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Tupy v. Oremus

OPINION FILED APRIL 16, 1982.

LILLIAN TUPY, CLERK OF THE VILLAGE OF BRIDGEVIEW, PLAINTIFF-APPELLANT AND CROSS-APPELLEE,

v.

JOHN A. OREMUS, PRESIDENT OF THE VILLAGE OF BRIDGEVIEW, ET AL., DEFENDANTS-APPELLEES AND CROSS-APPELLANTS.



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

PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:

Plaintiff appeals from two orders of the trial court disposing of her three-count petition for mandamus, declaratory judgment, injunctive and other relief. Defendants also appeal from portions of both orders. Plaintiff here contends that (1) under an ordinance of the village of Bridgeview (village), she is entitled to serve as village collector by virtue of her election as village clerk; and (2) certain village salary ordinances are unconstitutional, as they were passed and took effect during defendant officials' same terms of office, so that payments made thereunder must be returned. Defendants contend that (1) the trial court erred (a) in not granting their motion to dismiss plaintiff's taxpayer action for failure to comply with statutory requirements and (b) in finding that one salary increase was void and in not ruling on the validity of earlier salary increases; and (2) plaintiff is not entitled to attorney fees.

Plaintiff alleged in counts I and II of her amended petition that she was elected village clerk on April 17, 1979, and took office on May 9, 1979; that on May 10, 1979, village president Oremus announced that the village treasurer had been assigned the duties of village collector, which duties the village clerk had performed in the past; that she had assumed the duties of village collector since her election, and only she and her deputy clerk knew how to perform certain functions of the collector's office; that defendants transferred the clerk's staff from her control in June 1979; and that defendants' actions were intended to intimidate her into resigning. Count I sought a writ of mandamus directing defendants to pay plaintiff the collector's salary of $8,500 for each of the four years of her term, as purportedly established by village ordinance; to reinstate the employees under her supervision and award attorney fees. Count II sought, inter alia, a declaratory judgment that under a village ordinance, plaintiff through election as village clerk was entitled to serve as village collector, with the "salary and emoluments" of that office, for a 4-year term expiring April 30, 1983, as previously established by the village authorities.

Count III of the amended petition was brought as a taxpayer action on behalf of plaintiff, all other village taxpayers, and the village, challenging a 1975 salary increase ordinance for the village president and liquor control commissioner and a similar 1979 ordinance for those offices and three trustees elected that year. Relative to that count, it appears that on April 15, 1975, Oremus was re-elected village president, and on April 24, 1975, at the first regular board meeting following the election, the village board of trustees (Board) amended the ordinance pertaining to the salary of village officials by increasing the salaries of both the president and liquor control commissioner from $1,500 under the prior ordinance to $2,500, the ordinance to become "effective commencing with the next term of office of the Village President, Village Clerk and the Village Trustees." (Bridgeview, Ill., Code of Ordinances, Ordinance 75-18 (1975).) At the same meeting, the Board adopted by ordinance the annual village budget for the year beginning May 1, 1975, and ending April 30, 1976. That ordinance reflected the prior salary level at $1,500 per year through April 30, 1975, followed by the increase to $2,500 effective May 1, 1975. (Bridgeview, Ill., Code of Ordinances, Ordinance 75-17 (1975).) The Board then adjourned sine die, after which the meeting was reconvened and newly elected officials were sworn into office.

It further appears that on April 17, 1979, Oremus was re-elected village president, Slaninka was re-elected trustee, and Malinowski and Burrow were newly-elected trustees. On April 26, 1979, the Board adopted Ordinance 79-14, which increased the salaries of the village president and liquor control commissioner to $3,500 each per year and the compensation of trustees taking office after May 1, 1979, from $75 to $100 per meeting, and further provided that the specified increases were to become "effective commencing with the next term of office of the Village President and the Village Trustees." (Bridgeview, Ill., Code of Ordinances, Ordinance 79-14 (1979).) That same day, the Board also adopted Ordinance No. 79-15, which was the annual village budget for the year commencing May 1, 1979, and ending April 30, 1980. (Bridgeview, Ill., Code of Ordinances, Ordinance 79-15 (1979).) The officials elected on April 17, 1979, were sworn in at the board meeting on May 3, 1979.

