author: JUSTICE PERLIN

text:
    ROSALIA BRENGOLA-SORRENTINO, Plaintiff-Appellant, v. THE DEPARTMENT OF PUBLIC AID et al., Defendants-Appellees.
    First District (2nd Division)
    No. 83—3076
    Opinion filed December 18, 1984.

      Hayt, Hayt & Landau, of Evanston (Ann L. Abbott, of counsel), for appellant.
    Neil F. Hartigan, Attorney General, of Springfield (Owen M. Field, Special Assistant Attorney General, of counsel), for appellees.
   JUSTICE PERLIN

delivered the opinion of the court:

In July 1982, while a patient at Swedish Covenant Hospital, Rosalia Brengola-Sorrentino (plaintiff) applied for financial assistance under the Aid to the Medically Indigent Program (AMI) of the Public Aid Code (Code) (Ill. Rev. Stat. 1981, ch. 23, par. 7 — 1 et seq.), Plaintiff was then a visitor to the United States from her native Italy. She resided with her daughter and son-in-law at the time of her illness.

Upon receipt of her application, the Cook County Department of Public Aid (county department) mailed to plaintiff a request for financial verification and for an interview. Because plaintiff was still hospitalized and not fluent in the English language, her daughter telephoned the county department, and spoke with the caseworker assigned to plaintiff’s case. The daughter advised the caseworker that plaintiff had no insurance or other assets and that plaintiff’s bank account in Italy had been closed. Plaintiff’s sole income was approximately $450 per month from her deceased husband’s Italian pension program.

Following the telephone interview with plaintiff’s daughter, the county department mailed to plaintiff a form requesting documentation of the status of plaintiff’s bank account(s). In response, plaintiff’s son-in-law (Wlandis) forwarded to the county department a statement from the Chicago branch of the National Bank of Greece, which stated that Wlandis had an account there with the balance of some $6,600. Wlandis enclosed a handwritten statement which advised in part:

“Mrs. Rosalia Brengola-Sorrentino had from [her daughter and son-in-law] the sum of $7,000 as a gift to be used for her hip replacement surgery. *** [S]he spent only $2,000.00 as follows:
* * *
The [remaining] $5,000.00 are kept by me in my checking account.”

In August 1982, the county department denied plaintiff’s application for benefits under AMI, finding that “the value of your assets exceeds the maximum allowed by agency standards.”

Plaintiff appealed the denial of the county department to the Illinois Department of Public Aid (Department) (Ill. Rev. Stat. 1981, ch. 23, par. 11 — 8 et seq.). At the administrative hearing held on her appeal, plaintiff was not present, but she was represented by counsel and Wlandis was also present. At that hearing the caseworker explained that under Department regulations, plaintiff would be eligible for AMI only in the event she had “non-exempt assets” of less than $400. The caseworker concluded that the documents provided by Wlandis and his verbal statements to her demonstrated that plaintiff had “available” to her the $5,000 gift from Wlandis and his wife, and, therefore, plaintiff was not financially eligible for AMI.

Wlandis testified that the account at the National Bank of Greece was in his own name only, and that he had intended to give the money therein to his mother-in-law only in the event no other funds were available to her to help defray medical expenses. Wlandis also stated that he had paid several thousand dollars in medical bills incurred by his mother-in-law on previous occasions and that plaintiff’s present outstanding medical bill totalled $15,000. Following this testimony, plaintiff’s attorney argues that the money allegedly given plaintiff by Wlandis should not be considered by the Department to be plaintiff’s asset. He urged that the money was not a “legal” gift, because there was no evidence that, under Illinois law, a valid inter vi-vos gift had occurred. Plaintiff’s attorney contended that the Department could not properly conclude that those funds were, in fact, an asset available to plaintiff.

In September 1982, the Illinois Department affirmed the decision of the county department and found plaintiff ineligible for AMI. Plaintiff filed a complaint for administrative review in the circuit court. The trial court affirmed the Department’s decision, and plaintiff filed a timely notice of appeal.

Plaintiff contends that: (1) the Department’s determination that she was ineligible for AMI benefits because she had resources available to her in excess of $400 was against the manifest weight of the evidence; (2) the Department’s regulations governing eligibility for AMI are contrary to the provisions of the Code; and, (3) the Department’s policy which allows AMI applicants to “reduce” their “excess assets” while their application is pending violates equal protection.

Before weighing plaintiff’s contentions, it is helpful to review portions of the Code and Department regulations issued thereunder. Among the purposes of the Illinois Public Aid Code is “the alleviation and prevention of poverty and thereby to protect and promote the health and welfare of all people of this State.” (Ill. Rev. Stat. 1981, ch. 23, par. 1 — 1.) The Code establishes several types of programs for assisting needy persons; AMI is one such program.

Article VII of the Code encompasses the AMI program. Section 7 — 1 therein provides, in part:

“Eligibility requirements. Aid in meeting the costs of necessary medical *** care, or burial shall be given under this Article to or on behalf of any person who meets the eligibility conditions of Sections 7 — 1.1 through 7 — 1.4 ***.” (Ill. Rev. Stat. 1981, ch. 23, par. 7-1.)

Section 7 — 1.2 provide s, in part:

“Need. The money, property or other resources available to the person, including support available from legally responsible relatives, must be insufficient to meet the costs of necessary care, as defined by standards established in accordance with Section 7 — 2 of this Article.” (Ill. Rev. Stat. 1981, ch. 23, par. 7-1.2.)

Section 7 — 2 provides, in part:

“Amount of aid — Standards. The person shall be given such care as may be necessary and proper ***.
The amount and nature of the care provided shall be determined in accordance with a uniform standard of eligibility established by the Illinois Department and its rules and regulations. *** The standard shall include provision for determining what, if any, portion of the income, property or other resources of an applicant or recipient is available to meet the cost of necessary care.” Ill. Rev. Stat. 1981, ch. 23, par. 7 — 2.

The Department is charged with the general administration of the public aid programs. (Ill. Rev. Stat. 1981, ch. 23, par. 12 — 1.) Section 12 — 13 of the Code authorizes the Department to “make all rules and regulations and take such action as may be necessary or desirable for carrying out the provisions of this Code ***.” Ill. Rev. Stat. 1981, ch. 23, par. 12 — 13.

Several Department regulations governing the AMI program are relevant here. Financial eligibility for AMI is determined by the amount of the applicant’s “non-exempt assets.” “Exempt assets,” which are not considered in determining eligibility, include “homestead property, household furnishings, clothing and personal effects and one motor vehicle if the equity value does not exceed $1,500.00.” (Department Gen. Asst. Man. PO — 505.) To be eligible for AMI, a single person such as plaintiff, not living with a spouse or dependent child, must not have available to them more than $400 in nonexempt assets (the “asset disregard” level).

The Department has, as a part of its financial eligibility requirements, enacted regulations which allow an applicant found to have assets in excess of the appropriate “disregard” to reduce his or her excess assets so as to become eligible for AMI benefits. Although the record is not completely clear as to the specific ramifications of this asset-reduction policy, the record contains “Downstate General Assistance Manual Release No. 83.2,” which states that it “clarified” AMI policy. Therein it is provided:

“Excess assets may be reduced to the appropriate disregard before eligibility is determined without affecting AMI eligibility.
Eligibility for AMI does not exist when assets are in excess of the disregard. If excess assets exist on the day of decision, deny the application. If during the established period assets exceed the disregard, immediately cancel the case.
Eligibility for one month backdating only exists if the case is approved and backdating is requested. For the month for which backdating is requested, if assets are within the allowable disregard for at least one day of the month, backdating may be provided for the requested month.
If backdating is requested and assets are not reduced for the requested month but are reduced for at least one day during the month of application and following month(s), eligibility exists beginning with the month of application. If backdating is not requested and the case has excess assets that are reduced to the disregard for at least one day of the month of application and following months, eligibility exists beginning with the month of application.
Example: The application date is 5-4-82 and 1 month backdating is requested. Excess assets were reduced on 4-26-82 and remain less than the disregard. The date of decision is 6-15-82. Medical eligibility can be backdated to 4-1-82.”

Plaintiff first argues that the Department’s determination that she was ineligible for benefits under the AMI program is against the manifest weight of the evidence.

Section 7 — 1.2 of the Code provides that in ascertaining the eligibility of AMI applicants, “[t]he money, property, or other resources available to the person” (emphasis added), must be considered. As noted, the Department here determined that Wlandis’ “gift” to plaintiff of approximately $5,000 constituted “resources available” to her.

Plaintiff contends that, as a matter of law, no gift was here made. It is plaintiff’s position that in the absence of evidence of each of the elements of an “inter vivos gift” the Department’s decision must be reversed. We do not agree. The findings of fact by an administrative agency are prima facie correct. (Ill. Rev. Stat. 1983, ch. 110, par. 3 — 110.) Those findings will be set aside only when they are found to be against the manifest weight of the evidence. (Eastman Kodak Co. v. Fair Employment Practices Com. (1981), 86 Ill. 2d 60, 426 N.E.2d 877.) In the present case Wlandis provided uncontradicted documentary and oral evidence that the money in his bank account was a gift available to petitioner for payment of her medical bills. Thus, the Department’s finding that the money constituted “resources available” to plaintiff is not against the manifest weight of the evidence. Under these circumstances, we cannot agree with plaintiff’s position that the Department had the burden of proving that a valid inter vivos gift was, in fact, made to plaintiff.

