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Dumke v. Anderson

OPINION FILED DECEMBER 3, 1976.

FRED M. DUMKE ET AL., PLAINTIFFS-APPELLEES,

v.

LESTER E. ANDERSON ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of Cook County; the Hon. ARTHUR L. DUNNE, Judge, presiding.

MR. JUSTICE BARRETT DELIVERED THE OPINION OF THE COURT:

Fred Dumke as village president and Ernest Kolb as village clerk sought both declaratory and injunctive relief in an action brought in the name of the Village of Oak Lawn to prevent the abolition of the office of village collector or the reduction of its salary.

The facts pertinent to this appeal are as follows: The Village of Oak Lawn is a home-rule municipality with the village manager system of government. It has an elected president, clerk, and six-member board of trustees.

On May 10, 1966, acting under the statutory authority conferred by section 3-8-3 of the Illinois Municipal Code (Ill. Rev. Stat. 1965, ch. 24, par. 3-8-3), *fn1 the Village Board adopted Ordinance No. 67-1-3 as an amendment to article VI of the Oak Lawn Village Code. *fn2 That ordinance reads:

"Sec. 2-2115. Offices Combined.

Pursuant to the authority vested unto the village by the Illinois Revised Statutes, Chapter 24, Section 3-8-3, providing that where the village collector is appointed, the village clerk may hold said office of village collector, it is hereby made and provided for that the village clerk shall hold the office of village collector."

Plaintiff Ernest F. Kolb was elected to the office of clerk in 1969 and reelected in April 1973 to a four-year term expiring April 30, 1977. Upon his election, Kolb executed his official oath to faithfully discharge the duties of the "Office of Village Clerk-Collector," and received his "Official Commission" evidencing his election to the "Office of Village Clerk-Collector for the term from April 24, 1973 to April 30, 1977." Kolb also furnished a public official bond. *fn3 The annual salary established in the 1975 municipal budget for the office of village clerk included $4,500 as village clerk and $18,120 as village collector. He has received both salaries.

On November 24, 1975, the defendant Board moved to amend the budget ordinance by reducing the salary of the "Collector" to $1 per year, and instructed the village attorney on December 9, 1975, to prepare an ordinance abolishing the "office of Collector" effective December 31, 1975, the end of the fiscal year. Plaintiffs then instituted this action.

The trial court granted plaintiffs' motion for summary judgment, finding that Kolb was elected to the combined "Office of Clerk-Collector" of Oak Lawn for a term of four years to expire April 30, 1977. The court declared that the attempt of the Village Board to reduce the salary of Kolb for the "Office of Collector" to $1 per year was null and void, that the proposed ordinance to abolish the "Office of Collector" effective at the end of the current fiscal year, December 31, 1975, was null and void, and that the combined "Office of Clerk-Collector" could not be separated until the expiration of the incumbent's term of office. The court also enjoined defendants from abolishing the "office of Collector," or of reducing its salary until the expiration of the incumbent's term of office. Finally, the court assessed plaintiffs' costs and attorney's fees individually against defendant trustees. *fn4 It is from this decree that defendants appeal.

Subsequent to the entry of the preliminary injunction by the trial court, at the regular meeting of the Village Board on December 16, 1975, defendants, who were the Village trustees, passed the 1976 Municipal Budget Ordinance, "subject to the following amendments as directed by Court Order. The Village President's salary and [sic] Liquor Commissioner be restored to $12,005.00 plus $7,995.00 for a total of $20,000.00; also, as directed by the Court, the Village Clerk-Collector's salary be maintained at $22,620.00." *fn5 The trustees also tabled a proposed ordinance to abolish the "Office of Village Collector."

Three issues are presented to us for review — whether the salary of Kolb as collector may be reduced to $1 per year, whether the village board of trustees may abolish the office of collector effective at the end of the fiscal year, and whether the trial court properly taxed attorney's fees against the individual defendant trustees.

OPINION

The Illinois Constitution and the Illinois Revised Statutes prevent the reduction of an incumbent's salary during his term of office under certain circumstances. Article VII, section 9(b), of the Illinois Constitution provides:

"An increase or decrease in the salary of an elected officer of any unit of local government shall not take effect during the term ...


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