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Kron v. Kucharski

AUGUST 26, 1975.

LAVERN W. KRON ET AL., PLAINTIFFS-APPELLANTS,

v.

EDMUND J. KUCHARSKI, COUNTY TREASURER, ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Cook County; the Hon. FRANCIS T. DELANEY, Judge, presiding.

MR. JUSTICE HAYES DELIVERED THE OPINION OF THE COURT:

Plaintiffs brought this action as taxpayers of Illinois and Cook County on their own behalf and on behalf of all other taxpayers similarly situated. They sought declaratory and equitable relief, including restitution and an accounting, *fn1 from certain actions taken by the Cook County Board of Commissioners (hereinafter the County Board) in the summer of 1969. At that time, additional revenue of approximately 23 million dollars became available to Cook County from the State by action of the Illinois General Assembly. These funds first became available after the regular annual appropriation bill for fiscal year 1969 had been adopted in December of 1968. On 21 August 1969, pursuant to Public Act 76-412, *fn2 amending "An Act to revise the law in relation to counties" (Ill. Rev. Stat. 1969, ch. 34, par. 958), the County Board enacted a Supplemental Appropriation Bill and a Revised Position and Classification Plan. These measures were designed to provide for salary increases and increases in annual salary increments for most Cook County employees and many Cook County officers. The Supplemental Appropriation Bill provided that the new salaries were to be deemed in effect as of the start of fiscal year 1969 as to any employee or officer affected who had worked for Cook County during the first eight months of that fiscal year and who was still working for the County on the date of the adoption of the Supplemental Appropriation Bill. By resolution, the County Board then provided that the Supplemental Appropriation Bill was to supersede the Annual Appropriation Bill enacted on 20 December 1968, and the Position and Classification Plan of the Annual Appropriation Bill was to be superseded by the Revised Position and Classification Plan of the Supplemental Appropriation Bill.

Ultimately, cross-motions for summary judgment were considered. On 3 April 1973, the trial court granted defendants' cross-motion for summary judgment without stating any reasons for doing so. From that order, plaintiffs take this appeal.

In order to understand the contentions of the parties, it is first necessary to provide a summary of the statutory provisions relating to appropriations by the Cook County Board of Commissioners. The relevant provisions are found in sections 61.6-61.14 of "An Act to revise the law in relation to counties" (Ill. Rev. Stat. 1969, ch. 34, pars. 951-959). Section 61.7 (par. 952) provides that the county board shall adopt an annual appropriation bill within the first quarter of each fiscal year. Sections 61.8-61.10 (pars. 953-955) provide for the mechanics the county board is to use in the preparation of the annual appropriation bill, including public notice and hearings. Section 61.12 (par. 957) provides for amendments to the annual appropriation bill, but only within a very limited period of time after the annual appropriation bill is first adopted. Section 61.13 (par. 958) provides that after the annual appropriation bill has been adopted and after the expiration of the very limited period of time for amendment, no changes are to be made thereafter until the next annual appropriation bill (with certain exceptions in cases of casualty or charges imposed by law). Section 61.13 (par. 958) also contains the language of Public Act 76-412 which is set forth in footnote 2 above. Finally, section 61.14 (par. 959) provides for sanctions in cases of violations of section 61.13 (par. 958), but specifically states that these sanctions do not bar any other remedies at law or in equity. With this background, the contentions of the parties may be more readily understood.

Plaintiffs first contend that authorization of a supplemental appropriation bill does not constitute authorization of an appropriation bill which supersedes the annual appropriation bill. In so arguing, plaintiffs distinguish the term "supplement" from the term "amend". It is plaintiffs' theory that a "supplemental" bill can only appropriate for additional items for which no provision had been made in the annual appropriation bill. By way of contrast, plaintiffs urge that only an "amendatory" appropriation bill could permit the appropriation of newly available funds so as to effect a change in, or even to add to, items or purposes which had been covered in the annual appropriation bill.

If this first contention is not sustained, plaintiffs then contend that salary increases given to certain Cook County officers are void as contrary to two provisions of the Illinois Constitution of 1870, which was then in effect: Illinois Constitution of 1870, article X, section 10, and article IX, section 11. In addition, plaintiffs argue that salary increases to other employees and officers in the eighth month of fiscal year 1969 violate a specific statutory prohibition in section 61.17 (Ill. Rev. Stat. 1969, ch. 34, par. 1101), to which statutory prohibition Public Act 76-412 makes no express exception; and further that, when such salary increases are then made retroactive to the start of the said fiscal year for such employees and officers who worked for the County during the first eight months of the fiscal year and were still working for the County at the date of the adoption of the Supplemental Appropriation Bill, such action constitutes a gift to such employees and officers, and a gift of county funds is an improper corporate purpose. Finally, plaintiffs contend that to uphold the Supplemental Appropriation Bill would result in an unlawful taking of taxpayers' property without due process of law.