Plaintiff next contends that the Department’s asset policy is contrary to provisions of the Code. As noted, the Department determines financial eligibility on the basis of the applicant’s “non-exempt assets.” Plaintiff contends that sections 7 — 1.2 and 7 — 2 of the Code require the Department, in evaluating an applicant’s eligibility for assistance, to consider the applicant’s “net” assets; that is, the difference between the applicant’s assets and the applicant’s outstanding medical bills.

Plaintiff relies on her interpretation of the following statutory language. Section 7 — 1.2 provides that “[t]he *** resources available to the person *** must be insufficient to meet the costs of necessary care, as defined by standards established in accordance with Section 7 — 2 of this Article.” (Ill. Rev. Stat. 1981, ch. 23, par. 7 — 1.2.) Section 7 — 2 provides that “[t]he person shall be given such care as may be necessary and proper ***” and “[t]he amount and nature of care provided shall be determined in accordance with a uniform standard of eligibility established by the [Department]” and that “[t]he standard shall include provision for determining what, if any, portion of the income, property or other resources of an applicant *** is available to meet the cost of necessary care.” Ill. Rev. Stat. 1981, ch. 23, par. 7 — 2.

Plaintiff argues that the above-stated statutory language evidences an intent by the legislature to require the Department to consider not just an applicant’s assets, but also the applicant’s medical needs or bills. We agree with plaintiff, but we find that the Department’s policies, including the asset-reduction policy, do so include consideration of the applicant’s net assets. In the event that an applicant is found to be ineligible due to excess assets, the asset-reduction policy permits the applicant to apply the excess assets to the outstanding medical bills and, thereby, become eligible for benefits. In such manner the applicant’s medical bills, as well as assets, are made a part of the AMI eligibility scheme.

Plaintiff’s final contention is that the Department’s asset-reduction policy is applied in an unconstitutional manner. She alleges that the Department does not require caseworkers to advise applicants who are found to have excess assets that they have the option of reducing their assets to the appropriate “disregard.” She states that in the instant case she was never told of the asset-reduction policy. Neither in the trial court nor in this court has the Department disputed these allegations.

Plaintiff argues that the Department is required to advise applicants of the Department’s asset-reduction policy, because a failure to do so results in arbitrary denials of aid to applicants who would otherwise be eligible if they were aware of the opportunity to reduce their assets pursuant to the Department’s policy. Curiously, the Department has not responded to this contention.

The United States Supreme Court has held that welfare agencies are duty bound to advise applicants of the eligibility standards employed by the agency.

“*** the agency must, at a minimum, let the standard be generally known so as to assure that it is being applied consistently and so as to avoid both the reality and the appearance of arbitrary denial of benefits to potential beneficiaries.” Morton v. Ruiz (1974), 415 U.S. 199, 231, 39 L. Ed. 2d 270, 292, 94 S. Ct. 1055, 1072.

Due process requires an evenhanded application of eligibility standards. In upholding a district court’s determination that a welfare agency had administered a “clothing allowance program” without any standards, constituting a violation of due process, the Seventh Circuit Court of Appeals held:

“In the context of eligibility for welfare assistance, due process requires at least that the assistance program be administered in such a way as to insure fairness and to avoid the risk of arbitrary decision making. [Citations.] Typically this requirement is met through the adoption and implementation of ascertainable standards of eligibility. The record in the instant case demonstrates that the defendants employed no system or method designed to inform members of the plaintiff class of their right to a clothing allowance as a part of their General Assistance grant. Further, defendants neither issued an Official Bulletin nor utilized any administrative guidelines governing eligibility determinations for the ‘as needed’ program pertaining to unemployed recipients. In short, it is readily apparent from the record that prior to August 1, 1976, an unemployed recipient could have received a clothing allowance benefit only upon the making of an application for a benefit of which the applicant was unaware, and upon favorable action with respect to the application by the defendants without reference to any standards of eligibility. The district court correctly found that the clothing allowance benefit was administered in a manner inconsistent with the requirements of due process.” (Carey v. Quern (7th Cir. 1978), 588 F.2d 230, 232. See also Metcalf v. Trainor (N.D. Ill. 1976), 472 F. Supp. 576; Giacone v. Schweiker (7th Cir. 1981), 656 F.2d 1238.)

In the instant case, we believe the Department’s failure to advise plaintiff of the Department’s asset-reduction policy likewise violated her due process rights.

We also find that the failure to advise applicants of the asset-reduction policy results in a further infirmity. At oral argument, counsel for the Department advised that in the event an applicant is found ineligible for AMI benefits due to excess assets, the applicant is forever barred from benefits as to all medical bills then outstanding, even if the applicant reapplies and is subsequently found to be eligible for benefits because the excess assets have been appropriately reduced. Thus, for example, in plaintiff’s case she claimed outstanding medical bills of $15,000 at the time of her application. Were she to now apply the $5,000 Wlandis gift to those bills (thereby reducing her medical bills to some $10,000 and presumably making her eligible for AMI benefits), it is apparently the Department’s position that she is ineligible for assistance for the $10,000 worth of medical bills because they were incurred at a time when she was not eligible for AMI. Only in the event that plaintiff had reduced her excess assets within one month of her initial application for benefits would the Department have found her to be eligible for aid as to her previously incurred bills. In Drogolewicz v. Quern (1979), 74 Ill. App. 3d 862, 393 N.E.2d 1212, the court struck down a department regulation which mandated disqualification from Medicaid benefits to any person found to have transferred property, in order to “obtain or increase his aid” under Medicaid from a period of “five years from the date of the transfer or until its value is reacquired.” (74 Ill. App. 3d 862, 863.) While the court’s holding was premised on its determination that the regulation violated provisions of the Federal Social Security Act, which is not here applicable, we find the court’s rationale relevant. Although the court recognized the State’s right to “constitutionally prohibit a benefit seeking motive in a Medicaid applicant’s divestment of property” (74 Ill. App. 3d 862, 869), the court held the blanket five-year disqualification improper.

“By arbitrarily deeming the transferred asset continually available over a five-year period to pay an applicant’s medical bill, instead of ‘applying’ it to the medical bill, the asset is ‘overeva-luated’. It inflates the value of the asset out of proportion to the applicant’s actual income and resources, to the amount of the medical bill.
***. Nonavailable assets cannot be deemed available, and the availability of specific assets cannot be given a currency beyond their actual value by a failure to apply their worth to the debt in question.” 74 Ill. App. 3d 862, 869.

We believe that the Department’s failure to advise applicants of the asset-reduction policy can likewise result in an overevaluation of assets in those cases where the amount of an applicant’s “excess assets” are exceeded by the amount of the applicant’s outstanding medical bills. Only when the Department advises the applicant of the asset-reduction policy, thereby allowing the applicant the opportunity to apply his excess assets to the then outstanding medical bills, is the policy fairly administered.

We find that in the present case the Department violated plaintiff’s due process rights by failing to advise her of its asset-reduction policy, thus precluding her from availing herself of the opportunity to become eligible for AMI benefits. Under these circumstances, we believe that fundamental fairness requires that plaintiff be afforded a chance to apply anew for benefits. In the event plaintiff applies for AMI benefits, the Department is ordered to process her application pursuant to all applicable regulations, and as if no prior application nor prior determination of ineligibility had been made. (See, e.g., Creamer v. Police Pension Fund Board (1978), 69 Ill. App. 3d 792, 387 N.E.2d 711.) The trial court’s order affirming the Department’s decision is reversed; the Department’s determination of ineligibility is vacated, and this cause is remanded for further proceedings consistent with this opinion.

Reversed and remanded with instructions.

HARTMAN, P.J., and DOWNING, J., concur.

      It appears that plaintiff’s hospitalization in the present case was due to a hip infection which set in following her hip replacement surgery.

       Justice Downing participated in the decision of the above-captioned case before the expiration of his term in office.


source: Caselaw Access Project

author: PRESIDING JUSTICE LINN

license: Public Domain

text:
    FIRESIDE CHRYSLER-PLYMOUTH MAZDA, INC., Plaintiff-Appellant, v. CHRYSLER CORPORATION, Defendant-Appellee (B.G.C.P., Inc., Interve-ner-Appellee).
    First District (4th Division)
    No. 84—527
    Opinion filed December 13, 1984.

