more persons conspire to prevent 
by force, intimidation, or threat, any citizen who is law­
fully entitled to vote, from giving his support or advocacy 
in a legal manner, toward or in favor of the election of 
any lawfully qualified person as an elector for President 
or Vice President, or as a Member of Congress of the 
United States; or to injure any citizen in person or prop­
erty on account of such support or advocacy; in any case 
of conspiracy set forth in this section, if one or more 
persons engaged therein do, or cause to be done, any act in 
furtherance of the object of such conspiracy, whereby 
another is injured in his person or property, or deprived 
of having and exercising any right or privilege of a 
citizen of the United States, the party so injured or de­
prived may have an action for the recovery of damages, 
occasioned by such injury or deprivation, against any one 
or more of the conspirators. R.S. § 1980.

(Statutes Involved)



— 12a—

APPENDIX D

Traverse filed by Gerald A. Schroeder and Clara John­
son Schroeder, respondents, filed December 4, 1959, which 
is as follows:

(Title, signatures and verification not abstracted.)
Now comes the respondents, Gerald A. Schroeder, and 

Clara Johnson Schroeder, by their attorneys, Wahler & 
Pecyna, and traverses, denies and controverts the peti­
tioner’s right to condemn, and calls for strict proof of 
the following matters alleged in the petition:

1. Denies that the Trustees of Schools of Township 
42, North Range 11, East of the Third Principal Me­
ridian, Cook County, Illinois, are, by the “School Code” 
of the State of Illinois, effective May 1, 1945, and as 
subsequently amended, authorized or empowered to ac­
quire by eminent domain proceedings, or otherwise, or to 
hold for the benefit of the School Districts of said town­
ship, lands necessary for school purposes.

2. Denies that School District Number 57, Cook County, 
Illinois, is a duly organized or established or an existing 
school district located in Township 42, North Range 11, 
East of the Third Principal Meridian, Cook County, Illi­
nois.

3. Denies that said School District, as alleged in the 
petition, is governed by a Board of Education pursuant 
to the provisions of the school code of the State of Illinois.

4. Denies that in accordance with the provisions of 
the school code of the State of Illinois, that the Board 
of Education, School District Number 57, Cook County,



— 1 3 a

( Traverse)
Illinois, passed a resolution to acquire a fee simple title 
by purchase or condemnation or otherwise the following 
described real estate, to wit:

That part of the South half (y2) of the Southeast 
Quarter (1 4 ) of the Northeast quarter (%) of Sec­
tion 34, Township 42, North Range 11, East of the 
Third Principal Meridian lying Westerly of the 
Center line of Rand Road

also
That part of the North half (y2) of the Southeast 

Quarter (%) of the Northeast Quarter of Section 34, 
Township 42, North Range 11, East of the Third 
Principal Meridian lying Westerly of the center line 
of Rand Road, except the North 138 feet thereof.

5. Denies that the purpose of acquiring said real 
estate is to provide necessary school facilities in connec­
tion with the schools of said district.

6. Denies that a fair and reasonable cash offer has 
been made for said property to the owners thereof, and 
asserts that the offer made was wholly unfair and un­
reasonable.

7. Denies that petitioner has any right or power under 
and by virtue of the school code of the State of Illinois, 
effective May 1, 1945, and as subsequently amended to 
condemn said property as alleged in said petition, or 
that the said property, as alleged in said petition, lies 
wholly within School District Number 57, Cook County, 
Illinois.

8. Denies that this proceeding is valid.
9. Denies that the petitioner has taken each and every 

one of the necessary steps required to be taken in a con-



— 1 4 a -

(Tr averse J
demnation proceeding of the property described in the 
petition filed herein.

10. Denies that the petitioner has any legal right to 
condemn the property described in said petition or any 
part thereof.

11. Denies that the purpose of acquiring said real 
estate is to provide necessary school facilities, in whole 
or in part, and asserts that the property described in 
said petition is wholly in excess of that which is necessary, 
and further asserts that either all or a part thereof is 
for purposes or uses other than school facilities.

12. Denies that the petitioner has been authorized to 
acquire, hold and use the aforesaid property as described 
in the petition for the purposes or uses described in the 
petition, and asserts that the petitioner is acquiring said 
property by condemnation to hold and use for purposes 
other than necessary school facilities and for purposes 
and uses which are not authorized by statute.

13. Denies that a lawful and valid resolution was 
passed by the Board of Education, School District Num­
ber 57, Cook County, Illinois, authorizing the condemna­
tion of purchase of the property described in said petition.

14. Denies that any reasonable or fair plan or scheme 
has been arrived at, prepared or analyzed by the Board 
of Education, School District Number 57, Cook County, 
Illinois, regarding the schools in said district; or that a 
fair and reasonable plan or scheme as to the future needs 
of said district has been presented to it and considered.

15. Denies that the compensation to be paid by the peti­
tioner for the said property described in the petition



15a-

( Traverse)
cannot be agreed upon between the petitioner and the 
respondents, Gerald A. Schroeder and Clara Johnson 
Schroeder, and each of them, since no fair and reasonable 
offer had been submitted to them.

