Stryker v. Village of Oak Park

• Decision Date: 26 January 1976
• Docket Number: No. 47635,47635
• Citation: 343 N.E.2d 919,62 Ill.2d 523
• Parties: James STRYKER et al., Appellants, v. The VILLAGE OF OAK PARK et al., Appellees.
• Court: Illinois Supreme Court

Page 919

343 N.E.2d 919

62 Ill.2d 523

James STRYKER et al., Appellants, v. The VILLAGE OF OAK PARK et al., Appellees.

No. 47635.

Supreme Court of Illinois.

Jan. 26, 1976.

Rehearing Denied March 25, 1976.

Stanley H. Jakala, Berwyn, for appellants.

Arthur C. Thorpe, of Klein, Thorpe, Kasson & Jenkins, Chicago, for appellees.

GOLDENHERSH, Justice.

Plaintiffs, James Stryker and Walter Woitovich, police officers of the Village of Oak Park, filed this action in the circuit court of Cook County against defendants, the Village of Oak Park and its Board of Fire and Police Commissioners, seeking a declaratory judgment that certain ordinances of the defendant village were invalid, and for other relief. The circuit court allowed defendants' motion for judgment on the pleadings and dismissed the cause with prejudice. Plaintiffs appealed. We allowed their motion filed pursuant to Rule 302(b) that the appeal be taken directly to this court.

Prior to April 1974, the defendant Village of Oak Park (hereafter defendant), in accordance with the provisions of division 2.1 of article 10 of the Municipal Code (Ill.Rev.Stat.1973, ch. 24, par. 10--2.1--1 Et seq.), had created a Board of Fire and Police Commissioners. On April 15, 1974, the Board of Trustees of the defendant amended chapter 36 of the Village Code to provide:

'Sec. 36.1 Composition; Office of Policeman Created; Residency.

The Police Department of the Village of Oak Park is hereby created and established. It shall consist of a chief of police, three (3) deputy chiefs of police and such other officers and personnel as shall be determined by the President and Board of Trustees in the annual Appropriation Ordinance. The position of captain in the Police Department is eliminated effective at such time as the incumbents, cumbents, as of January 1, 1974, no longer hold that position.

Police officers appointed after October 1, 1973, shall not be required to comply with the residency requirements of Article 3--14--1 of the Illinois Municipal Code during the probationary period of one year plus an additional six months. Said police officers must become residents of the Village of Oak Park within said 18 month period.'

'Sec. 36.8 Appointment and Suspension of Members by Board of Fire and Police Commissioners.

The Village Manager is authorized to appoint, suspend or discharge the chief of police and the three deputy chiefs of police. The power of appointment, discharge or suspension of all other officers of the police department shall be in the board of fire and police commissioners of the village, heretofore created and now acting pursuant to the provisions of the Illinois Municipal Code. In the event the Village Manager discharges the chief of police or a deputy chief of police, said officers shall revert to their permanent ranks, if any, in the police department as established under the Fire and Police Commission Act. A deputy chief of police shall be appointed solely from the officers of the Oak Park Police Department.'

On October 15, 1974, article 16 of chapter 2 of the Village Code was amended to provide:

'Section 2.110--Adoption of State Code.

Division 2.1 of Article 10 of Chapter 24 of the Illinois Revised Statutes, entitled Board of Fire and Police Commissioners, is adopted by reference, provided that Section 10--2.1--3 of said State Act is not adopted and further provided the provisions of Section 36.8 of this Code shall supersede the provisions of said State Act.

Section 2.111--Qualifications--Oath.

The members of the Board of Fire and Police Commissioners must be residents of the Village of Oak Park and will be considered officers of the Village. The members of the Board of Fire and Police Commissioners shall file an oath of office with the Village Clerk.

No person may serve on the Board of Fire and Police Commissioners who is an officer or precinct captain of any established political party, as defined in the Election Code. No person shall be appointed as a member of the Board of Fire and Police Commissioners who is related, either by blood or marriage, up to the degree of first cousin to any elected official of the Village of Oak Park. This section shall supersede Sec. 10--2.1--3 of said State Act.'

Section 10--2.1--3 of the Municipal Code, to which the ordinance referred, enumerated qualifications for a member of the Board of Fire and Police Commissioners similar to those in section 2.111 of defendantant's ordinance and in addition provided:

'The members of the board * * * shall file * * * a fidelity bond in such amount as may be required by the governing body of the municipality.

No person holding a lucrative office under the United States, this state or any political subdivision thereof, or a municipality, shall be a member of the board of fire and police commissioners or the Secretary thereof. * * * No more than 2 members of the board shall belong to the same political party existing in such municipality at the time of such appointments * * *.'

