Appeal from the Circuit Court of Cook County; the Hon. James
C. Murray, Judge, presiding.
JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:
The board of trustees of the village of Rosemont filed a declaratory judgment action seeking, among other things, a declaration that the Director of the Department of Insurance erred in ordering the board to establish a firemen's pension fund under article 4 of the Illinois Pension Code (Ill. Rev. Stat. 1975, ch. 108 1/2, par. 4-101 et seq.).
A bench trial was held, and the court (a) entered judgment in favor of the Director, and (b) ordered the Rosemont board to establish an article 4 firemen's pension fund. We reverse and remand for the reasons set forth below. But first, a brief statement of the material facts will aid in understanding the legal issues presented by the Board's appeal.
On April 1, 1975, the village of Rosemont — a home rule unit of government under article 7, section 6(a) of the 1970 Illinois Constitution — held a referendum in which the municipal electorate exercised its statutorily granted authority to adopt articles 3 and 4 of the Pension Code. (See Ill. Rev. Stat. 1975, ch. 108 1/2, pars. 3-145, 4-141.) By virtue of section 4-101 of article 4, a "municipality as defined in Section 4-103" is required to establish a pension fund for the benefit of "firemen as defined in Section 4-106." Article 3, in contrast, pertains to police pension funds. Ill. Rev. Stat. 1975, ch. 108 1/2, par. 3-101.
On April 5, 1975 — four days after the village voters adopted article 4 — the Rosemont board of trustees enacted an ordinance which stated that it was abolishing the Rosemont fire department and transferring the employees of the abolished department to the Fire Section of a newly created Rosemont Public Safety Service. (Rosemont Ordinance 75-4-5A.) This was followed by an ordinance enacted on September 17, 1975, in which the board of trustees created a unified Public Safety Department consisting of all the Rosemont police officers, the employees of the abolished fire department, and the village's other public safety employees. (Rosemont Ordinance 75-9-17.) The new department includes detective, patrol, fire suppression, and paramedic sections, and all the department's employees are designated as public safety officers. (Rosemont Ordinance 75-9-17.) The September 17 ordinance expressly contemplates that each of the public safety officers will "serve several public safety functions." So, for example, the ordinance gives the new department the power to transfer public safety officers from one section to another, and all the department employees are given the job duties of enforcing the law (including making arrests) and extinguishing fires.
Under an amendment to article 4, effective October 1, 1975, the General Assembly (a) precluded home rule units of government from altering or amending the provisions of article 4 of the Pension Code, and (b) provided that a home rule unit which constitutes a "municipality, as defined in Section 4-103" of the Pension Code, is prohibited from providing a pension program for "firemen" other than through a fund which complies with the provisions of article 4. "An Act to add Sections 3-150 and 4-142 to the `Illinois Pension Code' * * *," Pub. Act 79-988 (codified, in pertinent part, at Ill. Rev. Stat. 1975, ch. 108 1/2, par. 4-142).
The Rosemont board of trustees eventually established a police pension fund under article 3 of the Pension Code. This fund covers all the employees of the Public Safety Department, and the board has not established a separate firemen's pension fund under article 4.
The Director of the Department of Insurance appointed a hearing officer to determine whether Rosemont violated the provisions of the Pension Code. The hearing officer concluded that the Rosemont board of trustees was obligated to establish both a police officer's pension fund and a firemen's pension fund because, by referendum, Rosemont had adopted both articles 3 and 4 of the Pension Code. The Director of the Department of Insurance followed the hearing officer's recommendation and ordered the board of trustees to establish an article 4 pension fund in addition to the already established article 3 fund. See Ill. Rev. Stat. 1977, ch. 108 1/2, par. 22-509.
In response, the board of trustees filed a declaratory judgment action which challenged the Director's order on the grounds that the board's home rule powers under the 1970 Constitution (Ill. Const. 1970, art. 7, sec. 6(a)) empowered it to supersede the pension law which had been adopted by referendum. The board also argued that the Director did not have authority to appoint a hearing officer to conduct a hearing on whether it had violated the provisions of the Pension Code.
The trial court viewed the controlling issue as being whether the board of trustees unlawfully thwarted the results of the April 1, 1975, municipal referendum. And, despite the fact that Rosemont is a home rule unit of local government, the trial court concluded that the board of trustees unlawfully defeated the will of its electorate by attempting to avoid application of a law which was adopted by municipal referendum.
Before the enactment of the 1970 Illinois Constitution, the powers of units of local government were limited to what was specifically authorized by the General Assembly or the 1870 Constitution. (Ill. Ann. Stat., 1970 Const., art. 7, sec. 6, Constitutional Commentary, at 22 (Smith-Hurd 1971).) The 1970 Illinois Constitution "drastically alter[ed] the relationship which previously existed between local and State government" (Kanellos v. County of Cook (1972), 53 Ill.2d 161, 166, 290 N.E.2d 240, 243) by providing that "[e]xcept as limited by this Section, a home rule unit may exercise any power and perform any function pertaining to its government and affairs * * *." Ill. Const. 1970, art. 7, sec. 6(a).
In matters concerning their government and affairs, "Home rule units * * * have the same powers as the sovereign except where such powers are limited by the General Assembly" (City of Urbana v. Houser (1977), 67 Ill.2d 268, 273, 367 N.E.2d 692, 694) or by section 6 itself (e.g., Ill. Const. 1970, art. 7, secs. 6(d), (e)). Accordingly, an ordinance enacted by a home rule unit supersedes a conflicting statute which was enacted before the effective date of the 1970 Constitution. (County of Cook v. John Sexton Contractors Co. (1979), 75 Ill.2d 494, 513, 389 N.E.2d 553, 559; Paglini v. Police Board (1975), 61 Ill.2d 233, 235, 335 N.E.2d 480, 482.) Furthermore, a statute enacted after the effective date of the 1970 Constitution does not restrict the home rule power unless it falls within one of the article 7, section 6 preemption provisions. See, e.g., Ill. Const. 1970, art. 7, secs. 6(g), (h), and (i); see also Stryker v. Village of Oak Park (1976), 62 Ill.2d 523, 528, 343 N.E.2d 919, 923 ("A statute intended to limit or deny home rule powers must contain an express statement to that effect").
In the present case, the board of trustees argues that the municipal referendum which adopted article 4 of the Pension Code was superseded by the inconsistent home rule ordinances which it enacted after the April 1975 referendum, but before October 1, 1975, when Public Act 79-988 (codified, in ...