Winokur v. Rosewell

• Decision Date: 01 December 1980
• Docket Number: No. 52862,52862
• Parties: , 46 Ill.Dec. 671 Marshall E. WINOKUR, Appellant, v. Edward J. ROSEWELL, County Treasurer et al., Appellees. Jerome HUPPERT, Appellant, v. George W. DUNNE et al., Appellees. Carl R. HANSEN et al., Appellants, v. George W. DUNNE, Appellee.
• Court: Illinois Supreme Court

Page 724

414 N.E.2d 724

83 Ill.2d 92, 46 Ill.Dec. 671

Marshall E. WINOKUR, Appellant, v. Edward J. ROSEWELL, County Treasurer et al., Appellees.

Jerome HUPPERT, Appellant, v. George W. DUNNE et al., Appellees.

Carl R. HANSEN et al., Appellants, v. George W. DUNNE, Appellee.

No. 52862.

Supreme Court of Illinois.

Dec. 1, 1980.

Bernard Carey, State's Atty. of Cook County, Chicago, for President Dunne; Paul P. Biebel, Jr., Deputy State's Atty., Chief, Civ. Actions Bureau, Henry A. Hauser, Asst. State's Atty., Chicago, of counsel.

Jerome H. Torshen, Sp. State's Atty., Chicago, for defendants-appellees, Edward J. Rosewell, et al.; Abigail K. Spreyer, Chicago, of counsel.

James T. Ryan, Sp. State's Atty., Chicago, for petitioners-appellants, Commissioners Carl R. Hansen, et al.; Moshe J. Sassover, Greenberger, Krauss & Jacobs, Chartered, Chicago, of counsel.

Thomas J. Royce, Chicago, for petitioner-appellant, Jerome Huppert.

Arnold M. Flamm, Chicago, for Marshall E. Winokur, et al., plaintiff-appellant; Prins, Flamm & Susman, Ltd., Chicago, of counsel.

CLARK, Justice:

The incumbent members of the Cook County Board were reelected on November 7, 1978, for new four-year terms scheduled to begin on December 4, 1978. A special meeting of the board was held on November 27, 1978, and the board adopted two resolutions increasing the compensation of various Cook County officers and the members of the board, to take effect on December 4, 1978, the date their new terms began.

President Dunne vetoed these resolutions the next day. The board overrode his veto on November 29, 1978. The final appropriation ordinance for the new fiscal year beginning on December 4, 1978, was adopted on February 20, 1979. This ordinance provided for the raises adopted in the resolutions. On February 26, 1979, President Dunne exercised a partial line item veto which had the effect of reducing, but not eliminating, the raises as provided in the resolutions.

Three separate lawsuits arose from these facts. In Winokur v. Rosewell, the circuit of Cook County, ruling on a constitutional challenge by plaintiff, Marshall E. Winokur, representing the class of taxpayers, held that the raises were valid. In Huppert v. Dunne, another judge of the same court ruled, in a petition for mandamus brought by a member of the board to compel President Dunne and County Board Comptroller Beck to pay the raises authorized, that the board's action violated section 38 of "An Act to revise the law in relation to counties" (the Counties Act) (Ill.Rev.Stat.1977, ch. 34, par. 304). The petition for mandamus was accordingly dismissed. The third suit, Hansen v. Dunne, a petition for mandamus and declaratory judgment, prayed for a judgment declaring President Dunne's partial line item vetoes null and void and for a writ of mandamus directing President Dunne to approve payment of the raises as authorized in the resolutions. The third suit also involved the board's adoption of an ordinance, on February 5, 1979, to reduce the percentage of votes necessary to override a veto by the president of the board. President Dunne vetoed this measure on February 13, 1979, and the members argue that his action was untimely and, in the alternative, that the prior percentage necessary to override the veto, 80%, is unconstitutional. The appropriate relief was requested. In this suit a third judge of the circuit court of Cook County ruled that the pay raises were invalid on statutory and constitutional grounds and that President Dunne's line item vetoes were valid. The court also upheld the veto of the ordinance reducing the percentage of votes needed to override a veto and upheld the constitutionality of the higher percentage figure. We granted a direct appeal to this court (see 73 Ill.2d R. 302(b)) and consolidated these cases.

The first issue, whether the Board's action can stand in view of section 38 of the Counties Act is easily resolved. Section 38 states:

"The time of fixing the compensation of county officers, which compensation is to be fixed by the county board, shall be at the meeting of such Board next before the regular election of the officers whose compensation is to be fixed; but in case where such compensation is not fixed, the Board shall proceed, at the next regular or special meeting thereafter, to fix such compensation." (Ill.Rev.Stat.1977, ch. 34, par. 304.)

