City of Evanston v. Create, Inc.

• Decision Date: 17 April 1981
• Docket Number: No. 53723,53723
• Citation: 51 Ill.Dec. 688,85 Ill.2d 101,421 N.E.2d 196
• Parties: , 51 Ill.Dec. 688 The CITY OF EVANSTON, Appellee, v. CREATE, INC., Appellant.
• Court: Illinois Supreme Court

Page 196

421 N.E.2d 196

85 Ill.2d 101, 51 Ill.Dec. 688

The CITY OF EVANSTON, Appellee, v. CREATE, INC., Appellant.

No. 53723.

Supreme Court of Illinois.

April 17, 1981.

Rehearing Denied June 4, 1981.

Samuel W. Witwer, J. Alfred Moran and Samuel W. Witwer, Jr., of Witwer, Moran, Burlage & Atkinson, Chicago (Donald W. Kahn, Skokie, of counsel), for appellant.

Jack M. Siegel, Corp. Counsel, City of Evanston, Chicago, for appellee.

THOMAS J. MORAN, Justice.

Plaintiff, the city of Evanston (City), filed a complaint in the circuit court of Cook County seeking declaratory and injunctive relief against Create, Inc. (defendant), a real estate broker and management firm, for its violation of Evanston's Residential Landlord and Tenant Ordinance (Ordinance). Defendant moved to dismiss the action claiming that the Ordinance was an invalid exercise of home rule power under article VII, section 6(a), of the Illinois Constitution of 1970 (Ill.Const.1970, art. VII, sec. 6(a)). The circuit court granted summary judgment in favor of the City and issued a writ of injunction against further violations of the Ordinance by the defendant. On appeal, the appellate court affirmed. (84 Ill.App.3d 752, 40 Ill.Dec. 258, 405 N.E.2d 1350.) We allowed defendant's petition for leave to appeal.

This case presents one question: Is an ordinance of a home rule unit of government valid if it imposes certain conditions upon a rental lease agreement negotiated between a landlord and tenant? Defendant claims that "An Act to revise the law in relation to landlord and tenant" (Ill.Rev.Stat.1979, ch. 80, par. 1 et seq.), passed by the General Assembly, prevents a home rule unit from legislating in the area of landlord-tenant relations. It argues that this area is one of far-reaching statewide interest which requires exclusive State control. Defendant also asserts that the Ordinance impermissibly interferes with the rights of private parties to contract, places a burden on the administration of justice, and has extraterritorial effect.

The goals sought to be achieved by the City in enacting the Ordinance are expressed in section 231/2 1.102, where it states:

"It is the purpose of this Ordinance and the policy of the City of Evanston, in order to protect and promote the public health, safety and welfare of the citizens in the City, to establish rights and obligations of the landlord and the tenant in the rental of dwelling units and to encourage the landlord and the tenant to maintain and improve the quality of housing."

In its complaint, the City specifies certain provisions of the Ordinance which were violated by defendant's lease agreement:

1. The lease did not have attached, as required, a copy of the Evanston Residential Landlord and Tenant Ordinance. (Sec. 231/2 5.103.)

2. Upon the giving of a general notice, the lease allows the landlord access to a tenant's apartment within the last two months of a tenancy upon 15 minutes' notice; otherwise, upon a 24-hour notice. (The Ordinance requires the landlord to "give the tenant at least two days notice of his intent to enter." (Sec. 231/2 2.103.)

3. The lease excuses the landlord from mitigating his damages in the event of abandonment or subletting by the tenant. (The Ordinance requires that the landlord "make a good faith effort to rent it at a fair rental." Sec. 231/2 4.103.)

4. The lease allows the landlord the right to terminate the tenancy upon giving a 30-day notice. This right is not dependent upon any breach of the lease by the tenant. The landlord is not required to notify the tenant of his lack of intent to renew the lease before the end of its term. (The Ordinance requires that, upon a material breach of the lease by the tenant, the landlord must give the tenant a 45-day notice, in writing, of his intent to terminate the lease. The Ordinance also requires the landlord to send a written notice to the tenant 30 days prior to the expiration of the term of the lease of his intent not to renew the lease.

5. The lease provides for treble damages to the landlord in the event of a holdover tenancy. (The Ordinance provides that in case of holdover a landlord may bring an action for possession and, if the tenant's holdover is wilful, the landlord may recover either two months' rent or twice actual damages, whichever is greater. Sec. 231/2 4.301.)

6. The lease provides that the landlord may, upon five days' notice to the tenant, pursue remedies for nonpayment of rent. (The Ordinance requires a 10-day notice in such situations. Sec. 231/2 4.101.)