      Gordon & Gordon, Ltd., of Chicago (Gilbert W. Gordon, of. counsel), for appellant.
    Winston & Strawn, of Chicago (Edward L. Foote, Edward J. Wendrow, James R. Vogler, and Kevin E. White, of counsel), for appellee.
    Mitchell, Russell & Kelly, of Chicago (Thomas J. Russell and William H. Kelly, Jr., of counsel), for intervenor-appellee.
   PRESIDING JUSTICE LINN

delivered the opinion of the court:

Plaintiff, automobile franchisee, brought an action against defendant, automobile franchiser, alleging violation of the Illinois Motor Vehicle Franchise Act, as amended (Ill. Rev. Stat., 1981 & 1983 Supp., ch. 1211/2, pars. 751 through 764). Plaintiff asserts that the amended Act should be applied to protect not only those dealers that entered into franchise agreements after the effective date of the Act, but also those which, like plaintiff, entered into agreements prior to that date. Plaintiff specifically urges application of a 1983 amendment which defines “relevant market area” in such a way as would include an area not encompassed within the “sales locality” set forth in plaintiff’s 1971 franchise agreement and would give plaintiff standing to protect the granting to others of an additional franchise in that area.

Defendant and intervenor, the additional franchisee, moved for summary judgment on the grounds that retroactive application of the Act would unconstitutionally impair vested contractual rights in this instance. The trial court granted summary judgment in their favor.

We affirm the decision of the trial court.

Background

In 1971, plaintiff/franchisee, Fireside Chrysler-Plymouth, Inc. (Fireside), and defendant/franchiser, Chrysler Corporation (Chrysler), entered into a direct dealer agreement wherein plaintiff was granted the nonexclusive right to purchase defendant’s products for retail sale within a defined “sales locality.” The sales locality set forth in the agreement did not include Buffalo Grove.

In 1979, some eight years after Fireside and Chrysler had entered into their agreement, the Illinois legislature passed the Motor Vehicle Franchise Act (Ill. Rev. Stat. 1981, ch. 121V2, pars. 751 through 764). The Act makes it unlawful for any automobile manufacturer, distributor, or wholesaler to grant an additional franchise of the same line make in the relevant “market area” previously granted to another franchisee, without first giving the existing franchisee notice and an opportunity to be heard in opposition to the issuance of the additional franchise. (Ill. Rev. Stat. 1981, ch. I2IV2, par. 754(eX8).) Should the franchisee protest, the propriety of granting the additional franchise is to be determined by the circuit court, and the franchiser bears the burden of proving “good cause” to grant the franchise. The 1979 statute defined “market area” as “the franchisee’s area of primary responsibility as defined in its franchise.” (Ill. Rev. Stat. 1981, ch. 121V2, par. 752(p).) The statute provided no definition of the term “relevant market area” until the Act was amended to include such definition in November 1983. Ill. Rev. Stat., 1983 Supp., ch. I2IV2, par. 752(q).

On or about September 1983, Chrysler notified Fireside of its intention to grant B.G.C.R, Inc., the intervenor in this action, an additional franchise in Buffalo Grove. In October 1983, Chrysler and B.G.C.P. executed a letter of intent whereby Chrysler agreed to grant such a franchise upon B.G.C.P.’s agreement to meet certain terms and conditions. After this letter of intent was executed and prior to the passage of the November 1983 amendment to the Act defining the term “relevant market area,” Fireside brought the present action. B.G.C.P. sought and was granted leave to intervene.

In response to Fireside’s allegations that Chrysler had violated the Motor Vehicle Franchise Act, Chrysler and B.G.C.P. moved for summary judgment on the ground that the Act could not be applied retroactively to impair the contractual rights that vested upon the signing of the 1971 franchise agreement between plaintiff and defendant. The trial court granted summary judgment in favor of Chrysler and B.G.C.P. Plaintiff now appeals.

Opinion

On appeal, plaintiff contends that it is entitled to injunctive relief against defendant because the Motor Vehicle Franchise Act, as amended (Ill. Rev. Stat., 1981 & 1983 Supp., ch. I2IV2, pars. 751 through 764) protects not only those automobile dealers that entered into franchise agreements after June 29, 1979, the effective date of the Act, but also those dealers that entered into franchise agreements prior to that date. Accordingly, plaintiff contends that the Act, as amended, applies to the 1971 agreement entered into between plaintiff and defendant and that, had the trial court correctly looked to the 1983 amended definition of “relevant market area,” it would have found that numerous genuine issues of material fact exist such as to preclude summary judgment. Defendant, on the other hand, asserts that the 1979 Motor Vehicle Franchise Act cannot be applied retroactively to impair the vested contractual rights of Chrysler and of B.G.C.P. and that the Act, as amended, is unconstitutional. An examination and interpretation of the relevant provisions of the Motor Vehicle Franchise Act is therefore necessary to enable us to determine whether the trial court’s grant of summary judgment was proper.

The Illinois Motor Vehicle Franchise Act was enacted in 1979. Its primary effect is to declare unlawful certain enumerated unfair methods of competition and unfair and deceptive acts or practices. (Ford Motor Credit Co. v. Aaron Lincoln-Mercury, Inc. (N.D. Ill. 1983) 563 F. Supp. 1118.) One such practice prohibited by the Act is the granting of an additional franchise within the market area previously granted to another franchisee. (Ill. Rev. Stat. 1981, ch. 12D/2, par. 754(eX8).) This prohibition is set forth in section 4(e)(8), which provides, in pertinent part, as follows:

“(e) It shall be deemed a violation for a manufacturer, a distributor, a wholesaler, a distributor branch or division or officer, agent or other representative thereof:
* * *
(8) to grant an additional franchise of the same line make in the relevant market 'area previously granted to another franchisee; provided, however, that if the manufacturer wishes to grant such an additional franchise to an independent person in a bona fide relationship in which such person is prepared to make a significant investment subject to loss in such a dealership, then the manufacturer shall give notice to the existing dealer or dealers of the same line make within the market area of the proposed additional franchise at least 60 days prior to establishment of the additional franchise. Unless the parties agree upon the establishment of such additional franchise, the propriety of the granting of such additional franchise shall be determined pursuant to the guidelines of Section 12, with the franchiser having the burden of proof ***.” (Emphasis added.) Ill. Rev. Stat. 1981, ch. I2IV2, par. 754(e)(8).

The unamended 1979 Act defined “market area” as the “franchisee’s area of primary responsibility as defined in its franchise.” Ill. Rev. Stat. 1981, ch. 121V2, par. 752(p).

In November 1983, the Motor Vehicle Franchise Act was amended to include, inter alia, the definition of the term “relevant market area” and declaration of purpose.

“ ‘Relevant Market Area’ [is defined as] the area within a radius of 10 miles from the principal location of a franchise or dealership if said principal location is in a county having a population of more than 300,000 persons; if the principal location of a franchise or dealership is in a county having a population of less than 300,000 persons, then ‘relevant market area’ shall mean the area within a radius of 15 miles from the principal location of said franchise or dealership; or the area of responsibility as defined in the franchise agreement, whichever is greater.” (Ill. Rev. Stat., 1983 Supp., ch. 1211/2, par. 752(q).)

The 1983 amendment left unchanged the definition of the term “market area.” Ill. Rev. Stat. 1981, ch. 121V2, par. 752(p).

. The Act’s declaration of purpose, set forth in section 1.1 (Ill. Rev. Stat., 1983 Supp., ch. I2IV2, par. 751.1) reads as follows:

“Declaration of purpose. The Legislature finds and declares that the distribution and sale of vehicles within this State vitally affects the general economy of the State and the public interest and welfare, and that in order to promote the public interest and welfare, and in the exercise of its police power, it is necessary to regulate motor vehicle manufacturers, distributors, wholesalers and factory or distributor branches or representatives, and to regulate dealers of motor vehicles doing business in this State in order to prevent frauds, impositions and other abuses upon its citizens, to protect and preserve the investments and properties of the citizens of this State, and to provide adequate and sufficient service to consumers generally.”

Plaintiff maintains that the provisions set forth above and, indeed, the entire Act as amended, apply to govern the conduct of the parties based on the relationship created by the franchise agreement plaintiff entered into with Chrysler in 1971, some eight years prior to the Act’s effective date. Plaintiff argues that it would be illogical, especially in light of the Act’s declared purpose, to presume that the legislature intended the protection afforded by the Motor Vehicle Franchise Act to extend only to a handful of new dealers, namely, those that entered into franchise agreements after 1979. In refutation of this argument, defendant cites Marquette National Bank v. Loftus (1983), 117 Ill. App. 3d 771, 454 N.E.2d 11, and McAleer-Buick Pontiac Co. v. General Motors Corp. (1981), 95 Ill. App. 3d 111, 419 N.E.2d 608, claiming that these cases directly control the issue of retroactivity and that in both of them retroactive application of the Motor Vehicle Franchise Act was not permitted. While we agree with defendant that Marquette and McAleer are precedent for the proposition that the Motor Vehicle Franchise Act -will not be applied retroactively to impair vested contractual rights and that this judicial antecedent, while not controlling, is applicable to the instant case, we also agree with plaintiff that it would be illogical in light of the Act’s declared purpose to presume that the Act may never be applied to prohibit conduct that arises in connection with a pre-existing franchise agreement.

