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Pechous v. Slawko

OPINION FILED OCTOBER 1, 1976.

ROBERT C. PECHOUS ET AL., APPELLEES,

v.

MYRTLE D. SLAWKO ET AL., APPELLANTS. — FRED M. DUMKE ET AL., APPELLEES,

v.

LESTER E. ANDERSON ET AL., APPELLANTS.



Appeal from the Circuit Court of Cook County; the Hon. Arthur L. Dunne, Judge, presiding.

MR. JUSTICE SCHAEFER DELIVERED THE OPINION OF THE COURT:

These consolidated cases involve questions that relate primarily to the scope of the power of legislative bodies in home rule municipalities. One case involves the validity of ordinances adopted by the city council of the city of Berwyn (population 52,000), and the other involves the validity of ordinances adopted by the board of trustees of the village of Oak Lawn (population 63,000). In each case the legislative body of the municipality enacted ordinances designed to transfer to itself the power to appoint certain municipal officials, and the controversy centers upon the validity of that action. Peripheral issues are also presented in both cases. Judgment was entered in each case in favor of the plaintiffs, and the defendants appealed. We granted motions to transfer the cases to this court pursuant to Rule 302(b), and on our own motion consolidated them.

We consider first the primary issue as it concerns the city of Berwyn. In addition to its elected mayor, city clerk, city treasurer, and eight aldermen, the applicable statutes (Ill. Rev. Stat. 1975, ch. 24, pars. 3-7-1, 3-7-2, 3-7-5) provide for the appointment by the mayor, with the approval of the council, of certain other officers, including the city collector, superintendent of streets and commissioner of public works. The Municipal Code of the city provided that the named offices should be filled in the same way. The position of city attorney existed, but since 1965 there had apparently been no office of city attorney or corporation counsel. The statute also provides generally that a mayor may remove any officer appointed by him, and specifically in the case of these officers in a city of Berwyn's population, that "[t]he appointees to these offices shall be subject to removal by the mayor * * *." Ill. Rev. Stat. 1975, ch. 24, pars. 3-11-1, 3-7-5.

In May and June of 1975 the defendants, the aldermen of the city of Berwyn, enacted ordinances removing from office the incumbent superintendent of streets, commissioner of public works, and city collector, and appointing replacements for them. On June 9, 1975, the defendant aldermen adopted a resolution removing the incumbent city attorney. The plaintiffs, the mayor and city clerk of the city of Berwyn, brought this action challenging the power of the aldermen to exercise the powers of appointment and removal. The plaintiffs' motion for summary judgment was allowed, and the defendants were enjoined from exercising appointment or removal powers. The trial court held that the power to appoint and remove all municipal officers, "whether established by ordinance or State Statute lies solely with" the mayor, "subject only to the advice and consent of the members of the City Council, and that the power of dismissal or removal from office is incidental to the power of appointment and may be exercised only by the Mayor of Berwyn."

The members of the city council base their claim of authority to assume the power to appoint and remove municipal officers and employees upon the fact that the city of Berwyn is a home rule municipality. The relevant provisions of the Constitution of 1970 are sections 6(a) and 6(f) of article VII, which provide:

"(a) * * * Except as limited by this Section, a home rule unit may exercise any power and perform any function pertaining to its government and affairs including, but not limited to, the power to regulate for the protection of the public health, safety, morals and welfare; to license; to tax; and to incur debt."

"(f) A home rule unit shall have the power subject to approval by referendum to adopt, alter or repeal a form of government provided by law * * *. A home rule municipality shall have the power to provide for its officers, their manner of selection and terms of office only as approved by referendum or as otherwise authorized by law. * * *"

The defendants urge that these provisions mean that only "[t]hose changes in a home rule municipality which affect the basic nature of government are reserved to either the voters by referendum or the State legislature by statute." But the Constitution does not speak of changes in "the basic nature of government." It grants authority, subject to referendum approval, to "adopt, alter or repeal a form of government provided by law," and "to provide for its officers, their manner of selection and terms of office only as approved by referendum or as otherwise authorized by law."

The meaning which the defendants would give to the constitutional provisions is not what the draftsmen intended. The Report of the Committee on Local Government of the Constitutional Convention of 1970 contains this explanation of the purpose of those provisions, which were then identified as paragraph 4.3:

"But more than the manner of electing the county board is included within the meaning of `form of government.' It also includes the relative powers and functions of the county board and the chief executive officer of the county. Thus this paragraph contemplates that the General Assembly will provide for various patterns of county administrative organization — perhaps including the election of a county executive officer or the appointment of a county manager or administrative officer — and that counties will be permitted to select among these plans by referendum.

With respect to municipalities, the portion of paragraph 4.3 relating to `forms of government' contemplates that various plans for the election of municipal governing boards and for the relationship of legislative and executive branches of government within municipalities will be provided by the General Assembly for selection by various municipalities through a referendum. This is essentially the pattern that now prevails by statute. (See, generally, Ill. Rev. Stat. ch. 24 (1969).)" 7 Record of Proceedings, Sixth Illinois Constitutional Convention 1667; see also Baum, A Tentative Survey of Illinois Home Rule (Part I): Powers and Limitations, 1972 U. Ill. L.F. 137, 146-50.

While the defendants have based their authority to enact the ordinances in question upon their status as home rule municipalities, we think it important to point out that under section 7 of article VII of the Constitution of 1970 municipalities which are not home rule units also have the same authority "by referendum, to adopt, alter or repeal their forms of government provided by law," and "to provide by referendum for their officers, manner of selection and terms of office."

The "pattern that now prevails by statute" is the pattern contained in the Municipal Code of 1961, which provides for several alternative forms of municipal government. A municipality may be organized as a city or as a village having the form of government provided in article 3, and it may by referendum adopt the "Commission" Form of Municipal Government provided in article 4, or the "Managerial" Form of Municipal Government provided in article 5. (Ill. Rev. Stat. 1973, ch. 24, arts. 3, 4, and 5.) Different relationships between the legislative and executive branches of municipal government are provided in these different forms of government. Under the "Commission" Form of Municipal Government, for example, the statute provides that "[t]he council and its members shall possess and exercise all executive, ...


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