Section 61.2 of the Counties Act (Ill.Rev.Stat.1977, ch. 34, par. 906) states that "regular" meetings "shall" be held "on the first Monday of December, January, February, March, June, and September in each year * * *." Rule 3 of the Cook County Board, "adopted * * * pursuant to the authority granted to the County of Cook as a home rule unit," states that "(t)he Board of Commissioners shall hold regular meetings on the first and third Monday of each month."

After the general election, held on November 7, 1978, the board met on November 20 (the third Monday in November), November 27 and November 29. The new term began on December 4. The compensation resolutions were adopted at the meeting of November 27. Defendants Dunne and Beck contend that in view of section 61.2, the November 20 meeting was a special meeting for purposes of section 38. In the alternative, they contend that if salary action is not taken before an election, section 38 allows such action only at the first meeting after the election. If we accepted either argument, the board's action was illegal. Applying the first analysis suggested, the board's action was illegal because the November 20 meeting, at which no salary action was taken, was the first special meeting held after the election, and section 38 does not allow salary action to be taken after the first special meeting subsequent to the election. Under the second suggested analysis, the board's action was illegal because even if the November 20 meeting were to be considered a regular meeting, no action was taken at this meeting. As the defendants argue in their brief:

"The statutory language (section 38) clearly permits only two opportunities to consider a pay raise, once immediately before the election, once immediately after. The use of the word 'next' in the statute, together with the singular 'meeting' clearly supports this conclusion. Moreover, the use of the alternate 'regular or special' results from the eventuality that only a special meeting might be possible under the statutory provisions and rules of the Board relating to meetings."

Plaintiffs in the Hansen and Huppert cases argue that the board's Rule 3, as an exercise of the home rule power, overrides section 61.2 and that section 38 allows salary action to be taken at either of two times after an election: either at the first regular meeting after the election or at the first special meeting after the election. Under this analysis, the failure of the board to take action at the meeting of November 20 did not prevent its action at the meeting of November 27.

We decline to resolve this statutory ambiguity at this time, for in Sommer v. Village of Glenview (1980), 79 Ill.2d 383, 393, 38 Ill.Dec. 170, 403 N.E.2d 258, we held that "acts taken by the governing board of a home rule unit" were to be deemed as an exercise of its home rule power provided under article VII, section 6, of the 1970 Constitution. The salary resolutions here obviously pertain to its government and affairs. (Ill.Const.1970, art. VII, sec. 6(a); see generally Sandalow, The Limits of Municipal Power Under Home Rule: A Role for the Courts, 48 Minn.L.Rev. 643 (1964).) Insofar as these resolutions conflict with section 38, enacted well before the 1970 Constitution, they must prevail. (See Sommer v. Village of Glenview (1980), 79 Ill.2d 383, 392-93, 38 Ill.Dec. 170, 403 N.E.2d 258, and cases cited therein.) No case has been cited by the parties or found by us which would support upholding section 38, as defendants Dunne and Beck have urged, as a merely procedural limitation upon home rule units requiring them to explicitly state their opposition to it before enacting a replacement procedure.

We must turn, then, to the contention of plaintiff Winokur and defendants Dunne and Beck that the raises violated article VII, section 9(b), of the Illinois Constitution which reads:

"An increase or decrease in the salary of an elected officer of any unit of local government shall not take effect during the term for which that officer is elected." (Ill.Const.1970, art. VII, sec. 9(b).)

This section replaced similar provisions of the Constitution of 1870. See, e. g., Ill.Const.1870, art. IX, sec. 11; art. X, sec. 10.

The 1870 provisions have been the subject of much litigation, primarily concerning which officials were within its scope. (See e. g., Barnett v. County of Cook (1926), 320 Ill. 227, 150 N.E. 672; Peabody v. Forest Preserve District (1926), 320 Ill. 454, 151 N.E. 271; People ex rel. Lyle v. City of Chicago (1935), 360 Ill. 25, 195 N.E. 451; People ex rel. Ruesch v. Hire (1950), 406 Ill. 341, 94 N.E.2d 161.) These provisions generally were understood to make the public officers' term of office the dispositive event which prevented further salary adjustments.

Thus, in County of Cook v. Sennott (1891), 136 Ill. 314, 26 N.E. 491, it was held that an elected clerk of the probate court taking office in December 1886 for a four-year term could not have his salary increased by legislation taking effect in July 1887. In Peabody v. Forest Preserve District (1926), 320 Ill. 454, 151 N.E. 271, it was held that the fees, salary or compensation of a municipal officer "elected or appointed for a definite term of office" shall not be "increased or diminished during such term." (320 Ill. 454, 463, 151 N.E. 271.) In People ex rel. Lyle v. City of Chicago (1935), 360 Ill. 25, 29, 195 N.E. 451, it was similarly held that a city council was without authority to change municipal judges' salaries "during the respective terms for which they were elected." (360 Ill. 25,...