Plaintiff brought the instant action after the effective date of the 1979 Act and prior to the effective date of the 1983 amendment. The unamended statute provided that it is a violation of the Act for an automobile manufacturer to grant an additional franchise in the relevant “market area” previously granted to another franchisee. (Ill. Rev. Stat. 1981, ch. 121V2, par. 754(e)(8).) “Market Area” was and continues to be defined by the Act as the franchisee’s area of primary responsibility as defined “in its franchise.” (Ill. Rev. Stat. 1981, ch. 121V2, par. 752(p).) The 1971 direct dealer agreement entered into between plaintiff and defendant defined Fireside’s “area of primary responsibility” as follows:

SALES LOCALITY
“DIRECT DEALER will have the non-exclusive right, subject to the provisions of this agreement, to purchase from PLYMOUTH for resale at retail (or to other authorized Plymouth dealers) new Plymouth passenger cars and Plymouth passenger car parts and accessories in the following Sales Locality: THE AREA COVERED BY THE FOLLOWING POST OFFICE TOWNS,
BRANCH POST OFFICES OR SUBSTATIONS
STATE COUNTY TOWNS
Illinois Cook Hoffman Estates
Illinois Du Page Bloomingdale
Hlinois Du Page Itasca
Illinois Du Page Medinah
Illinois Du Page Roselle
Hlinois Cook Schaumburg.”

In September 1983, plaintiff received notice that Chrysler intended to grant to B.G.C.P. an additional franchise of the same line make in Buffalo Grove. In November 1983, the Illinois Motor Vehicle Franchise Act was amended to include the definition of “relevant market area.” (Ill. Rev. Stat., 1983 Supp., ch. 12V-k, par. 752(q).) Defendant concedes that were plaintiff to plead under the 1983 amendment, because Fireside’s “relevant market area” would then include Buffalo Grove, plaintiff could state a cause of action under the Act.

It is clear from the plain language of the 1971 direct dealer agreement that Buffalo Grove is not within plaintiff’s “area of primary responsibility” as defined by its franchise. As defendant points out, the only way Fireside would have standing under the Act to prevent a competing dealership from being established in Buffalo Grove is if this court were to retroactively apply the 1983 amendment, which defines “relevant market area” so as to broaden the scope of plaintiff’s agreed-on sales locality. Because such application would impair the vested contractual rights of the parties, we decline to do so.

A retroactive law has been defined as one that takes away or impairs vested rights acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability in respect to transactions or considerations already past. (United States Steel Credit Union v. Knight (1965), 32 Ill. 2d 138, 204 N.E.2d 4.) The legislature cannot pass a retroactive law that impairs the obligation of contracts or interferes with vested contractual rights. (Maiter v. Chicago Board of Education (1980), 82 Ill. 2d 373, 415 N.E.2d 1034, cert. denied, 451 U.S. 921, 68 L. Ed. 2d 312, 101 S. Ct. 2000.) A legislative enactment cannot be given retroactive effect in the absence of a clear expression of legislative intent to do so. (General Motors Corp. v. Industrial Com. (1975), 62 Ill. 2d 106, 338 N.E.2d 561.) Thus, in absence of express language declaring an amendatory act to be retroactive, it will ordinarily be construed as prospective. People ex rel. Saam v. Village of Green Oaks (1965), 55 Ill. App. 2d 51, 204 N.E.2d 149.

In McAleer Buick-Pontiac Co. v. General Motors Corp. (1981), 95 Ill. App. 3d 111, 419 N.E.2d 608, this court held that, under the facts of McAleer, application of the Illinois Motor Vehicle Franchise Act constituted an unconstitutional impairment of the obligation of contracts in violation of article I, section 10, of the United States Constitution and was therefore retroactive and improper. In reaching its decision, the McAleer court reasoned as follows:

“The rule against giving a statute retroactive application is grounded at least in part upon the constitutional guarantee against the impairment of the obligation of contracts — a guarantee that could be violated if a law enacted subsequent to a party’s acquiring constitutional rights were applied to that contract. [Citations]. Suffice it to say that requiring CMC to renew — perhaps for years — a. relationship which it had a contractual right not to renew would be a substantial impairment of GMC’s contractual rights, bringing into question the constitutionality of the [Motor Vehicle Franchise] Act.” (Emphasis added.) (95 Ill. App. 3d 111, 113-14, 419 N.E.2d 608.)

Similarly, in Marquette National Bank v. Loftus (1983), 117 Ill. App. 3d 771, 454 N.E.2d 11, this court held that the Act did not apply to a franchise agreement that pre-existed the statute, although the acts in question occurred after the effective date of the Act. Reasoning that retroactivity is defined in terms of the effect a law would have on vested contractual rights and not in terms of the time when a party happens to assert those rights, the Marquette court dismissed the claim alleging a violation of the Motor Vehicle Franchise Act as arising out of conduct governed by the franchise agreement.

Here, as in McAleer and Marquette, plaintiff urges retroactive application of the Act, as amended, to govern conduct that is clearly controlled by the express terms of the written franchise agreement. Application of the Act in this instance therefore impairs vested contractual rights acquired by the parties prior to the effective date of the Act and its amendments. Applying the 1983 definition of “relevant market area” would attach a new disability to Chrysler and B.G.C.R in respect to the transaction and considerations already passed, namely, the terms and conditions covered by the 1971 franchise agreement. Application of the Motor Vehicle Franchise Act under the facts at bar therefore constitutes an unconstitutional impairment of the obligation of contracts and impermissibly interferes with vested substantive rights. We therefore find that the able trial court properly granted summary judgment in favor of Chrysler and B.G.C.R

By our finding that application of the Motor Vehicle Franchise Act in this particular instance is retroactive and therefore impermissible, we do not, however, suggest that application of the Act to conduct arising from pre-existing franchise agreements will always be improper or retroactive. It is well established that a statute is not retroactive merely because it relates to antecedent events or draws upon antecedent facts for its operation. (United States Steel Credit Union v. Knight (1965), 32 Ill. 2d 138, 204 N.E.2d 4.) A retroactive law is one that impairs vested rights. A vested right is more than a mere expectation based upon an anticipated continuance of existing law; it must have become a fixed right, complete and consummated. (Griffin v. City of North Chicago (1983), 112 Ill. App. 3d 901, 445 N.E.2d 827.) If an existing law changes by amendment or repeal prior to the vesting of a right, no cause to object arises, and the application of that law to the complained-of conduct is not unconstitutionally retroactive. 112 Ill. App. 3d 901, 445 N.E.2d 827.

Chrysler, in stating that Buffalo Grove is not within Fireside’s “area of primary responsibility,” looks to the Act’s definition of “market area,” applies that definition, and concludes that pursuant to that definition, the Act was not violated by the granting of an additional franchise to B.G.C.P. in Buffalo Grove. By doing so, defendant implicitly acknowledges that the Act does apply to the 1971 franchise agreement, but because “market area” is defined in terms of the franchise agreement itself, it neither imposes a new duty nor attaches a new disability to defendant, and application of the term “market area” to the 1971 pre-existing agreement is not retroactive. Similarly, were either of the parties to engage in conduct that constituted an unfair practice under the Act, and said conduct was not governed by the terms of the pre-existing contractual agreement, application of the Act might not impair a vested contractual right and would not then be retroactive. In such instances the prohibited conduct governed by the Act is not “in respect of transactions or considerations already past” (Marquette National Bank v. Loftus (1983), 117 Ill. App. 3d 771, 454 N.E.2d 11), but merely relates to antecedent events or draws upon antecedent facts, namely, the pre-existing franchise agreement. (Sipple v. University of Illinois (1955), 4 Ill. 2d 593, 123 N.E.2d 722.) Under such circumstances, unlike under the circumstances of McAleer, Marquette National Bank, and the instant case, application of the Motor Vehicle Franchise Act may be prospective and therefore proper.

As plaintiff points out, the Illinois legislature, by the declaration of purpose set forth in the Motor Vehicle Franchise Act, has made clear its intent to “prevent frauds, impositions and other abuses upon its citizens” and “to protect and preserve the investments and properties of the citizens of this State.” (Ill. Rev. Stat., 1983 Supp., ch. 121V2, par. 751.1.) To effectuate this purpose, promote the public interest and welfare, and protect consumers generally, the Act must apply prospectively not only to those that entered into franchise agreements after June 1979, but to any person who engages, directly or indirectly, in business dealings with respect to motor vehicle franchises within the State. (Ill. Rev. Stat. 1981, ch. I2IV2, par. 753.) To do otherwise would allow those that entered into franchise agreements prior to the effective date of the Act to use those pre-existing agreements as immunity against the prohibition of unfair competition and practices imposed by the legislature. Pre-existing agreements would then serve to protect not the consuming public, the intended beneficiaries of the Act, but the wrongdoers that perpetrate the very evils which the Motor Vehicle Franchise Act is intended to eradicate.

We realize, however, that such circumstances are not present in the case at bar, and, under these facts, we find that application of the Motor Vehicle Franchise Act would be retroactive and therefore improper. Thus, finding retroactivity to be dispositive of the instant case, we need not reach the constitutional issues raised by defendant.

Accordingly, we affirm the decision of the trial court, granting summary judgment in favor of Chrysler and B.G.C.P.