16. Denies that the purported use of the property by 
the petitioner has been determined upon definitely, and 
irrevocably, for the sole and exclusive purpose of provid­
ing schools presently or in the future for said district; 
and further denies that any degree of certainty exists for 
the purported use of property in the future.

17. Respondents further say that the area of land as 
described in said petition, sought to be acquired by con­
demnation, is grossly excessive for use as a school or 
for school purposes, and said taking in whole or in part 
is unnecessary.

18. Respondents further say that the action herein is 
arbitrary, capricious, unnecessary, and wholly without the 
authority of the Board of Education, School District 
Number 57, Cook County, Illinois, or the Trustees of 
Schools, Township 42, North Range 11, East of the Third 
Principal Meridian, Cook County, Illinois.

19. Denies that said tract, described in petitioner’s 
Petition to Condemn, is convenient and useful for the 
purported intended purposes of schools, and respondents 
say that there are other tracts more convenient and use­
ful for the purported intended purpose.

20. Respondents say that the land in question is lo­
cated in a highly congested area, on a main arterial high­
way, which carries tremendous traffic at high speed, and 
that placing a school or schools thereon is highly dan-



— 1 6 a —

(Traverse)
gerous to the children in said district, having in mind 
the area, location and use of way.

Wherefore, your respondents, Gerald A. Schroeder and 
Clara Johnson Schroeder, and each of them, respectfully 
pray that said petition be stricken and dismissed, and all 
costs be taxed to the petitioner.

Amendment to traverse filed by Gerald A. Schroeder 
and Clara Johnson Schroeder, respondents, on May 13, 
1960, which is as follows:

Now comes Gerald A. Schroeder and Clara Johnson 
Schroeder by Wahler & Pecyna, their attorneys, and by 
leave of Court first had and obtained, files their Amend­
ment to their Traverse heretofore filed herein by adding 
additional Paragraphs thereto numbered 21, 22 and 23, 
which are as follows:

21. Respondents further say that the area of land, as 
described in said Petition sought to be acquired by con­
demnation is farm land and that all of said property lies 
outside of the City or Village limits of Mount Prospect 
or any incorporated City or Village; Respondents further 
say that their dwelling, house, residence and home is 
located and situated upon the area of land, as described 
in said Petition and that all or at least the majority of 
the property sought to be condemned by the petitioners 
is within 40 rods of the dwelling of the respondents and 
owners of the land mentioned in the Petition and sought 
to be condemned by the Petitioners.

And further deny that the petitioners have any right 
or power under and by virtue of The School Code of the 
State of Illinois, effective May 1, 1945, and as subse-



— 17a-

(Tr averse)
quently amended to condemn all or any part of said prop­
erty, as alleged in said Petition by reason of the afore­
said facts.

22. The Respondents again specifically deny that the 
Petitioners have any right or power under and by virtue 
of The School Code of the State of Illinois, effective May 
1, 1945 and as subsequently amended to condemn any 
part or all of said property, as alleged in said Petition 
and affirmatively plead and show unto the Court that 
under the facts, as alleged in Paragraph 21 herein, the 
area mentioned in whole or in part is, by Statute, ex­
cluded from condemnation by virtue of Section 14-7 of 
The School Code of Illinois, Chapter 122 of the Smith - 
Hurd Illinois Annotated Statutes, which specifically pro­
vides that no tract of land outside the limits of any in­
corporated City or Village and within 40 rods of the 
dwelling of the owner shall be taken by the Board of 
Directors without the owner’s consent.

23. Respondents further say that they do not consent 
to the condemnation or taking of any part or all of the 
area described in the Petition and which they are the 
owners of; and further plead and say that Section 14-7 
of The School Code specifically denies and controverts 
the Petitioners’ right to condemn the area alleged in the 
Petition and further by reason of the hereinabove men­
tioned facts; Section 14-7 of The School Code of Illinois, 
Chapter 122, Smith-Hurd Illinois Annotated Statutes, 
provides as follows:

“Whenever any lot or parcel of land is needed by 
any university, college, township high school or other 
educational institution established and supported by



— 18a-

(Traverse)
this State or by a township therein, or by a school 
district, as a site for a building or for any educa­
tional purpose, and compensation for the lot or parcel 
of land cannot be agreed upon between the owners 
thereof and the trustees, board of education, or other 
corporate authority of the educational institution or 
school district, the corporate authority of the educa­
tional institution or school district may have the com­
pensation determined in the manner provided by law 
for the exercise of the right of eminent domain. In 
Class I counties, the school board shall engage counsel, 
pay all expenses and institute suit without any au­
thorization by the county board of school trustees; 
and the proceedings shall be in the name of the county 
board of school trustees for the use of the school 
district. But no tract of land outside the limits of 
any incorporated city or village and within 40 rods 
of the dwelling of the owner of the land shall be taken 
by the board of directors, created in Article 6, with­
out the owner’s consent; provided, however, that a 
tract of land outside the limits of any incorporated 
city or village lying not less than 200 feet from the 
dwelling of the owner of the land, which adjoins 
and is adjacent to a school site being used for school 
purposes may be taken by the board of directors in 
the manner provided by law for the exercise of the 
right of eminent domain for the purpose of enlarging 
such school site for educational and recreational pur­
poses.”