Alleging that the 1975 and 1979 salary increases were void because they were enacted after the elections, in violation of State law (Ill. Const. 1970, art. VII, § 9(b); Ill. Rev. Stat. 1975, ch. 24, par. 3-13-1; Ill. Rev. Stat. 1979, ch. 24, par. 3-13-1), plaintiff sought an accounting of the money paid to defendants, an order directing defendants to repay the amount owed the village, an injunction barring defendants from receiving any salary increases based on ordinances adopted after election to their respective offices, and attorney fees. On August 21, 1980, the trial court dismissed counts I and II with prejudice and struck count III with leave to amend. On December 2, 1980, following plaintiff's motion to vacate, the trial court ordered that counts I and II be dismissed with prejudice and that plaintiff receive the salary appropriate for village collector, pro rata from the date she assumed office until May 10, 1979, when the duties of collector were assigned to the village treasurer, and it denied defendants' motion to dismiss count III. On April 14, 1981, following motions for summary judgment by both parties as to count III, the trial court entered an order, inter alia, allowing the 1975 salary increases to stand; declaring the 1979 salary increases void as they pertained to village officials elected in April 1979; granting prospective relief only; reserving the question of attorney fees; and staying the order pending appeal.

From the orders of December 2, 1980, and April 14, 1981, the parties appeal.

OPINION

We first consider plaintiff's contention that the trial court erred in dismissing counts I and II of her amended complaint. Plaintiff argues that under the facts alleged, she is entitled to the position of village collector by virtue of being elected village clerk in accordance with Dumke v. Anderson (1976), 44 Ill. App.3d 626, 358 N.E.2d 344. We believe, however, that plaintiff cannot rely on the holding of Dumke to state a cause of action under counts I and II, since the facts in Dumke are distinguishable.

In Dumke, a village president and village clerk brought an action to prevent the abolition, by ordinance, of the office of village collector or the reduction of its salary. The clerk had been re-elected in April 1973 to a 4-year term ending April 30, 1977. The clerk also held the office of collector under an ordinance which provided:

"`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.'" (44 Ill. App.3d 626, 628, 358 N.E.2d 344, 346-47.)

Midway through the term of the purported clerk-collector, the village board sought to reduce the salary of the collector from $18,120 per year to $1 per year and instructed the village attorney to prepare an ordinance abolishing the office of collector effective at the end of fiscal year 1975, more than two years before the expiration of his term. In finding that the office of collector could not, under those facts, be abolished or its salary reduced, the court held that sections 3-8-3 and 3-13-11 of the Illinois Municipal Code (Ill. Rev. Stat. 1971, ch 24, pars. 3-8-3, 3-13-11) did not permit the offices of clerk and collector to be combined but rather that one person could hold both the elective office of clerk and the appointive office of collector. Focusing upon the nature of the appointing power under section 3-8-3 of chapter 24, the court further stated that such power had been placed in the hands of the electorate under the ordinance in question, and thus, when the electorate cast their votes for the office of clerk, they also decided who was to be collector for the 4-year term. Accordingly, the clerk's and the collector's terms of office were co-extensive. We are of the view, therefore, that Dumke stands for the proposition that where the choice of collector is entrusted by ordinance to the electorate through their choice for clerk, the office of collector may not be abolished or its salary reduced during the term of the incumbent clerk.

In the present case, by contrast, the appointing power is not reserved to the electorate. Section 1-7-10 of the Code of Ordinances (Bridgeview, Ill., Code of Ordinances, section 1-7-10 (1979)) provides:

"EX-OFFICIO COLLECTOR: The Clerk shall act as and perform all duties of collector unless and until a ...


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