APPEAL from the Circuit Court of Henry County; the Hon. JAY M.
HANSON, Judge, presiding.
MR. JUSTICE HEIPLE DELIVERED THE OPINION OF THE COURT:
This case involves the payment of legal fees and costs incurred in three prior suits between the parties. The defendant city of Kewanee appeals the order of the circuit court of Henry County which awarded the legal fees and costs sought by the plaintiffs.
The defendant, city of Kewanee (City), removed plaintiffs David Anderson and Jerry Warner from their employment as police chief and fire chief, respectively. On May 10, 1979, Warner filed a complaint for declaratory judgment and writ of mandamus in case No. 79-MR-76, seeking restoration to the office of fire chief. On June 25, 1979, order was entered directing the clerk of Henry County circuit court to issue a writ of mandamus to allow Warner to resume office. The order further stated that Warner "shall have his costs of the suit."
Similar redress was sought by David Anderson seeking restoration to the office of police chief in case No. 79-MR-81. On June 25, 1979, similar order was entered restoring Anderson to his former position as police chief. Likewise, the order provided "[t]hat the plaintiff [Anderson] shall have his costs of suit."
Again removed from office by the City, Warner and Anderson jointly filed a complaint for declaratory judgment and mandamus on July 20, 1979, in case No. 79-MR-138. On September 17, 1979, order was entered thereon directing the clerk to issue a writ of mandamus to permit Warner to occupy the office of fire chief and to permit Anderson to occupy the office of police chief. Warner and Anderson were awarded "their costs of suit." Legal fees were never specifically requested or awarded in any of the three suits.
On January 11, 1980, Warner and Anderson's attorney wrote a letter to the City's attorney seeking a lump sum payment of legal fees and costs for cases Nos. 79-MR-76, 79-MR-81, and 79-MR-138 (hereinafter referred to as the 79 cases). As a basis for such recovery, City Ordinance No. 1988 (Kewanee Code, ch. 7, § 1-7-8) was cited.
The ordinance provides as follows:
"ORDINANCE NO. 1988 AN ORDINANCE PROVIDING FOR THE INDEMNIFICATION OF CERTAIN CITY OFFICIALS
WHEREAS, the City of Kewanee has from time to time been joined as a party defendant in litigation arising directly or indirectly out of the conduct of its government and affairs and has heretofore made provision for contingent liabilities in connection therewith by the purchase of public liability insurance; and
WHEREAS, such public liability insurance obtained by the City has in prior years customarily provided insurance coverage for officials of the City for acts taken in the course of carrying out their official duties and functions; and
WHEREAS, the sufficiency of such insurance for officials of the City has recently become subject to question, and the City Council finds that the personal and individual involvement of such officials of the City in pending and potential future litigation may have a material detrimental effect on the willingness of qualified persons to seek or accept the responsibility of acting in an official capacity on behalf of the City and that it is therefore desirable and in the best interests of the City and its residents to eliminate to the fullest extent permitted under applicable law the risk of individual liability on the part of City officials, so long as they act in good faith and without malice; and
WHEREAS, the City Council hereby finds that the indemnification of certain of its officials and employees pertains directly to the conduct of its government and affairs within the meaning of Section 6, Article VII of the Constitution of the State of Illinois of 1970,
NOW, THEREFORE, be it ordained by the Council of the City of Kewanee, Henry County, Illinois:
SECTION 1: To the fullest extent permitted by the Constitution of the State of Illinois of 1970 and applicable law, each of the following ...