Affirmed.

JOHNSON and JIGANTI, JJ., concur.


author: JUSTICE SULLIVAN

text:
    THE PEOPLE ex rel. DEPARTMENT OF HUMAN RIGHTS, Plaintiff-Ap-pellee, v. ARLINGTON PARK RACE TRACK CORPORATION, Defendant and Third-Party Plaintiff-Appellant (The Village of Arlington Heights et al., Third-Party Defendants-Appellants).
    First District (5th Division)
    No. 84—1179
    Opinion filed December 7, 1984.

      LeMoine D. Stitt, of Stitt, Moore & Lennon, of Rolling Meadows, for appellant Arlington Park Race Track Corp.
    Jack M. Siegel, of Chicago, for other appellants.
    Neil F. Hartigan, Attorney General, of Springfield (Kathryn A. Spalding, Assistant Attorney General, of counsel), for appellee.
   JUSTICE SULLIVAN

delivered the opinion of the court:

This interlocutory appeal, brought under Supreme Court Rule 307(a) (87 Ill. 2d R. 307(a)), is from an order in the nature of a preliminary injunction granted pursuant to section 7 — 104 of the Illinois Human Rights Act (the Act) (Ill. Rev. Stat. 1981, ch. 68, par. 7 — 104) enjoining defendant Arlington Park Race Track Corporation (Corporation), its successor Arlington Park Racetrack Limited (Limited), and third-party defendants the Village of Arlington Heights (Village) and the Illinois Racing Board (Board) from implementing any policy prohibiting children under the age of 14 from residing in the backstretch area at the Arlington Park Racetrack (Track) pending resolution by the Illinois Human Rights Commission (Commission) of proceedings on a complaint filed with the Illinois Department of Human Rights (Department) by certain persons who work at the Track during the racing season, in which it was alleged that such a policy would constitute a civil rights violation under section 3 — 104 of the Act (Ill. Rev. Stat. 1981, ch. 68, par. 3 — 104).

The Corporation, the Village, and the Board appeal, variously contending that (1) the motion for temporary injunctive relief filed by the Department (a) did not comply with the statutory requirements of section 7 — 104 of the Act governing such motions, and (b) failed to set forth any factual basis for granting the injunctive relief requested; (2) the trial court erred in issuing an injunction without (a) conducting any evidentiary hearings, or (b) setting forth the reasons for its order as is required by section 11 — 101 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 11 — 101); (3) no injunction could properly be issued against any of them because (a) not being respondents to the complaint filed with the Department, the Village and Board are not subject to the provisions of section 7 — 104; (b) the Department’s motion did not seek to enjoin the Village or Board, but was directed only against the Corporation; (c) the Corporation has sold the Track and no longer has any interest in or control of it; (d) Limited was not named in the original complaint nor has any motion been made to name it as a party defendant in lieu of or in addition to the Corporation; (4) the order was improper because (a) it required the Corporation to violate Village ordinances and Board rules without a preliminary determination by the trial court that those ordinances and rules were either invalid or superseded by the Act, and (b) it prevented the Village from exercising its police powers; (5) section 3 — 104(A) of the Act, which prohibits discrimination against families with children under the age of 14 in the rental of housing accommodations, is inapplicable to the situation at the Track because the subject units (a) are not “housing accommodations” within the meaning of the Act, and (b) are not rented, but are provided without charge to the occupants; and (6) the Corporation’s policy of prohibiting children from residing in the backstretch area is justified because it is rationally related to legitimate concerns for the health, safety and welfare of the children involved.

Although the underlying facts of this case are set out, in part, in People ex rel. Department of Human Rights v. Arlington Park Race Track Corp. (1984), 122 Ill. App. 3d 517, 461 N.E.2d 505, a prior interlocutory appeal in which we vacated an order permanently enjoining the Corporation from prohibiting children under 14 years of age from residing in the backstretch and remanded the cause for further proceedings, we think it necessary for an understanding of the issues presented here to briefly restate the pertinent facts and to recount a history of the litigation both prior to and since our previous opinion.

The Track, which is located within the Village limits, operates from May through September of each year and has traditionally provided dormitory housing facilities in an area of the Track commonly known as the backstretch for certain employees of trainers who have horses stabled at the Track during the five-month racing season. The dormitories consist of more than 600 rooms ranging in size from 80 to 206 square feet, the larger rooms being designated for double occupancy and the smaller for single occupancy. None of the rooms are equipped for cooking, and most are serviced by communal washroom and shower facilities. The rooms were allocated, without cost except for a refundable $75 damage deposit, to the trainers, who in turn assigned them — also without cost — to persons employed by them to care for the horses. The Track also maintained 16 two-bedroom trailers in an area removed from the backstretch, ostensibly for rental at a rate of $300 per month to those employees who were accompanied to the Track by their families. For a number of racing seasons prior to 1982, an average of 20 to 30 families, including 30 to 40 young children, lived in the dormitories on the backstretch, allegedly because off-track housing and on-track trailer-housing was either unaffordable or unavailable.

Although it appears that for several years the Corporation was aware that children were living in the dormitories on the backstretch, it took no action to remove or bar them therefrom until April 1982, when it notified the trainers that no children would be permitted to ■ reside there during the 1982 racing season. Shortly thereafter, certain employees who would be affected by the proposed exclusion of children filed charges with the Department alleging that, if implemented, the Corporation’s policy would constitute a violation of their civil rights under section 3 — 104(A) of the Act, which provides in part:

“It is a civil rights violation for the owner or agent of any housing accommodation to:
(A) Require, as a condition precedent to the rental of a housing accommodation, that the prospective tenant shall not have, at the time the application for rental is made, one or more children under the age of 14 years residing in his or her family.” (Ill. Rev. Stat. 1981, ch. 68, par. 3-104(A).)

The director of the Department then filed an action with the Commission, pursuant to section 7 — 104 of the Act, which provides in pertinent part:

“(1) At any time after a charge is filed, the department may petition the appropriate court for temporary relief, pending final determination of the proceedings under this Act, including an order *** restraining the respondent from doing or causing any act which would render ineffectual an order which the Commission may enter "with respect to the complainant. The petition shall contain a certification by the Director that the particular matter presents exceptional circumstances in which irreparable injury will result from a civil rights violation in the absence of temporary relief.
(2) The petition shall be filed in the circuit court for the county in which the respondent resides or transacts business or in which the alleged violation took place, and the proceedings shall be governed by ‘An Act to revise the law in relation to injunctions’ ***. Except as provided in subsection (A)(3), the court may grant temporary relief or a restraining order as it deems just and proper.
(3) When the petition is based upon a civil rights violation as defined in Article 3 of this Act, the relief or restraining order entered by the court shall not exceed 5 days unless:
(a) A longer period is agreed to by the respondent; or
(b) The court finds that there is substantial evidence to demonstrate that the respondent has engaged in unlawful discrimination.” Ill. Rev. Stat. 1981, ch. 68, par. 7 — 104(A).

In its prayer for relief, the Department requested a temporary restraining order, a preliminary injunction, and a permanent injunction restraining the Corporation from implementing its proposed policy to exclude children from the backstretch. On May 14, 1982, the trial court issued a temporary restraining order, which, by subsequent agreement of the parties, was to remain in effect until a final determination by the trial court on the Department’s request for a permanent injunction.

In its answer, the Corporation admitted that its policy was to prohibit children from living on the backstretch, but raised as affirmative defenses that (1) section 3 — 104(A) of the Act was inapplicable to the dormitories because they were neither “housing accommodations,” as defined in section 3 — 101(C) of the Act, nor rented to the employees; (2) its action was mandated by both Village ordinances and Board rules requiring, with certain specified exceptions, that only persons over 16 years of age who are licensed by the Board be permitted in the stable area of the Track; and (3) subsidized rental housing was available for families. The Corporation also filed third-party complaints against the Village and the Board, alleging that if it were required to allow children to reside in the backstretch dormitories, it would be subject to punitive actions by them, including fines and sanctions, and it requested that in the event the Department’s prayer for injunctive relief were granted, the Village and Board be enjoined from enforcing those ordinances and rules or imposing any such fines or sanctions. The trial court allowed the Corporation to file the third-party complaints but stated that they would be held in abeyance until its determination on the Department’s request for an injunction, and that responses by the Village and Board be deferred until further order of the court.

On May 20, 1983, after hearings on the Department’s motion, at which extensive testimony and exhibits concerning housing accommodations, health and safety conditions on the backstretch, Village ordinances and Board rules were presented by the parties, the trial court issued an oral order permanently enjoining the Corporation from implementing any policy prohibiting children under the age of 14 from residing in the backstretch dormitories. Approximately one month later, the Corporation filed a motion for a temporary restraining order, alleging that the Village had indicated its intention to enforce the occupancy provisions of the Village Code and that it (the Corporation) could not comply with those requirements without violating the terms of the injunction. It therefore requested that the Village be restrained from enforcing its ordinance. The trial court granted the motion, subject to the conditions that (1) all single rooms be restricted to occupancy by not more than three persons, either one adult and two children, or two adults and one child; and (2) all double rooms be restricted to no more than four persons, two of whom had to be children. The order was to remain in effect only for the duration of the 1983 racing season. Subsequently, on October 7, 1983, the trial court supplemented the May order with a written memorandum containing numerous findings of fact and conclusions of law and reiterated its May order in written form. No action was taken on the third-party complaint at that time.

