Fischer v. Brombolich

566 N.E.2d 785, 207 Ill. App. 3d 1053, 152 Ill. Dec. 908, 1991 Ill. App. LEXIS 67
CourtAppellate Court of Illinois
DecidedJanuary 11, 1991
Docket5-90-0430
StatusPublished
Cited by18 cases

This text of 566 N.E.2d 785 (Fischer v. Brombolich) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fischer v. Brombolich, 566 N.E.2d 785, 207 Ill. App. 3d 1053, 152 Ill. Dec. 908, 1991 Ill. App. LEXIS 67 (Ill. Ct. App. 1991).

Opinion

JUSTICE LEWIS

delivered the opinion of the court:

On June 7, 1990, the plaintiffs, Michael Fischer, Mel Jones, and Alverna Wrigley, filed a complaint against the defendants, Gene J. Brombolich, Virginia M. Trucano, Melvin P. Pamatot, and the City of Collinsville. In the complaint, the plaintiffs sought a preliminary and permanent injunction, a declaratory judgment, a writ of certiorari, an order of prohibition, and a writ of quo warranto against the defendants, the purpose of all these causes of action being to prevent the city council of the City of Collinsville from enforcing ordinance 2361, which was passed by the council on April 30, 1990. On June 27, 1990, the circuit court of Madison County held a hearing on the plaintiffs’ complaint, and on July 5, 1990, the court entered an order finding ordinance 2361 invalid and enjoining the defendants from enforcing the ordinance. The defendants appeal this order.

Before considering the facts of this case, we note that a petition to intervene was filed by some residents and taxpayers of the City of Collinsville. The intervenors’ petition was denied by the court at the hearing on the preliminary injunction; however, the court granted the intervenors the status of amicus curiae and permitted the intervenors’ representative to argue and to file a brief. The intervenors have also filed an amicus curiae brief on appeal, but because the brief raises no other issues than those raised by the defendants, we need not consider the arguments raised therein separately.

The essential facts of the case sub judice are as follows. Prior to 1983, the City of Collinsville, a non-home-rule municipality, operated under the regular commission form of government pursuant to the Illinois Municipal Code. (Ill. Rev. Stat. 1989, ch. 24, par. 4 — 1—1 et seq.) In 1979, a referendum was presented to the electorate in which the City of Collinsville adopted the modified commission form of government pursuant to section 4 — 3—19 of “The Commission Form of Municipal Government” article of the Illinois Municipal Code (Ill. Rev. Stat. 1979, ch. 24, par. 1 — 1—1 et seq.), which form of government was to become effective at the time of the election of the commissioners in 1983. (Ill. Rev. Stat. 1979, ch. 24, par. 4-3-19.) Under the modified commission form of government, the commissioners were to run for a specific office instead of running as a commissioner at large; however, under both the regular commission form of government and the modified form of government, the mayor was to be the commissioner of public affairs. Ill. Rev. Stat. 1989, ch. 24, par. 4 — 5—3.

In 1983, Michael Fischer, one of the plaintiffs, was elected commissioner of public health and safety, and Gene Brombolich, one of the defendants, was elected as commissioner of public affairs, i.e., the mayor of Collinsville. Both Fischer and Brombolich were reelected to these offices in the 1987 election, and their current terms of office do not expire until 1991. The two remaining plaintiffs, Mel Jones and Alverna Wrigley, were registered voters and taxpayers of the City of Collinsville and had voted for Michael Fischer as commissioner of public health and safety in the 1987 election. The other defendants, Virginia M. Trucano and Melvin P. Pamatot, were two of the five commissioners who had voted with Brombolich to pass ordinance 2361. The fifth commissioner of the city council had voted against the ordinance in question and was not a party to this litigation.

On April 30, 1990, the city council of the City of Collinsville voted 3 to 2 to pass ordinance 2361. Ordinance 2361 amended ordinance 2042, which had been passed in November 1982 and had become effective on April 25, 1983, when the new council had taken office. In ordinance 2042, the various subdepartments of the City were distributed among the five major departments pursuant to the statute (Ill. Rev. Stat. 1989, ch. 24, par. 4 — 5—2), i.e., the department of public affairs, the department of accounts and finances, the department of public health and safety, the department of streets and public improvements, and the department of public property. Under ordinance 2042, the police department and the department of canine control were two of the subdepartments under the supervision of the commissioner of public health and safety (Fischer). Ordinance 2361, the subject of this litigation, amended ordinance 2042 by transferring the police department and the canine control department to the department of public affairs (Brombolich). Ordinance 2361 was to become effective on May 1,1990, during plaintiff Fischer’s term of office.

Subsequently, plaintiffs filed their complaint. The defendants filed a motion to dismiss the count seeking injunctive relief and an answer to the plaintiffs’ complaint. On June 27, 1990, a hearing was held on the plaintiffs’ complaint; however, only the count seeking the preliminary injunction was considered. At the hearing, the court heard the arguments of counsel and issued its oral pronouncement, but subsequently, on July 5, 1990, the court entered a written order in which the court denied the defendants’ motion to dismiss count I of the complaint, found that the enactment of ordinance 2361 was not valid and • granted the plaintiffs’ petition for preliminary injunction. The court stayed the enforcement of the preliminary injunction for 30 days, but no further stays were granted and the preliminary injunction prohibiting the enforcement of ordinance 2361 went into effect.

On appeal, the defendants contend that the city council had the statutory power to enact ordinance 2361, that the plaintiffs’ complaint did not state sufficient information for a preliminary injunction, and that the law and the facts did not support the issuance of the preliminary injunction. We first consider whether the city council of the City of Collinsville had the statutory power to enact ordinance 2361.

Under the Illinois Constitution, a non-home-rule municipality only has the authority that is expressly provided under the statute or which is necessarily implicit from the express authority. (Ill. Const. 1970, art. VII, §7; Baltis v. Village of Westchester (1954), 3 Ill. 2d 388, 121 N.E.2d 495.) An implied power asserted by a municipality may be gathered from a single express grant of authority or from several. (Chicago School Transit, Inc. v. City of Chicago (1966), 35 Ill. 2d 82, 219 N.E.2d 522.) If a municipality’s actions are in conformity with the express and the implied powers granted, then its actions are valid, otherwise they are not. (Baltis, 3 Ill. 2d 388, 121 N.E.2d 495.) Because a municipality only derives its powers by an express grant from the legislature, the statutes granting this power are strictly construed, and any doubt concerning an asserted power is resolved against the municipality. (Village of River Forest v. Midwest Bank & Trust Co. (1973), 12 Ill. App. 3d 136, 297 N.E.2d 775.) Therefore, our first consideration must be to determine if the city council had the express or implied authority to pass ordinance 2361.

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Bluebook (online)
566 N.E.2d 785, 207 Ill. App. 3d 1053, 152 Ill. Dec. 908, 1991 Ill. App. LEXIS 67, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fischer-v-brombolich-illappct-1991.