delivered the opinion of the court:
These
We consider first the primary issue as it concerns the city of Berwyn. In addition to its elected mayor, city clerk, city treasurer, and eight aldermen, the applicable statutes (Ill. Rev. Stat. 1975, ch. 24, pars. 3 — 7—1, 3 — 7—2, 3 — 7—5) provide for the appointment by the mayor, with the approval of the council, of certain other officers, including the city collector, superintendent of streets and commissioner of public works. The Municipal Code of the city provided that the named offices should be filled in the same way. The position of city attorney existed, but since 1965 there had apparently been no office of city attorney or corporation counsel. The statute also provides generally that a mayor may remove any officer appointed by him, and specifically in the case of these offiсers in a city of Berwyn’s population, that “[t] he appointees to these offices shall be subject to removal by the mayor ***.” Ill. Rev. Stat. 1975, ch. 24, pars. 3 — 11—1, 3 — 7—5.
In May and June of 1975 the defendants, the aldermen of the city of Berwyn, enacted ordinances removing from office the incumbent superintendent of streets, commissioner of public works, and city collector, and appointing replacements for them. On June 9, 1975, the defendant aldermen adopted a resolution removing the incumbent city attorney. The plaintiffs, the mayor and city clerk of the city of Berwyn, brought this action challenging thе power of the aldermen to exercise the
The members of the city council base their claim of authority to assume the power to appoint and remove municipal officers and employees upon the fact that the city of Berwyn is a home rule municipality. The relevant provisions of the Constitution of 1970 are sections 6(a) and 6(f) of article VII, which provide:
“(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 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.”
“(f) A home rule unit shall have the power subject to approval by referendum to adopt, alter or repeal a form of government provided by law ***. A home rule municipality shall have the power to provide for its officers, their manner of selection and terms of office only as approved by referendum or as otherwise authorized by law. ***”
The defendants urge that these provisions mean that only “[t] hose changes in a home rule municipality which affеct the basic nature of government are reserved to either the voters, by referendum or the State legislature by statute.” But the Constitution does not speak of changes in “the basic nature of government.” It grants authority, subject to referendum approval, to “adopt, alter or repeal a form of government provided by law,” and “to provide for its
The meaning which the defendants would give to the constitutional provisions is not what the draftsmen intеnded. The Report of the Committee on Local Government of the Constitutional Convention of 1970 contains this explanation of the purpose of those provisions, which were then identified as paragraph 4.3:
“But more than the manner of electing the county board is included within the meaning of ‘form of government.’ It also includes the relative powers and functions of the county board and the chief executive officer of the county. Thus this paragraph contemplates that the General Assembly will provide for various patterns of county administrative organization — perhaps including the election of a county executive officer or the appointment of a county manager or administrative officer — and that counties will be permitted to select among these plans by referendum.
With respect to municipalities, the portion of paragraph 4.3 relating to ‘forms of government’ contemplates that various plans for the election of municipal governing boards and for the relationship of legislative and executive branches of government within municipalities will be provided by the General Assembly for selection by variоus municipalities through a referendum. This is essentially the pattern that now prevails by statute. (See, generally, Ill. Rev. Stat. ch. 24 (1969).)” 7 Record of Proceedings, Sixth Illinois Constitutional Convention 1667; see also Baum, A Tentative Survey of Illinois Home Rule (Part I): Powers and Limitations, 1972 U. Ill. L.F. 137, 146-50.
While the defendants have based their authority to enact the ordinances in question upon their status as home rule municipalities, we think it important to point out that under section 7 of article VII of the Constitution of 1970 municipalities which are not home rule units also have the same authority “by referendum, to adopt, alter or repeal their forms of government provided by law,” and “to
The “pattern that now prevails by statute” is the pattern contained in the Municipal Code of 1961, which provides for several alternative forms of municipal government. A municipality may be organized as a city or as a village having the form of government provided in article 3, and it may by referendum adopt the “Commission” Form of Municipal Government provided in article 4, or the “Managerial” Form of Municipal Government provided in article 5. (Ill. Rеv. Stat. 1973, ch. 24, arts. 3, 4, and 5.) Different relationships between the legislative and executive branches of municipal government are provided in these different forms of government. Under the “Commission” Form of Municipal Government, for example, the statute provides that “[t] he council and its members shall possess and exercise all executive, administrative, and legislative powers and duties now possessed and exercised by the executive, legislative, and administrative officers” in other municipalities. Ill. Rev. Stat. 1975, ch. 24, par. 4-5-2.