After the Corporation had filed its notice of appeal from the above order, the parties realized that under section 7 — 104 of the Act the trial court had no power to enter a permanent injunction, since the statute provides for only temporary relief pending a final determination on the merits of the complaint filed with the Commission. They therefore asked this court to amend the order to provide for a preliminary injunction and to review it as such. We declined to do so, ruling that we could not rewrite the record to review an order which was never entered. Since the parties agreed that a permanent injunction should not have been issued, we vacated the order and remanded the cause for further proceedings. People ex rel. Illinois Department of Human Rights v. Arlington Park Race Track Corp. (1984), 122 Ill. App. 3d 517, 461 N.E.2d 505.

On remand, the Department filed a motion for temporary injunc-tive relief, requesting that Limited, which had purchased the Track from the Corporation, be enjoined from implementing any policy excluding children from residing on the backstretch. The Department noted the statement in our prior opinion, that the original temporary restraining order, entered by agreement with the Corporation, was still in effect, but asserted that the Corporation had indicated it would not agree to a continuation of that order because the Village had expressed its intention to enforce its housing ordinances. In responding to the motion, the Corporation maintained that it no longer owned or operated the Track and thus could no longer agree to continuation of the temporary restraining order; that the trial court lacked jurisdiction to grant the injunctive relief requested because no charges had been filed against Limited and no certification had been made by the director that the situation presented exceptional circumstances in which irreparable injury would result from a civil rights violation in the absence of temporary relief, as is required by sections 7 — 102 and 7 — 104 of the Act; that the validity of the various Village ordinances and Board rules — violation of which could result in substantial fines and/or suspension of the Track’s license — had never been determined, and it requested that if such injunction be issued against it, the Village and the Board also be enjoined from instituting any proceedings or imposing any fines or sanctions against it by reason of its compliance with the court’s order.

Although the Department’s motion requested no injunction against it, the Village also filed a response in opposition thereto, arguing that absent a complaint against it and a certification by the director of the Department as to the necessity for temporary relief, the court had no jurisdiction to grant such relief; that the Department’s motion did not allege sufficient facts to warrant an injunction; that the authority of the trial court to grant temporary relief pending final determination of proceedings relating to alleged civil rights violations does not apply to municipalities or to the enforcement of their ordinances; that it was not a party to prior hearings by express direction of the court and therefore it was not bound by the evidence presented; and that the Village was entitled to a full hearing with respect to the validity of its ordinances.

The Board then filed an answer to the Corporation’s third-party complaint, filed in 1982, admitting that its rules restricted access to the backstretch to only licensed or authorized personnel and that children under the age of 14 may be admitted to that area only if they sign a register when entering and leaving. The Board also asserted that section 3 — 104(A) of the Act was inapplicable to the dormitories, and that it planned to adopt a rule to prevent the residence of children aged 12 or under on the backstretches of thoroughbred racetracks.

After arguments on the motion, but without further evidentiary hearings, the trial court entered a written order enjoining the Corporation, Limited, the Village, and the Board from taking any action to prohibit children under the age of 14 from residing on the backstretch until a final determination by the Commission on the Department’s complaint against the Corporation, and this appeal followed.

Opinion

Although the issues presented for review are numerous and seemingly complex, in our view disposition of this appeal turns on relatively few and simple considerations. First, as to the propriety of the injunction against the Corporation, it appears — as noted above — that at some point between issuance of the permanent injunction which we vacated in the prior appeal and the Department’s motion for a preliminary injunction at the proceedings upon remand, the Corporation sold the Track to Limited and thereupon ceased to conduct business in this State. It is clear, then, that having no interest in or control over the Track at the time the preliminary injunction was issued, as a practical matter the Corporation could no longer do what it was enjoined from doing; i.e., implementing any policy prohibiting children from residing on the backstretch, and that although it was still named as a defendant in the action, the injunction against it, which could neither be enforced nor violated, was therefore meaningless and should not have been issued.

Moreover, it is the general rule that an injunctive order should be no broader in scope than the relief requested in the pleadings. (George J. Priester Aviation Service, Inc. v. American School of Aviation, Inc. (1981), 95 Ill. App. 3d 703, 420 N.E.2d 615; Cook County v. Rosen & Shane Wine & Spirits, Inc. (1978), 58 Ill. App. 3d 744, 374 N.E.2d 838.) A review of the record of the proceedings upon remand of the instant case discloses that in its written motion for a preliminary injunction, the Department sought only to enjoin Limited, as successor to the Corporation, from excluding children from the backstretch housing. No such injunction was sought against the Corporation, and counsel for the Department acknowledged at oral arguments on this appeal that there was no basis for an injunction against the Corporation at the time it was issued, and conceded that it should not have been entered. We also note that despite its continued, albeit unexplained, participation in and defense of this case, both in the trial court and on appeal, it is clear that after selling the Track, the Corporation was no longer involved in this controversy and thus had no reason to argue against the injunction and no standing to raise defenses thereto, which — even if valid — would properly belong to Limited.

Having determined that the injunction against the Corporation was improvidently granted and therefore must be vacated — notwithstanding the fact that even if it had gone unchallenged it would have been of no force or effect — it follows that the injunctions against the Village and the Board must also be vacated, since it was the Corporation, not the Department, which requested in its third-party complaints that they be enjoined to protect it from potential actions by the Village and Board for violations of their respective ordinances and rules by reason of its compliance with the court’s order enjoining it from barring children from backstretch housing. As stated above, since the Corporation no longer owns the Track, it is incapable of implementing any policy which would violate those ordinances and rules, and subsequently, the bases for the injunctions against the Village and the Board no longer exist.

Nevertheless, the Department argues that these injunctions should remain in effect so as to prevent the Village and Board from attempting to prohibit children from living on the backstretch by enforcing their ordinances against Limited. Initially, we note that a preliminary injunction is an extraordinary remedy which should be granted only where the party seeking it establishes a clear right to such relief. (Best Coin-Op, Inc. v. Old Willow Falls Condominium Association (1983), 120 Ill. App. 3d 830, 458 N.E.2d 998; Scott & Fetzer Co. v. Kahn (1979), 74 Ill. App. 3d 400, 393 N.E.2d 102.) Section 7-104 of the Act sets out the requirements necessary to establish entitlement to temporary relief in an action involving allegations of civil rights violations. It provides, in substance, that after a charge is filed with the Commission, the Department may petition the circuit court for temporary relief to restrain the respondent from doing any act which may render ineffectual a final order of the Commission. The petition must contain a certification by the director of the Department that the matter presents circumstances in which irreparable injury will result from a civil rights violation absent the requested temporary relief. Any order granting such relief may not exceed five days unless a longer period is agreed to by the respondent or the court finds there is substantial evidence to demonstrate that the respondent has engaged in unlawful discrimination. Ill. Rev. Stat. 1981, ch. 68, par. 7 — 104.

Here, the only party named as a respondent in the Department’s complaint was the Corporation, which, by the time the preliminary injunction was requested, was no longer the owner of the Track and not a real party in interest in this action. There is nothing in the record to indicate that the Department attempted to substitute or add Limited to or include the Village and Board as respondents to the complaint. Therefore, under section 7 — 104, it was not — and is not now — entitled to an injunction against them.

For the reasons stated the portions of the trial court’s order issuing preliminary injunctions against Arlington Park Race Track Corporation, the Village of Arlington Heights, and the fflinois Racing Board are vacated, and the cause is remanded for further proceedings not inconsistent with the content of this opinion.

Vacated in part and remanded.

MEJDA, P.J., and PINGHAM, J., concur.

      For purposes of this appeal, the Board has adopted the brief submitted by the Village.

      The parties informed us at oral arguments that no determination has as yet been made by the Commission on the complaint.

      Inasmuch as Limited has not attempted to bring an appeal under Supreme Court Rule 307(b) (87 Ill. 2d R. 307(b)) from the injunctive order entered against it, we make no determination as to the propriety thereof.


text:
    PATRICIA LECK et al., Plaintiffs-Appellees, v. RONALD MICHAELSON, Director, Illinois State Board of Elections et al., Defendants-Appellants.
    First District (2nd Division)
    No. 83—3000
    Opinion filed December 18, 1984.
    Rehearing denied January 16, 1985.

      Neil F. Hartigan, Attorney General, of Springfield, and David A. Epstein and Gary A. Weintraub, both of Chicago (James Scanlon and James Tenuto, Special Assistant Attorneys General, of counsel), for appellant Ronald Mi-chaelson.
    Richard M. Daley, State’s Attorney, of Chicago (Joseph L. Ponsetto, Assistant State’s Attorney, of counsel), for appellant Stanley Kusper.

