APPEAL from the Circuit Court of Cook County; the Hon. SAMUEL
B. EPSTEIN, Judge, presiding.
MR. PRESIDING JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:
Rehearing denied January 2, 1974.
This is an appeal from an order of the Circuit Court of Cook County dismissing an action for a declaratory judgment and injunction on the basis of res judicata.
Plaintiff, the City of Des Plaines (hereafter called City), filed a complaint in the Circuit Court on August 9, 1972, against the defendant, Metropolitan Sanitary District (hereafter called District), seeking a declaratory judgment that the City, as a home rule unit of local government, may regulate the land use activities of the District, a special district under the 1970 Illinois constitution, and seeking an injunction restraining the District from erecting and operating a sewage treatment plant in derogation of the City's zoning ordinance.
The District moved to dismiss the complaint on the basis that a prior decision of the Illinois Supreme Court (City of Des Plaines v. Metropolitan Sanitary District, 48 Ill.2d 11, 268 N.E.2d 428,) barred the action under the doctrine of res judicata. In support of its motion defendant offered a copy of the complaint filed by the City against the District on November 4, 1966, alleging that the cause of action and issues set forth in the complaint as well as the parties thereto, are identical to the present action.
Plaintiff resisted the motion on the ground that the present action, unlike the first, is founded on the home rule provisions of Article VII of the 1970 Illinois Constitution which established a new legal relationship between the parties resulting in new questions of law supported by different legal theories. After argument by counsel for both parties, the trial court entered an order granting the District's motion to dismiss.
An examination of the record indicates that the complaint filed on August 9, 1972, differs from the action filed on November 4, 1966, only in respect to the designation of the parties under home rule along with their attendant powers and limitations. Therefore, the sole question befor this court is whether the intervention of the home rule provisions of the 1970 Illinois Constitution precludes application of the res judicata doctrine.
• 1, 2 The doctrine of res judicata is of judicial origin and has been characterized as a rule of convenience designed to prevent repetitious law suits over matters which have once been decided and which have remained substantially static, factually and legally, but which must give way where there has been a change in the fundamental controlling legal principles. (See, Commissioner v. Sunnen, 333 U.S. 591, 597-99, 92 L.Ed. 898, 68 S.Ct. 715.) Similarly, the rule prevails in Illinois that res judicata extends only to the facts and conditions as they were at the time a judgment was rendered, and to the legal rights and relations of the parties as fixed by the facts so determined; and when new facts or conditions intervene before the second action, establishing a new basis for the claims and defenses of the parties respectfully, the issues are no longer the same, and hence the former judgment cannot be pleaded as a bar in the subsequent action. (People ex rel. Cherry Valley Fire Protection District v. City of Rockford, 122 Ill. App.2d 272, 258 N.E.2d 577; Seno v. Franke, 16 Ill. App.2d 39, 147 N.E.2d 469.) Even though the basic facts have not changed, it is generally accepted that res judicata does not operate as an automatic bar where between the time of the first judgment and the second there has been an intervening decision or a change in the law creating an altered situation. (State Farm Mutual Automobile Insurance Co. v. Duel, 324 U.S. 154, 89 L.Ed. 812, 65 S.Ct. 573; C.O. Baptista Films v. Cummins, 9 Ill.2d 259, 137 N.E.2d 393; Deke v. Huenkemeier, 289 Ill. 148, 124 N.E. 381), or where the party relitigates his claim on a new and more correct theory reflecting an essential difference in the two causes of action. (Gudgel v. St. Louis Fire & Marine Insurance Co., 1 Ill. App.3d 765, 274 N.E.2d 597; Ivanhoe v. Buda Co., 247 Ill. App. 336.) However, the scope and operation of the above rules must always be viewed in light of the basic premises that res judicata bars a second action where there is identity of parties, issues, and subject matter (American National Bank & Trust Co. v. Zoning Board of Appeals, 12 Ill. App.3d 794, 299 N.E.2d 147); and that the party cannot evade the rule by merely changing the form of his complaint. It is within this context that the effect of the home rule provisions on the issues of the original action must be determined.
In determining the effect of home rule in the instant case, it is appropriate to note the legal relationship between the parties prior to its adoption. Until the 1970 Constitution, cities and villages had no inherent powers and could not act legally in any matter unless expressly or impliedly authorized by state statute. (See, e.g., Ives v. City of Chicago, 30 Ill.2d 582, 198 N.E.2d 518.) Further, under this rule of legislative supremacy, statutory grants of power were narrowly construed in accordance with so-called "Dillon's Rule":
"It is a general and undisputed proposition of law that a municipal corporation possesses and can exercise the following powers, and no others: First, those granted in express words; second, those necessarily or fairly implied in or incident to the powers expressly granted; third, those essential to the accomplishment of the declared objects and purposes of the corporation, not simply convenient, but indispensable. Any fair, reasonable, substantial doubt concerning the existence of power is resolved by the courts against the corporation, and the power is denied." Dillon, Municipal Corporations (5th ed. 1911), 448-50.
It was within this legal setting that the Supreme Court adjudicated the rights of the present parties in City of Des Plaines v. Metropolitan Sanitary District, 48 Ill.2d 11. In that case, the City sought to enforce its zoning ordinance against the District on the theory that the separate statutory powers of each party gave both the City and the District an equal right to discharge these individual statutory obligations without unreasonable interference from the other and that, therefore, the District could not locate its sewage treatment plant within the city in total disregard of the City's zoning ordinance. Under the then-existing law, both parties were mere creatures of the legislature occupying positions of parallel strength in their relationship to each other and thus, the City argued, neither one could completely ignore the power of the other.
The court found, however, that the statute empowering the District to acquire land by condemnation within its corporate limits "clearly authorized the taking of the property in question in the City of Des Plaines." (48 Ill.2d 11, 14.) The court further stated: "If the district is exercising power within the statutory grant, such exercise is not subject to zoning restrictions imposed by the host municipality." 48 Ill.2d 11, 14.
In reaching its conclusion, the court quoted Decatur Park District v. Becker, 368 Ill. 442, 14 N.E.2d 490, which held that the Park District could condemn property for park purposes notwithstanding the fact the purpose was not included in the zoning restrictions: "The appellee is given authority to locate parks, and the city is given authority to adopt a zoning ordinance. The Legislature did not empower cities to exclude parks from residence districts. The two statutes should be construed so that the ordinance of the Park District and the zoning ordinance will be given effect in their respective fields of operation." (48 Ill.2d 11, 13.) Implicit in the decision of the Illinois Supreme Court in the earlier case was a specific application of the then-existing law enunciated in Dillon's Rule that is, a general legislative grant of power given to a municipal corporation must yield to a specific grant in another governmental unit where the two are in apparent conflict.
Subsequent to the decision in the Des Plaines case, the people adopted the Illinois Constitution of 1970 which expressly grants to home rule cities and villages the following ...