7. The lease provides for various tenant's damages upon breach by the landlord which are not in conformity with sections 231/2 4.203, 4.201 and 4.204 of the Ordinance. (These sections allow the tenant to recover attorney's fees if the landlord's breach is wilful; specifies various procedures for termination of the lease; allows the tenant to correct minor defects or to withhold rent upon the landlord's failure to correct minor defects; and provides for reduction of monthly rent to compensate for code violations or for wrongful failure to supply essential services such as heat, water, electricity, gas, or plumbing.)

Section 6 of article VII of the 1970 Illinois Constitution creates a new concept with respect to the powers of local governmental units that are generally referred to as "home rule" powers. In introducing the report of the Local Government Committee to the delegates of the sixth Illinois constitutional convention, Delegate Parkhurst stated:

"(W)e've got a history in the state of Illinois that goes back 100 years, as we all know, which was described yesterday as Dillon's Rule, and Dillon's Rule says that whenever you've got any kind of a problem between whether a local governmental entity has power or not, you resolve it in favor of the state; and you only have those express powers that are given by statute * * *." (4 Record of Proceedings, Sixth Illinois Constitutional Convention 3034 (hereinafter Proceedings).)

"So the first thing we tried to do in our report is to reverse that psychology and that legal philosophy which has pervaded our state and others for, lo, these many years. So we did come to grips with Dillon's Rule and we did try to turn it around 180 degrees." 4 Proceedings 3024.

Similarly, this court has recognized that "(t)he concept of home rule adopted under the provisions of the 1970 constitution was designed to drastically alter the relationship which previously existed between the local and State government." (Kanellos v. County of Cook (1972), 53 Ill.2d 161, 166, 290 Ill.Dec. 240.) Thus, the basic grant of home rule power embodied in section 6(a) of article VII is broad and imprecise in order to allow for great flexibility:

"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." (Ill.Const.1970, art. VII, sec. 6(a).)

To further emphasize the grant of broad home rule powers, section 6(m) of article VII mandates:

"Powers and functions of home rule units shall be construed liberally." (Ill.Const.1970, art. VII, sec. 6(m).)

Recognizing the necessity for legislative control of certain subjects, the delegates enacted sections 6(g) and 6(h) of article VII. Section 6(g) provides a mode by which the legislature may, by a three-fifths majority vote, deny or limit home rule powers. Under section 6(h), the legislature may "provide specifically by law for the exclusive exercise by the State of any power or function of a home rule unit." (Ill.Const.1970, art. VII, secs. 6(g), 6(h).) The enactment of a statute after the effective date of the 1970 Constitution does not automatically render the area one of exclusive control by the State under section 6(h) or deny home rule units the power to act under section 6(g). The statute must contain an express statement to that effect. (Stryker v. Village of Oak Park (1976), 62 Ill.2d 523, 528, 343 N.E.2d 919; e. g., see section 2.1 of the Illinois Insurance Code (Ill.Rev.Stat.1979, ch. 73, par. 614.1).) In the absence of such express legislation, section 6(i) of article VII states:

"Home rule units may exercise and perform concurrently with the State any power or function of a home rule unit * * *." Ill.Const.1970, art. VII, sec. 6(i).

Defendant's first contention is that "An Act to revise the law in relation to landlord and tenant" (Ill.Rev.Stat.1979, ch. 80, par. 1 et seq.) is a comprehensive statutory plan that implies a statewide interest which necessarily prevents the home rule unit from adopting conflicting enactments.

We have consistently found that an ordinance enacted by a home rule unit pursuant to article VII, section 6(a), of the Constitution of 1970 supersedes a conflicting statute enacted prior to the effective date of the Constitution. (County of Cook v. John Sexton Contractors Co. (1979), 75 Ill.2d 494, 513, 27 Ill.Dec. 489, 389 N.E.2d 553; Town of Cicero v. Fox Valley Trotting Club, Inc. (1976), 65 Ill.2d 10, 18, 2 Ill.Dec. 675, 357 N.E.2d 1118; Stryker v. Village of Oak Park (1976), 62 Ill.2d 523, 527, 343 N.E.2d 919; Paglini v. Police Board (1975), 61 Ill.2d 233, 235, 335 N.E.2d 480; Mulligan v. Dunne (1975), 61 Ill.2d 544, 550, 338 N.E.2d 6; Peters v. City of Springfield (1974), 57 Ill.2d 142, 147, 311 N.E.2d 107; Clarke v. Village of Arlington Heights (1974), 57 Ill.2d 50, 53-54, 309 N.E.2d 576; People ex rel. Hanrahan v. Beck (1973), 54 Ill.2d 561, 565-66, 301 N.E.2d 281; Kanellos v. County of Cook (1972), 53 Ill.2d 161, 166-67, 290 N.E.2d 240.) "An Act to revise the law in relation to landlord and tenant" was enacted in 1873. Although minor revisions to various sections have taken place both before and after the effective date of the 1970 Constitution (July 1, 1971), we have found no action to have been...