The defendant aldermen advance several opinions of this court in support of the validity of their action, but none of them involved the issue presented in this case. The question involved in Kanellos v. County of Cook (1972),
The Municipal Code of 1961 provides two methods by which city and village officers other than the mayor and the members of the city council may be chosen. Section 3 — 4—19 provides that “the city council, in its discretion, may provide by ordinance passed by a two-thirds vote of all the aldermen elected for the election by the electors of the city of a city collector, a city marshal, a city superintendent of streets, a corporation counsel, a city comptroller, or any of them, and any other officers which the city council considers necessary or expedient.” (Ill. Rev. Stat. 1975, ch. 24, par. 3 — 4—19.) Section 3 — 7—1 authorizes the city council by a two-thirds vote, instead of providing for the election of these officers, to provide for their appointment by the mayor, with the approval of the city council. The only form of municipal government provided by law which authorizes a city council or the
In the Oak Lawn case the first problem presented concerns the validity of actions taken by the defendant members of the board of trustees with respect to the village attorney. Since 1953 the village has operated under the “Managerial Form of Municipal Government” provided for in article 5 of the Municipal Code of 1961. As of 1971, the Village Code authorized the city manager to appoint certain officers of the city, including the village attorney, “and to appoint and remove, or suspend, all Village employees and other Department heads.”
An ordinance adopted in May of 1975, over the veto of the village president, eliminated the office of village attorney from the list of officers to be appointed by the village manager and provided that the village attorney “shall be appointed by the Board of Trustees.” The trial court issued a temporary injunction restraining enforcement of this ordinance. The defendants appealed to the appellate court, but the appeal was dismissed as moot, apparently because of subsequent ordinances adopted by the board of trustees.
On June 17, 1975, another ordinance was adopted, over the veto of the village president, which “established the position of corporation counsel of the Village of Oak Lawn,” and provided that “the corporation counsel shall be appointed upon nomination of any of the corporate
On June 24, 1975, the board of trustees adopted, over the veto of the president of the village, another ordinance which again established the position of cоrporation counsel but this time provided that the corporation counsel should be retained on an independent contractor basis, by “the joint action of the corporate authorities.” This ordinance stated that it did not “alter the existing ordinance establishing the office of village attorney, as long as that office is in existence.”
An ordinance adopted August 19, 1975, over the veto of the village president, repealed the provisions of the Village Code relating to the office of village attorney, “effective January 1, 1976.” On September 23, 1975, the defendants аdopted, over the veto of the village president, an ordinance to become effective on January 1, 1976. This ordinance amended the Village Code to provide that the president and board of trustees, “voting jointly, may employ an attorney or attorneys as an independent contractor or as independent contractors.”
The most significant characteristic of the managerial form of municipal government is that the “municipal manager *** shall be the administrative head of the municipal government.” (Ill. Rev. Stat. 1975, ch. 24, par. 5 — 3—7.) The board of trustees has no powers with respect to administration. The statute provides: “The powers of the council or board shall be purely legislative except as
The basic objective of the succession of enactments by the board of trustees appears to have been to secure for itself the power to control the office of village attorney. Considering these efforts seriatim, the ordinance of May, 1975, in so far as it sought to abolish the office of village attorney, was within thе power of the board of trustees. But the ordinance also sought to take over the village manager’s power of appointment, and to that extent it was beyond the power of the board. Nothing in the record suggests that the two purposes were severable, and in our opinion the trial court properly held the entire ordinance invalid. The two ordinances adopted in June were also beyond the power of the board of trustees. Without a referendum they encroached upon the appointive power granted to the village manager both by stаtute and by the Village Code, and they also sought to change the manner of selection of a village officer without a referendum. Those ordinances, too, were invalid.
The ordinance of August 19, 1975, stands upon a somewhat different footing. Section 3 — 7—1 of the Municipal Code provides: “By ordinance or resolution, to take effect at the end of the current fiscal year,” the city council by a two-thirds vote “may. discontinue any office so created, and devolve the duties of that office, on any
In the light of the numerous efforts of the trustees which preceded the enactment of the ordinances of August 19 and September 23, however, we are of the opinion that they must be read together. So read, they form a part of a continuing effort on the part of the trustees to encroach upon the statutory authority of the city manager and to appropriate to themselves, without a referendum, the power to appoint the legal advisor for the village. We conclude, therefore, that the circuit court correctly held the ordinances of August 19 and September 23 invalid.
