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Allen v. County of Cook

OPINION FILED NOVEMBER 15, 1976.

JOHN T. ALLEN, JR., APPELLANT,

v.

THE COUNTY OF COOK ET AL., APPELLEES. — CARL R. HANSEN ET AL., APPELLANTS,

v.

THE COUNTY OF COOK ET AL., APPELLEES.



Appeal from the Circuit Court of Cook County; the Hon. Walter P. Dahl, Judge, presiding.

MR. JUSTICE GOLDENHERSH DELIVERED THE OPINION OF THE COURT:

On January 29, 1976, plaintiff, John T. Allen, Jr., "a citizen and taxpayer, on behalf of himself and all others similarly situated in Cook County," filed this action against defendants, the County of Cook, George W. Dunne, president of the Board of Commissioners of Cook County, and the other 14 incumbent members of the Board, seeking a declaratory judgment that Cook County Ordinance No. 75-0-34, enacted on October 20, 1975, was invalid, and an injunction to prevent the appropriation of money "in excess of $2500.00 without first obtaining the vote of at least two-thirds of the members elected to the Cook County Board." The 10 members of the Board elected from the city of Chicago (hereafter city members), among whom was the president of the Board, represented by the State's Attorney, moved to dismiss the complaint. The five members of the Board elected from outside the city (hereafter suburban members), represented by their own attorney, filed an answer admitting the allegations of plaintiff's complaint, and a counter-complaint against the county and the 10 city members of the Board, seeking substantially the same relief that was requested in plaintiff's complaint. Floyd T. Fulle, a suburban member, had resigned on December 9, 1975; Joseph A. Tecson was elected to fill the vacancy and became a member of the Board on February 11, 1976. Tecson was given leave to intervene, and adopted the answer and counter-complaint of the other five suburban members. The 10 city members moved to dismiss the counter-complaint. The circuit court dismissed the complaint and counter-complaint with prejudice, plaintiff and counter-plaintiffs appealed, and we allowed their motion for direct appeal. Rule 302(b).

It appears from the complaint, the counter-complaint and the accompanying exhibits that a meeting of the Board of Commissioners of Cook County was held on October 20, 1975, "pursuant to adjournment." The 10 city members and five of the six suburban members were present. A motion was made and seconded to approve and adopt an ordinance appropriating $2,000,000 (Ordinance No. 75-0-33) from the motor fuel tax fund to the Regional Transportation Authority. The 10 city members voted "yea" and the five suburban members voted "nay." When the president of the Board announced that the ordinance was approved, a suburban member challenged the announcement and stated that the appropriation measure required a two-thirds vote of the members elected to the Board.

A city member then presented Ordinance No. 75-0-34, which amended Ordinance No. 73-0-8, enacted on February 20, 1973. Ordinance No. 73-0-8 provided that an appropriation "beyond the sum of $5000" must be "authorized by a vote of at least two-thirds of the members elected to the said county board." Ordinance No. 75-0-34, in pertinent part provided:

"No money shall be appropriated or ordered paid by said County Commissioners beyond the sum of $5,000.00, unless such appropriation shall have been authorized by a vote of a majority of the members elected to said county board."

The ordinance, as did also Ordinance No. 73-0-8, recited that it was "specifically intended to supersede Section 61.6 * * * of `An Act to revise the law in relation to counties'" (Ill. Rev. Stat. 1975, ch. 34, par. 951), which in pertinent part provided:

"No money shall be appropriated or ordered paid by said county commissioners beyond the sum of $2,500, unless such appropriation shall have been authorized by a vote of at least two-thirds of the members elected to the said county board."

The 10 city members voted for, and the five suburban members voted against, the adoption of Ordinance No. 75-0-34. The $2,000,000 appropriation to the Regional Transportation Authority was then reconsidered, the 10 city members voted for, the five suburban members voted against its adoption, and the president of the Board announced that it was adopted pursuant to the provisions of Ordinance No. 75-0-34.

Plaintiff contends that the county board was not empowered to enact Ordinance No. 75-0-34 "to supersede" the statute for the reason that it did not involve a power or function pertaining solely to the government and affairs of Cook County, that it violated the equal protection of the laws provisions of the United States and Illinois constitutions and that the meeting at which it was approved did not comply with "An Act in relation to meetings" (Ill. Rev. Stat. 1975, ch. 102, par. 41 et seq.) (the Open Meetings Act). The suburban members contend that the ordinance effectively changed the form of government of Cook County, that it apportioned the county contrary to the provisions of the 1970 Illinois Constitution, and that it was adopted contrary to the rules of the Board. We consider first the contention that the ordinance does not pertain solely to the government and affairs of the defendant county.

Plaintiff argues that the appropriation of money by Cook County is of "statewide interest" and therefore the manner in which it makes its appropriations may be regulated only by State law. He states that "Unlike any other county, the General Assembly was given the authority under Article X, Section 7, of the Illinois Constitution of 1870 to adopt special legislation concerning the management of Cook County"; that "the operation of Cook County government has always been of unique and special interest to the entire State of Illinois"; that "This statewide interest in the affairs of Cook County is reflected in Section 61.6 of the Counties' Act [citation], which was purportedly superseded by the Cook County Board in Ordinance No. 75-0-34"; and that "the appropriation of money by the Cook County Board is clearly of statewide concern because a considerable portion of the funds appropriated by it are State funds." In support of his position he cites Ampersand, Inc. v. Finley (1975), 61 Ill.2d 537, Cummings v. Daley (1974), 58 Ill.2d 1, Paper Supply Co. v. City of Chicago (1974), 57 Ill.2d 553, and Bridgman v. Korzen (1972), 54 Ill.2d 74.

In each of these cases we held an ordinance invalid for the reason that the power sought to be exercised by the home rule unit of government did not, within the contemplation of article VII, section 6(a), of the 1970 Constitution, pertain to its "government and affairs." In Ampersand, Inc., the Cook County Board adopted an ordinance directing the clerk of the circuit court of Cook County to collect a county law library fee of $2 to be paid at the time of the filing of the first pleading or other appearance by each party in all civil cases. The ordinance purported to supersede a statute which contained substantially the same provisions except that the ordinance increased the filing fee from $1 to $2. We held the ordinance invalid for the reason that the administration of justice, by virtue of article VI of the 1970 Constitution, was a matter of statewide concern, and the power to impose a condition to the right to litigate in the courts did not pertain to the county's "government and affairs." Cummings and Paper Supply Company involved Chicago ordinances which provided for the method of judicial review of administrative decisions made under those ordinances. We held that the method of judicial review of these administrative decisions was not a function pertaining to the government and affairs of the city, and that the determination of the manner or method of such review was not within the powers conferred upon it as a home rule unit.

We do not agree with plaintiff that the rationale of Bridgman was that the ordinance was invalid for the reason that Cook County was attempting to exercise power over a matter of statewide concern. The Cook County Board had adopted an ordinance attempting to alter the statutorily fixed dates and frequency of property tax collections. We held the ordinance invalid because "In the process of collecting and distributing tax monies the county acts both for itself and the other taxing bodies authorized to levy taxes on property within the county, and the function thus performed does not pertain to its government and affairs to any greater extent than to the government and affairs of the other taxing bodies for whose benefit it acts." 54 Ill.2d 74, 78.

The defendant county is a home rule unit of local government and the constitutional and statutory relationship that previously existed between it and the General Assembly, and upon which plaintiff relies in arguing a "state-wide interest" in the appropriations of Cook County, was drastically altered by the 1970 ...


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