      Law Office of Edward J. Hanley, of Lansing, for appellants Louis La Mourie, John W. Eggert, and Marguerite L. Kelsven.
    Gorman & Gorman, of Chicago (Gregory X. Gorman and H. Candace Gorman, of counsel), for appellees.
   JUSTICE PERLIN

delivered the opinion of the court:

This case presents constitutional issues of first impression relating to Illinois election law. Plaintiffs are voters residing in the village of Lansing (village). Plaintiff Leek was also a candidate for the office of village trustee in the 1983 village election. Defendants Malkas, Eggert and Kelsven were likewise candidates for village trustee in that election. Plaintiffs brought this action in the Cook County circuit court, requesting the court to direct the village to conduct a runoff election for the office of trustee, pursuant to the provisions of village ordinance No. 539 (the ordinance).

Defendants argued that no runoff election should be held. They urged the trial court to hold the ordinance invalid on the ground that the village — a home rule unit— was without authority to enact such ordinance because the 1970 Illinois Constitution made the regulation of election procedures a State, not a home rule, function. Defendants claimed that the ordinance conflicted with controlling State statutes. Defendants also contended that the ordinance was invalid because it had not been “approved by referendum” within the meaning of the Constitution.

The record presents the following facts. In April 1979, the village held a referendum on the proposition:

“Shall a run-off election be held for any candidates for public office in the Village of Lansing who do not receive fifty percent (50%) of the votes cast for that office.”

The proposition carried. Thereafter, the village board drafted and, in July 1979, passed the ordinance which purported to “implement” the referendum proposition. Defendant Mayor La Mourie vetoed the ordinance. The village board overrode the mayor’s veto, and the ordinance took effect in September 1979.

The ordinance, some five pages in length, requires that in order to be elected to the position of village president, clerk or trustee, a candidate must “receive fifty percent of the votes cast at an election held for those respective offices ***.” If the office is not won by a candidate with at least 50% of the vote, the ordinance calls for a runoff election to determine the winning candidate.

Runoff elections are scheduled by the ordinance for “4 weeks after the regular municipal election.” In a section entitled “Procedures for Conducting a Run-off Election,” the ordinance addresses such items as the time polls will be open; determining tie votes; ballots; publication of notices; candidate ballot positions; and prohibits the replacement of a candidate who withdraws from a runoff election.

In April 1983, election was held for several village offices, including three village trustee positions. Eight candidates vied for the three trustee seats. “Ballot applications” were filed by 3,516 voters. Each voter was entitled to cast three non-cumulative votes for trustee candidates. Thus, the maximum possible number of votes which could be cast for trustee candidates was 10,548 (three votes by each of the 3,516 voters). The number of votes actually cast for trustee candidates was 9,702, as follows:

Eisha..................... 1,821

Eggert.................... 1,617

Kelsven................... 1,303

Leek...................... 1,266

Malkas.................... 1,203

Imes...................... 854

Swansey.................. 845

Substalea.................. 793

Pursuant to certification of the above vote totals, candidates Eisha, Eggert and Kelsven were declared to be the elected trustees, and they were sworn into office.

Plaintiffs then instituted this action, alleging that the ordinance mandated a runoff election because none of the trustee candidates had received 50% of the “votes cast at the election for that office.”

The case was presented to the trial court on the pleadings, memo-randa of law and stipulated facts. In a memorandum decision, the trial court held that under its home rule power the village had authority to establish the 50% majority requirement for election; to prescribe the runoff election system to effect the 50% majority; and to schedule runoff elections four weeks after the “regular” village election, notwithstanding the fact that such schedule conflicted with the “consolidated election schedule” in the State Election Code. The trial court held invalid those provisions of the ordinance which purport to establish “Procedures” for conducting a runoff election, holding that these aspects of election law are controlled by State statute. The court also upheld the referendum procedure whereby the ordinance was “approved” by the village voters, even though the court noted that “certain provisions of the ordinance are outside the authorization of the referendum.”

Applying the ordinance to the 1983 village trustees election, the trial court determined that the number of “votes cast” for the office of trustee was 3,516 (the number of voters who requested ballots at the election) and on that basis found that only candidate Eisha had garnered the necessary 50% majority. The court ordered defendants Eggert and Kelsven removed from office, and directed that a runoff election for the resultant two trustee vacancies be held between the four remaining candidates with the highest vote totals. The court also denied plaintiffs’ request for attorney fees and stayed its order pending this appeal.

Defendants appeal from those portions of the court’s order which upheld sections of the ordinance and the village’s referendum procedure. Plaintiffs cross-appeal from the denial of their request for attorney fees.

Resolution of the issues raised in this case compels consideration of several provisions of the 1970 Illinois Constitution. The concept of home rule delineated in the 1970 Constitution altered drastically the relationship between State and local governments. Previously, local governments were limited to the exercise of only those powers granted to them by the General Assembly. Now, home rule units are granted wide autonomy in the conduct of their government and affairs. To accomplish such independence, the Constitution accorded substantial authority to home rule units, subject only to the restrictions imposed or authorized in the Constitution. See Kanellos v. County of Cook (1972), 53 Ill. 2d 161, 290 N.E.2d 240.

We consider first the validity of the village ordinance.

I

The Ordinance

We find distinct those provisions of the ordinance which (A) establish a 50% majority vote requirement for election to village office and a runoff election system to implement such requirement; and (B) those provisions which set the runoff election schedule and define the runoff election “procedures.”

A

We agree that the village of Lansing, as a home rule unit, is empowered to establish a 50% majority vote requirement for election to village office, and to adopt a runoff election system to achieve such requirement. Article VII, section 6(f), of the Constitution provides, in part:

“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.” (Emphasis added.)

In Boytor v. City of Aurora (1980), 81 Ill. 2d 308, 410 N.E.2d 1, the Illinois Supreme Court held that “the power to choose the ‘manner of selection’ should include the ability to decide by referendum whether the election of officers should be on a partisan or nonpartisan basis.” (81 Ill. 2d 308, 314.) We believe that this constitutional provision includes also the ability to decide that officers should be elected by a 50% majority, and to establish a runoff election system to effect the 50% majority requirement. We hold therefore that these provisions of the ordinance are within the village’s home rule authority.

B

We find that the remaining provisions of the ordinance — which govern the schedule and procedures for the runoff elections — give rise to a different conclusion. Article VIII, section 6(a), of the Constitution provides, in part:

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

Article VII, section 6(m), mandates that “[p]owers and functions of home rule units shall be construed liberally.” Plaintiffs maintain that the regulation of procedures and schedules for local elections “pertains to” Lansing’s government and affairs. Defendants respond that the Constitution makes election laws and voting procedures a State, not a home rule, function.

The Illinois Supreme Court has said that the phrase “pertaining to” limits the scope of home rule powers.

“The late Professor David C. Baum, counsel to the convention’s local government committee, stated that the most general and uncertain limitation upon home rule power is found in the language of the home rule grant itself. *** ‘[T]he question is not whether the “pertaining to ***” language should limit the home rule grant, but rather how extensive the limitation should be.’
The local government committee, explaining the intended extent of this limitation, stated in its report to the constitutional convention, ‘It is clear, however, that the powers of home rule units relate to their own problems, not to those of the state or the nation. *** Thus the proposed grant of powers to local governments extends only to matters “pertaining to their government and affairs.” ’ [Citation.]” Ampersand, Inc. v. Finley (1975), 61 Ill. 2d 537, 540, 338 N.E.2d 15.

Whether a particular power or function is one accorded to home rule units is to be determined by the courts. (Ampersand, Inc. v. Finley (1975), 61 Ill. 2d 537, 338 N.E.2d 15.) The question, therefore, is whether under our constitution the power to schedule elections and to enact election procedures “pertains to” local government and affairs or belongs to the State. In resolving similar conflicts, the supreme court has examined other constitutional provisions. Where the Constitution establishes statewide policy or gives jurisdiction over a subject to the General Assembly, the court has found home rule authority to be restricted, or denied.

In Ampersand, the court struck down a home rule ordinance which sought to impose a $2 filing fee in civil court cases. The court held that a home rule unit was without authority to so act because article VI of the Constitution created a single statewide unified court system, which established “the dominant interest which the State has in the administration of justice.” Ampersand, Inc. v. Finley (1975), 61 Ill. 2d 537, 543. See also City of Carbondale v. Yehling (1983), 96 Ill. 2d 495, 451 N.E.2d 837.

In Bridgman v. Korzen (1972), 54 Ill. 2d 74, 295 N.E.2d 9, the court held invalid a home rule ordinance enacted by the board of commissioners of Cook County purporting to authorize Cook County to collect property taxes in four installments instead of two. “We find no provision in the constitution of 1970 or in the proceedings of the [constitutional] convention which leads us to believe that the collection of property taxes is a home-rule power or function ***.” (54 Ill. 2d 74, 78.) In Board of Education v. City of Peoria (1979), 76 Ill. 2d 469, 476, 394 N.E.2d 399, the court held that article X, section 1, of the Constitution granted the State “plenary power over the Illinois school system” and, on that basis struck down the application of a city tax to school districts because such would “constitute an unauthorized regulation of the school district” by a local government. 76 Ill. 2d 469, 476, 477.

