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09/16/97 VILLAGE WAUCONDA v. GEORGE N. HUTTON IV

September 16, 1997

THE VILLAGE OF WAUCONDA, PLAINTIFF-APPELLANT,
v.
GEORGE N. HUTTON IV, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Lake County. No. 96--CV--779. Honorable Donald H. Geiger, Judge, Presiding.

Released for Publication October 17, 1997.

The Honorable Justice Bowman delivered the opinion of the court. McLAREN and Doyle, JJ., concur.

The opinion of the court was delivered by: Bowman

The Honorable Justice BOWMAN delivered the opinion of the court:

Plaintiff, the Village of Wauconda, charged defendant, George N. Hutton IV, with operating a windsurfer (sailboard) without a personal flotation device (Village of Wauconda Code § 8--8--31(C) (amended May 21, 1996)). Defendant orally moved to dismiss, arguing that plaintiff's ordinance was inconsistent with state statutes regulating the use of personal flotation devices (PFDs). Plaintiff filed a written response. Following a bench trial, the court granted judgment for defendant, finding that the ordinance was inconsistent with and preempted by state law. Plaintiff appeals, and we affirm.

At the bench trial, the parties stipulated to the following facts. On August 14, 1996, defendant was operating a sailboard on Bangs Lake in Wauconda and was not wearing a PFD. Section 8--8--31(C) of the Village of Wauconda Code requires that people use PFDs when operating sailboards:

"All personal watercraft, specialty prop-craft, water bikes, wind surfers or other similar watercraft that due to their nature could incapacitate the operator will be required to properly wear a Type I, Type II, or Type III personal flotation device in good serviceable condition." Village of Wauconda Code § 8--8--31(C) (amended May 21, 1996).

Section 4--1 of the Boat Registration and Safety Act (Act) (625 ILCS 45/4--1 (West 1996)) sets forth the state regulations for the use of PFDs, but provides in subsection H that "the provisions of subsections A through G of this Section shall not apply to sailboards" (625 ILCS 45/4--1(H) (West 1996)). The court found that section 8--8--31(C) of plaintiff's ordinance was inconsistent with and preempted by section 4--1(H).

We note that defendant has failed to file a brief. However, we find that the record is simple and the claimed error is such that we can decide the issue without the aid of an appellee's brief. See First Capitol Mortgage Corp. v. Talandis Construction Corp., 63 Ill. 2d 128, 133, 345 N.E.2d 493 (1976).

On appeal, Plaintiff argues that its ordinance is not inconsistent with state law, but rather regulates in an area that the state left open. We disagree. Plaintiff is a non-home-rule unit and therefore is governed by Dillon's Rule, which provides that non-home-rule units may regulate in a field occupied by state legislation when the constitution or a statute specifically conveys such authority. T&S Signs, Inc. v. Village of Wadsworth, 261 Ill. App. 3d 1080, 1090, 199 Ill. Dec. 467, 634 N.E.2d 306 (1994).

The authority for plaintiff to regulate in the this area is provided in section 8--1 of the Act (625 ILCS 45/8--1 (West 1996)), which provides as follows:

"The provisions of this Act, and of other applicable laws of this State shall govern the operation, equipment, numbering and all other matters relating thereto whenever any vessel shall be operated on the waters of this State, or when any activity regulated by this Act shall take place thereon; but nothing in this Act shall be construed to prevent the adoption of any ordinance or local law by any political subdivision of the State relating to operation and equipment of vessels the provisions of which are not inconsistent with the provisions of this Act, amendments thereto or regulations issued thereunder: Provided, that such ordinances or local laws shall be operative only so long as and to the extent that they continue to be not inconsistent with the provisions of this Act, amendments thereto or regulations issued thereunder."

The relevant inquiry, then, is whether section 8--8--31(C) of plaintiff's ordinance is inconsistent with section 4--1(H) of the Act. While non-home-rule municipalities have the authority to enact ordinances, such ordinances may in no event conflict with state law or prohibit what a state statute expressly permits. McCauley v. City of Rockford, 207 Ill. App. 3d 244, 248, 152 Ill. Dec. 196, 565 N.E.2d 729 (1990). A local ordinance may impose more rigorous or definite regulations in addition to those enacted by the state legislature so long as they do not conflict with the statute. Young v. Village of Glen Ellyn, 120 Ill. App. 3d 692, 696, 76 Ill. Dec. 483, 458 N.E.2d 1137 (1983). The exercise of police power by a municipality must be in harmony with any state law relating to the same subject. Bank of Waukegan v. Village of Vernon Hills, 254 Ill. App. 3d 24, 29, 193 Ill. Dec. 212, 626 N.E.2d 245 (1993). Municipalities may exercise police power concurrently with the state, and police regulations may differ from those of the state on the same subject, if they are not inconsistent with the state statutes. Village of Mundelein v. Hartnett, 117 Ill. App. 3d 1011, 1015, 73 Ill. Dec. 285, 454 N.E.2d 29 (1983).

Our research did not disclose any cases expressly defining "inconsistent" in this regard. However, in interpreting a statute, the primary rule of construction is to ascertain and give effect to the true intent and meaning of the legislature. Kraft, Inc. v. Edgar, 138 Ill. 2d 178, 189, 149 Ill. Dec. 286, 561 N.E.2d 656 (1990). Courts should look to the language of the statute as the best indication of legislative intent, giving the statutory terms their ordinary meaning. In re Application for Judgment & Sale of Delinquent Properties for the Tax Year 1989, 167 Ill. 2d 161, 168, 212 Ill. Dec. 215, 656 N.E.2d 1049 (1995). Where the meaning of the statute is unclear from the language itself, a ...


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