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Landry v. Smith

OPINION FILED NOVEMBER 15, 1978.

EDRINER LANDRY, PLAINTIFF-APPELLEE,

v.

SANDY STEILWELL SMITH, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. MILTON SOLOMON, Judge, presiding. MISS JUSTICE MCGILLICUDDY DELIVERED THE OPINION OF THE COURT:

The defendant appeals from a judgment entered in favor of the plaintiff for possession of an apartment occupied by the defendant, and for rent arrearages in the amount of $235.

On January 5, 1977, the plaintiff, Edriner Landry, filed a complaint pursuant to the Illinois Forcible Entry and Detainer Act claiming a right to possession of the premises located at 1811 Wesley, first floor, Evanston, Illinois, which were occupied by the defendant, Sandy Steilwell Smith, and her family. A trial was held on February 7, 1977. Landry testified that on December 23, 1976, she delivered a landlord's five-day notice to the defendant and her family informing them that their tenancy would be terminated if the past due rent was not paid within 5 days. The landlord's notice was admitted into evidence. After Landry presented her case, Smith moved for a directed verdict on the grounds that section 23 1/2-4.101(b) of chapter 23 1/2 of the Code of the City of Evanston required a landlord to deliver a 10-day written notice to a tenant before a tenancy could be terminated for nonpayment of rent. The trial judge denied the motion, stating that this provision was unenforceable because it conflicted with chapter 80, section 8, of the Illinois Revised Statutes (1975), which requires a 5-day written notice of termination for nonpayment of rent.

Smith presented her case and testified that in November and December 1976, she offered to pay Landry the full rental of $235 per month, but Landry declined to accept rent from her. After considering the evidence, the trial judge entered a judgment for possession and for $235 in favor of Landry. In addition, the writ of restitution was stayed for 13 days, and Landry was awarded judgment for use and occupancy during that period.

On February 18, 1977, Smith filed a motion to vacate the judgment alleging that her motion for a directed verdict was denied improperly. Smith contended that the relevant sections of the Evanston Code were a valid exercise of home rule authority of the City of Evanston and, therefore, were applicable to the tenancy which existed between Smith and Landry. On March 9, 1977, after hearing arguments on the motion, the trial judge denied the motion to vacate on the grounds that section 23 1/2-4.101(b) of the Code of the City of Evanston is unconstitutional in that it is not a proper exercise of the City of Evanston's power to regulate for the protection of the public health, safety, morals and welfare. On appeal, Smith argues that the trial judge improperly denied her motion to vacate.

The plaintiff, Edriner Landry, has not filed a brief as appellee in this court. However, under the authority of First Capital Mortgage Corp. v. Talandis Construction Co. (1976), 63 Ill.2d 128, 345 N.E.2d 493, we shall consider the merits of the appeal.

The first issue we must consider is whether Evanston's ordinance or Illinois' statutory provision prevails. Section 23 1/2-4.101(b) of Evanston's Residential Landlord and Tenant Ordinance, which was adopted in 1975, states:

"If rent is unpaid when due, and the tenant fails to pay the unpaid rent within ten (10) days after written notice by the landlord of his intention to terminate the rental agreement if the rent is not paid within ten (10) days, the landlord may terminate the rental agreement."

Section 8 of the Illinois Forcible Entry and Detainer Act (Ill. Rev. Stat. 1975, ch. 80, par. 8) which was enacted in 1873 and amended in 1909, provides in part:

"* * * a landlord or his agent may, any time after rent is due, demand payment thereof and notify the tenant, in writing, that unless payment is made within a time mentioned in such notice, not less than five days after service thereof, the lease will be terminated."

• 1 The Illinois Forcible Entry and Detainer Act which was last amended in 1909 does not limit or deny the right of a home rule unit to enact legislation concerning the eviction process. Although Evanston's 10-day notice requirement is in conflict with Illinois' 5-day provision, the supreme court has consistently held that an ordinance enacted by a home rule unit supersedes a conflicting statute enacted prior to the effective date of the Constitution. (Stryker v. Village of Oak Park (1976), 62 Ill.2d 523, 343 N.E.2d 919; Paglini v. Police Board (1975), 61 Ill.2d 233, 335 N.E.2d 480; Peters v. City of Springfield (1974), 57 Ill.2d 142, 311 N.E.2d 107; People ex rel. Hanrahan v. Beck (1973), 54 Ill.2d 561, 301 N.E.2d 281; Kanellos v. County of Cook (1972), 53 Ill.2d 161, 290 N.E.2d 240.) Therefore, Evanston's ordinance is the applicable law. It was error for the trial court to deny the motion for a directed verdict on the grounds that the provision of the Evanston ordinance was unenforceable because it conflicted with the Illinois statute.

The second issue we must resolve is whether the trial court erred in holding that section 23 1/2-4.101(b) of Evanston's Residential Landlord and Tenant Ordinance was not a proper exercise of Evanston's home rule powers. In addition to the defendant, the City of Evanston, as amicus curiae, filed a brief in support of the City's ordinance.

The 1970 Illinois Constitution provides for home rule powers for any municipality which has a population of more than 25,000. The City of Evanston with a population in excess of 25,000 is a home rule unit. Section 6 of article VII of the Constitution of 1970 enumerates the powers of home rule units. Section 6(a) provides:

"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."

Sections 6(g) and 6(h) provide the mechanism whereby the General Assembly specifically may deny or limit the exercise of a home rule power by home ...


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