Illinois Municipal Retirement Fund v. City of Barry

• Decision Date: 26 September 1977
• Docket Number: No. 14425,14425
• Citation: 367 N.E.2d 1048,10 Ill.Dec. 439,52 Ill.App.3d 644
• Parties: , 10 Ill.Dec. 439 ILLINOIS MUNICIPAL RETIREMENT FUND and its Board of Trustees, Plaintiff-Appellee, v. CITY OF BARRY, a Municipal Corporation, and Ben E. Harris, William K. Bainter, Jr., M. Steven Conkright, P. Lloyd Harms, Individually and as representatives of a class, Defendants-Appellants.
• Court: United States Appellate Court of Illinois

Page 1048

367 N.E.2d 1048

52 Ill.App.3d 644, 10 Ill.Dec. 439

ILLINOIS MUNICIPAL RETIREMENT FUND and its Board of Trustees, Plaintiff-Appellee, v. CITY OF BARRY, a Municipal Corporation, and Ben E. Harris William K. Bainter, Jr., M. Steven Conkright, P Lloyd Harms, Individually and as representatives of a class Defendants-Appellants.

No. 14425.

Appellate Court of Illinois, Fourth District.

Sept. 26, 1977.

Gary L. Haddock, Pittsfield, for defendants-appellants.

John J. Edman, Chicago, for plaintiff-appellee.

CRAVEN, Presiding Justice.

This is an appeal from a declaratory judgment action in which the plaintiff, Illinois Municipal Retirement Fund (the Fund), received a judgment upholding its position that the defendant, City of Barry, had taken all the necessary steps and was, consequently, a participant in the Fund.

Under section 7-132 of the Pension Code (Ill.Rev.Stat.1975, ch. 1081/2, par. 7-132), towns under 5,000 in population which are not controlled by town electors (Barry has a mayor-aldermanic government) are not automatically required to join the Fund, but may elect "to be included either by referendum * * * or by the adoption of a resolution or ordinance by its governing body. A copy of such resolution or ordinance duly authenticated and certified by the clerk of the municipality or other appropriate official of its governing body shall constitute the required notice to the board of such action." Ill.Rev.Stat.1975, ch. 1081/2, par. 7-132(a)4.

On September 9, 1975, the city council of Barry passed an ordinance (No. 1975-3) electing to participate in the Fund. The city clerk then certified the ordinance and sent it to plaintiff's offices where it was filed on September 19, 1975.

On January 3, 1976, the city council of Barry changed its position with respect to participation in the Fund and passed an ordinance purporting to rescind ordinance No. 1975-3. The mayor of Barry then notified the Fund by letter dated January 19, 1976, that the city had revoked its participation in the Fund. This action precipitated the controversy and led plaintiff to file a complaint for declaratory judgment to determine whether the city of Barry could, by such action, remove itself from participation in the Fund. The trial court heard arguments on plaintiff's motion for summary judgment and then denied it. Then, under a stipulation by the parties, the court decided the case based on the arguments of counsel, written briefs, and affidavits. On March 16, 1977, the trial court filed a written order finding that the city had taken the necessary action to participate in the Fund and was without power to subsequently withdraw.

In a case quite analogous to the present one, the Illinois Supreme Court held that the city of Chester was without power to withdraw from the Fund by enacting a rescinding ordinance. (People ex rel. Schuwerk v. Illinois Municipal Retirement Fund (1955), 6 Ill.2d 405, 128 N.E.2d 923.) The Schuwerk opinion emphasized that since the statute provided no means for withdrawal, none could be implied. Here, the city conceded that Schuwerk forecloses withdrawal. The city takes a position that since the ordinance electing to participate in the Fund was not published, it was invalid. This argument hinges on the applicability of section 1-2-4 of the Illinois Municipal Code (Ill.Rev.Stat.1975, ch. 24, par. 1-2-4) which requires to be published:

"All ordinances of cities, villages and incorporated towns imposing any fine, penalty, imprisonment, or forfeiture, or making any appropriation * * * .

All other ordinances, resolutions and motions, shall take effect upon their passage unless they otherwise provide."

Simply put, the issue is whether an ordinance electing to participate in the Fund requires publication, under the above statute, as making an appropriation. We agree with the trial court that it does not.

An...