Defendants respond that the Supplemental Appropriation Bill was authorized by the General Assembly's proviso to section 61.13 (par. 958). As such, the Supplemental Appropriation Bill related back to the beginning of the fiscal year so that any increases in compensation were not technically retroactive, nor were they in violation of any statutory or constitutional provision. Finally, the defendants argue that none of the Cook County officers who received increases in compensation were covered by the constitutional provisions prohibiting such increases in salary.

As can be seen, this case initially must turn on the meaning of "supplemental" within the terms of Public Act 76-412 amending section 61.13 (Ill. Rev. Stat. 1969, ch. 34, par. 958). In construing that term, we bear in mind that "[t]he cardinal rule in statutory construction is that the statute be construed so as to ascertain and give effect to the intention of the General Assembly as expressed in the statute." Inskip v. Board of Trustees (1962), 26 Ill.2d 501, 510, 187 N.E.2d 201, 206.

• 1 Plaintiffs contend that the Supplemental Appropriation Bill enacted by the Board on 21 August 1969 was an "amendatory" rather than a "supplemental" appropriation bill and, as such, was not authorized by Public Act 76-412. It was amendatory because it changed some of the salary and compensation provisions of the annual appropriation bill, whereas a supplemental appropriation bill properly is one which would merely add further appropriations to the appropriations in the annual bill without changing any of the appropriations in the annual bill. Plaintiffs accurately cite, inter alia, Swanson v. State (1937), 132 Neb. 82, 271 N.W. 264, as holding the definition of "supplementary" for which they contend.

Defendants cite Priest v. City of Wapakoneta (1937), 8 Ohio Op. 435, 24 Ohio L. Abs. 230, 32 N.E.2d 758, which is a case involving a municipal appropriation ordinance. Under applicable Ohio statutes, the municipality was authorized to adopt subsequent ordinances either amending or supplementing its annual appropriation ordinance. Another Ohio statute provided that no ordinance or section thereof shall be amended unless the new amending ordinance contains the entire ordinance or section amended. The City of Wapakoneta, on 2 January 1936, had adopted its annual appropriation ordinance. Section 9 of that appropriation ordinance provided for an appropriation from the City's Electric Light Fund. On 26 March 1936, the City adopted an appropriation ordinance appropriating further funds from its Electric Light Fund for a proper additional purpose which had not been included in Section 9 of the annual appropriation ordinance. The ordinance of 26 March 1936 did not contain within itself any part of section 9 of the annual appropriation ordinance. In a class action a municipal taxpayer sued for injunctive relief on the contention, inter alia, that the ordinance of 26 March 1936 amended section 9 of the annual appropriation ordinance and was illegal for failure to contain within itself the whole of the said section 9. As to that contention, the court held that the appropriation ordinance of 26 March 1936 did not amend but rather merely supplemented section 9 of the annual appropriation ordinance, and therefore the requirements for an amending ordinance were inapplicable. In reaching this result, the court used definitions of the terms "amended" and "supplemental" which it conceded were definitions of those terms in a much narrower sense than the sense in which the terms were frequently and commonly used. It did so because the statute empowering a municipality to adopt appropriation ordinances subsequent to its annual appropriation ordinance used both the terms "amended" and "supplemented", so that, in order to give meaning to both terms, the narrower definitions had to be used for each term.

But the Ohio court also said that, in the broader sense, the term "amended" "comprehends the legal effect of any ordinance subsequently adopted relating to the subject matter of the original ordinance, including any ordinance adding to its provisions without making changes in its phraseology or effect." In other words, in its broader sense "amended" includes "supplemental."

In Swanson, (the holding of which supports plaintiffs' contention), the Nebraska court, however, cited and quoted from a New Jersey case (Rahway Savings Institution v. Mayor and Common Council of the City of Rahway (1890), 53 N.J.L. 48, 20 A. 756). The New Jersey court held that, for purposes of construing its State Constitution, the ordinary meaning of the term "supplemental" is "a supplying by addition of what is wanting," but then held further that the ordinary meaning will cover "every species of amendatory legislation which goes to complete the legislative scheme." In other words, "supplemental", even in its ordinary meaning, includes "every species of amendatory legislation which goes to complete the legislative scheme".

We conclude that the cases demonstrate that, for construction purposes, the meaning of "supplemental" for which plaintiffs contend is the accurate narrower meaning of the term; but that the term also has a broader meaning which includes "amendatory", and that "amendatory" also has a broader meaning which includes "supplemental".

We turn now to the construction of "supplemental" as used in Public Act 76-412. Sometime in 1969, after the Board had adopted its annual appropriation bill in December of 1968, the General Assembly had made available to the County an additional 23 million dollars. The State statute (Ill. Rev. Stat. 1969, ch. 34, par. 958) prohibited the County Board from making any changes in its Annual Appropriation Bill after the said bill had been adopted and after the very limited period of time for amendment had expired. But Public Act 76-412 was then enacted by the General Assembly as a part of, and as an exception to, section 61.13 (par. 958): "Notwithstanding the foregoing provisions of this Section [par. 958] or Section 61.7 [par. 952] * * *." By way of exception, then Public Act 76-412 empowered the County Board, but only during fiscal year 1969, to adopt a "supplemental" appropriation bill appropriating for any proper ...


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