The second issue in the Oak Lawn case concerns the validity of an ordinance terminating the duties of the village president as local liquor control cоmmissioner and supplanting him with a “local liquor control commission to be composed of three members of the corporate authorities” who are to be appointed by the board of trustees. The Liquor Control Act provides that the “mayor or president of the board of trustees of each city, village or
“It is the intent and purpose of this ordinance, that the Village of Oak Lawn utilize its home-rule power in order to concurrently regulate the sale of alcoholic liquor in the Village of Oak Lawn. Where this ordinance specifically alters State law, such as where State law provides that the mayor shall be the local liquor control commissioner, and this ordinance provides that the local liquor control commission shall be a commission composed of three of the members of thе corporate authorities of the Village, then said ordinance shall control. However, where State law is not specifically altered or amended, or where it is not mentioned at all, then, in that case, the law of the State of Illinois shall control concerning the control of liquor within the Village of Oak Lawn.”
In support of the validity of this ordinance the defendant trustees advance two recent decisions of the appellate court, each of which sustained an ordinance that increased the age of persons to whom beer and wine might be sold within the municipality from 19 years — the age approved by the State — to 21 years. (Illinois Liquor Control Com. v. City of Joliet (1975),
Another issue presented in the Oak Lawn case concerns the compensation to be paid to the village president. The Village Code, as it was last amended in 1968, fixed the salary of the president at $12,000 per year, and his compensation as local liquor control commissioner (see Ill. Rev. Stat. 1975, ch. 43, pars. 111, 111a) at $2,000 per year. The annual appropriation ordinance of the village for the fiscal year that began on January 1, 1973, was adopted in December of 1972, and it provided for compensation of the president at $18,000 per year, and as local liquor control commissioner at $2,000 per year. The village president was elected in April of 1973 for a term of four years commencing May 1, 1973. The defendant trustees contend that the compensation of the village president is governed by the following statutory provision:
“The corporate authorities of any city may fix the salary of all city officers, except those who are elected for a definite term, and of all employees, in the annual appropriation ordinance. They may fix the salary of all officers who are elected for a definite term in an ordinance other than the appropriation ordinance.” (Ill. Rev. Stat. 1973, ch. 24, par. 3 — 13—2.)
The defendants conclude, therefore, that the compensation provided in the annual appropriation ordinance must be disregarded.
The plaintiff asserts that the kind of ordinance that is to be used in fixing the salaries of the officers of a home rule municipality is a matter that concerns the “government and affairs” of the municipality within section 6(a) of article VII of the Constitution, and not one that relates to its “form of government” or the creation or elimination of officers or “their manner of selection and terms of office” within the limitations of section 6(f). We agree. The matter of the particular form of ordinance to be used in fixing the compensation of the village president seems clearly to relate to the government and affairs of the municipality, and not to fall within the exceptions mentioned in section 6(f) of article VII.
In both of these consolidatеd cases the defendants have relied heavily upon the opinion of the Appellate Court, Second District, in Dianis v. Waenke (1975),
We do not find the Dianis opinion persuasive. No authority was cited to support the statement quoted above, which is directly contrary to fundamental principles that have governed the powers of officers of municipal corporations. Moreover, the opinion totally failed to recognize the provisions of section 7 of article VII of the Constitution with respect to the authority of non-home-rule units “to provide by referendum for their officers, manner of selection and terms of office.” (Emphasis supplied.)
After the trial court had entered its judgments disposing of the issues which we have thus far discussed, the mayor in the Berwyn case and the village president in the Oak Lawn case each filed a petition requesting the court to assess the fees of his attorneys against the members of the legislative body of his municipality or alternatively against the municipality itself. The trial court found that “reasonable attorney’s fees and costs should be awarded to the attornеys for plaintiffs in an amount to be determined upon hearing after conclusion of appellate proceedings.” From these orders the defendants have also appealed.
We agree with the plaintiffs that this litigation was brought about by the illegal conduct of the individual members of the two legislative bodies. It is also true, as the plaintiffs point out, that recent decisions have indicated a decided trend toward the judicial allowance of attorney’s fees to successful plaintiffs. Ehrenzweig, Reimbursement of Counsel Fees and the Great Society, 54 Calif. L. Rev. 792 (1966); Note, The Allоcation of Attorney’s Fees After Mills v. Electric Auto-Lite Co., 38 U. Chi. L. Rev. 316 (1971); Falcon, Award of Attorneys’ Fees in Civil Rights and Constitutional Litigation, 33 Md. L. Rev. 379 (1973).
Nevertheless we are of the opinion that these are not proper cases for the award of fees to the attorneys for the plaintiffs. No ground exists for placing the burden of the
The judgments of the circuit court of Cook County are affirmed, except to the extent that they related to attorneys’ fees.
Judgments affirmed.