Plaintiffs contended in the circuit court, and on appeal, that defendant was not empowered to enact ordinances that were in conflict with section 10--2.1--4 of the Municipal Code, which concerns appointment and certification of officers and members of fire and police departments. Citing Bovinette v. City of Mascoutah, 55 Ill.2d 129, 302 N.E.2d 313, they contend further that a police chief may be discharged only in the manner provided in section 10--2.1--17 of the Municipal Code. Citing Cummings v. Daley, 58 Ill.2d 1, 317 N.E.2d 22, plaintiffs contend that in altering the composition of the Board of Fire and Police Commissioners, defendant attempted an impermissible 'attack upon proper administrative review which administrative review cannot be affected by home rule power.' Finally, citing City of Chicago v. Pollution Control Board, 59 Ill.2d 484, 322 N.E.2d 11, plaintiffs contend that the ordinances were invalid for the reason that they must, but did not, conform with the minimum standards established by the General Assembly.

It is defendant's position that as a home rule unit it was empowered to enact the challenged ordinances.

Section 6(a) of article VII of the Constitution of 1970 provides:

'(a) * * * Except as limited by this Section, a home rule unit may exercise any power and perform any function pertaining to its government and affairs * * *.'

Since the adoption of the Constitution of 1970 this court has consistently held that an ordinance enacted by a home rule unit under the grant of power found in section 6(a) supersedes a conflicting statute enacted prior to the effective date of the Constitution. (Paglini v. Police Board, 61 Ill.2d 233, 335 N.E.2d 480; Peters v. City of Springfield, 57 Ill.2d 142, 311 N.E.2d 107; People ex rel. Hanrahan v. Beck, 54 Ill.2d 561, 301 N.E.2d 281; Kanellos v. County of Cook, 53 Ill.2d 161, 290 N.E.2d 240.) Under the rationale of those cases we hold that under section 6(a) of article VII defendant was empowered to enact the ordinances.

We consider next the contention that the ordinances failed to conform with minimum statewide standards established by the General Assembly. Plaintiffs argue that providing 'the best possible police protection' is a matter of statewide concern. Although not articulated in precisely that manner we construe plaintiffs' argument to be that because division 2.1 of article 10 of the Municipal Code is a statute encompassing a matter of statewide interest, section 6(i) of article VII of the 1970 Constitution required that any concurrent action taken by defendant be consistent with its provisions, notwithstanding that the statute was enacted prior to the effective date of the Constitution. They analogize the statutory scheme contained in division 2.1 of article 10 of the Municipal Code with the Environmental Protection Act (Ill.Rev.Stat.1973, ch. 111 1/2, par. 1001 Et seq.) and argue that 'guaranteeing each Illinois citizen the best possible police protection is as vital as guaranteeing that same citizen the best possible protection against pollution.'

Plaintiffs' contention that the statutory scheme either contemplated or provided for statewide uniformity is refuted by the fact that division 1 of article 10 of the Municipal Code (Civil Service in Cities, ch. 24, par. 10--1--17) permits the exemption from classified service, Inter alia, of the chief of police and 'police officers above the grade of captain.' Also the qualifications for the office of civil service commissioner (ch. 24, par. 10--1--1) are not the same as those required for the office of fire and police commissioner (ch. 24, par. 10--2.1--3). Obviously the statutes did not establish a uniform plan which governed statewide the matters with which the challenged ordinances were concerned.

In further support of their position plaintiffs point out that sections 10--2.1--5, 10--2.1--6 and 10--2.1--8 of the Municipal Code have been amended since the effective date of the Constitution and that each now contains the following:

'This Amendatory Act of 1973 does not apply to any municipality which is a home rule unit.'

Plaintiffs argue that the absence of that provision from section 10-2.1--4 and 10--2.1--17 shows that the General Assembly 'does not intend to provide home rule units with the power to modify those sections * * *.' We do not agree. A statute intended to limit or deny home rule powers must contain an express statement to that effect. Rozner v. Korshak, 55 Ill.2d 430, 303 N.E.2d 389.

Concerning plaintiffs' other contentions it suffices to state that Bovinette v. City of Mascoutah, 55 Ill.2d 129, 302 N.E.2d 313, presented no issue of the power of a home rule unit and that the changes effected by the amendments created no question similar to that presented in Cummings v. Daley, 58 Ill.2d 1, 317 N.E.2d 22.

For the reasons stated the judgment is affirmed.

Judgment affirmed.

CREBS, J., took no part in the consideration or decision of this case.

RYAN, J., dissenting....