In County of Cook v. John Sexton Contractors Co. (1979), 75 Ill. 2d 494, 389 N.E.2d 553, the court held that because article IX of the Constitution provides that the “public policy of the State” is to provide a “healthful environment” and the “General Assembly shall provide by law for the implementation and enforcement of this public policy,” the State had primary authority over environmental matters and therefore any legislation by local governments must “conform” to the standards set by the State. In People ex rel. Lignoul v. City of Chicago (1977), 67 Ill. 2d 480, 368 N.E.2d 100, the court held invalid a home rule ordinance which in effect authorized branch banking. The court held that under article XIII, section 8, of the Constitution, “only the General Assembly may make branch banking possible ***.” 67 Ill. 2d 480, 485.

On the other hand, in upholding the city’s authority to enact a comprehensive landlord-tenant ordinance in City of Evanston v. Create, Inc. (1981), 85 Ill. 2d 101, 110, 421 N.E.2d 196, the court found no “constitutional mandate in the realm of landlord-tenant relationships” which would bar the city from exercising that power.

With respect to the regulation of election laws and procedures, article III, section 4, of the Constitution (the uniformity clause) provides:

“The General Assembly by law shall define permanent residence for voting purposes, insure secrecy of voting and the integrity of the election process, and facilitate registration and voting by all qualified persons. Laws governing voter registration and conduct of elections shall be general and uniform.” (Emphasis added.)

The constitutional convention proceedings indicate that the drafters considered the regulation of election procedures to be a statewide, not a local, concern. The report of the convention’s Committee on Suffrage and Constitutional Amending notes:

“The requirement that the laws be general and uniform reflects the committee’s judgment that voting is properly a subject of state interest in the first instance, and therefore the laws relating thereto should be statewide in application. *** Areas where the principle of general and uniform laws would seem to have particular application, in the view of some of the witnesses who testified before the committee, would include *** [ejection day procedures ***.” 7 Record of Proceedings, Sixth Illinois Constitutional Convention 2353-55.

Professor Baum also has written that the uniformity clause demonstrated that the enactment of election laws was not to be a function of home rule units.

“Actually, a fourth area of control over municipal structure is found in section 4 of Article III, Suffrage and Elections. That section requires the General Assembly to regulate elections by general and uniform election legislation. Election laws therefore seem to fall entirely within the jurisdiction of the legislature rather than that of home rule units or their voters.” Baum, A Tentative Survey of Illinois Home Rule (Part I): Powers and Limitations, 1972 U. Ill. L.F. 137,146 n.37.

Further indication that the framers intended the regulation of elections to be a power reserved to the State is found in article III, section 5, of the Constitution which provides, in part:

“A State Board of Elections shall have general supervision over the administration of the registration and election laws throughout the state.”

The Illinois Supreme Court has stated that the uniformity clause “refers to the mechanics of voter registration, residency requirements and other election and voting procedures.” Totten v. State Board of Elections (1980), 79 Ill. 2d 288, 295, 403 N.E.2d 225.

We conclude that under our constitution the power to regulate elections is reserved to the State; and actions in this area by local governments must conform with State law.

The General Assembly has enacted general and uniform election laws. Between 1977 and 1980 the General Assembly, in a series of amendatory enactments collectively referred to as the election consolidation legislation (ELCO), revised the State Election Code (Ill. Rev. Stat. 1981, ch. 46) and amended and repealed various election statutes found in other acts. ELCO created a comprehensive election system which coordinated the laws, scheduling, procedures and administration for all elections to be held in this State. Section 1 — 1 of the Election Code provides:

“This Act shall be known and may be cited as The Election Code. This Act is the general law of Illinois and any reference in any other Act to ‘the general election law’ or ‘the general election law of this State’ is a reference to this Act, as now or hereafter amended.” Ill. Rev. Stat. 1983, ch. 46, par. 1 — l.

The Election Code addresses, inter alia, the scheduling of all Illinois elections (art. 2A); qualifications of voters (art. 3); registration of electors (arts. 3, 4, 5 and 6); nominations by political parties (art. 7); the making of campaign contributions and campaign expenditures (art. 9); ballots and ballot boxes (arts. 15 and 16); conduct of elections (arts. 17 and 18); canvassing votes (art. 22); contesting election results (art. 23); voting systems (arts. 24 and 24A); and the submission of public questions to voters (art. 28).

With regard to the scheduling of elections, section 2A — 1 of the Election Code provides, in relevant part:

“(a) No public question may be submitted to any voter in this State, nor may any person be nominated for public office or elected to public office or political party office in this State except pursuant to this Code, notwithstanding the provisions of any other statute or municipal charter ***.
(b) All elections in this state shall be held in accordance with the consolidated schedule of elections established in Sections 2A — 1.1 and 2A — 1.2. No election may be held on any date other than a date on which an election is scheduled under Section 2A-1.1 ***.” Ill. Rev. Stat. 1983, ch. 46, par. 2A-1.

The Election Code provides for a “consolidated schedule” of five elections each biennium; two in even-numbered years (a “general primary” and “general election”) and three in odd-numbered years (a “consolidated primary” in February; “consolidated election” in April; and a “non partisan election” in November. (See section 2A — 1.1 of the Election Code.) Municipal elections are held in odd-numbered years. We find that the consolidated election schedule does not allow for the village of Lansing to schedule an “extra” runoff election “4 weeks after the regular municipal election.”

While we have no quarrel with the authority of the village of Lansing to require candidates to receive a 50% majority vote in order to be elected, and a runoff election system to implement that requirement, such system must be effectuated in conformance with the State election schedule and election procedures.

In view of our disposition of this case, we do not reach the argument of the State Election Board that even if it were found that home rule powers included authority over local election laws and procedures, the General Assembly’s enactment of the aforestated election statutes resulted in an implied “pre-emption” of such home rule power.

There remains the question of whether the invalidity of some portions of the ordinance render the entire ordinance invalid. While the ordinance here contains a severability clause, its presence is not controlling.

“Although the ordinance contains a severability clause, its presence is not necessarily conclusive as to whether the remainder of the ordinance can stand. [Citation.] ***.
As stated by this court, the general test in determining whether an invalid part of a statute is severable so that the remainder of the statute may stand is as follows: ‘If what remains after the invalid portion is stricken is complete in itself and capable of being executed wholly independently of that which is rejected, the invalid portion does not render the entire section unconstitutional unless it can be said that the General Assembly would not have passed the statute with the invalid portion eliminated.’ [Citations].” Commercial National Bank v. City of Chicago (1982), 89 Ill. 2d 45, 73, 432 N.E.2d 227.

In the instant case we believe that the valid portions of the ordinance (establishing the 50% majority requirement and runoff election system) may be severed from the invalid portions. We therefore uphold those provisions. Section 5 of the ordinance, which sets forth the runoff election schedule and procedures, is invalid due to its conflict with the State Election Code.

Defendants next contend that the trial court erred in the manner in which it applied the 50% majority requirement to the 1983 village trustees’ election. We agree.

As noted, the ordinance provides that election to village office requires that candidates “must receive fifty (50) percent of the votes cast at an election held for those respective offices.” With reference to trustees, the ordinance states that “in the event that all, or some, of the candidates for the office of Village Trustee do not receive fifty (50) percent of the votes cast at the election held for that office, then a runoff election shall be conducted ***.” (Emphasis added.) In defining the 50% majority the trial court did not consider the number of “votes cast” but considered instead the number of persons who requested ballots at the election. However, the ordinance requires that the “votes cast,” not the number of voters, be employed to determine whether a candidate has reached the 50% majority.

In single-office elections (such as for the office of mayor or clerk), the 50% requirement is easily determined; the total votes tallied by all of the candidates for that office are added together and divided by two. In multiple-office field elections, the same method of determining the 50% mark cannot be used. In the trustees’ election eight candidates vied for three trustee offices; each candidate competes with all of the other candidates for any of the three offices. There is no distinct vote for any specific trustee’s office; all of the votes are commingled. There is thus no way to identify the votes cast for any specific office.

We believe that the only manner in which the intent of the Lansing referendum and ordinance may be realized in multi-office field elections is to determine the average vote cast for each office in issue. Thus, by adding the total number of votes cast for all trustee candidates (here, 9,702) divided by the number of offices to be filled (here, three) results in the average vote actually cast for each trustee’s office to be filled (here, 3,234). Dividing that number by two results in a number reflecting 50% of the average vote for each office to be filled (here, 1,617). While this is an averaging technique, we believe that in the absence of a more specific workable method, it is the only tallying procedure which is practical, feasible and analogous to the 50% calculation employed in single-office elections.

By this method of calculation, both candidates Eisha and Eggert received the 50% majority vote for election to village trustee. We hold, therefore, that candidate Kelsven failed to gather the 50% majority required, and that a runoff election need be held for the remaining trustee vacancy between the two candidates with the highest vote totals: Kelsven and Leek.

II

The Referendum

Defendants contend that irrespective of the authority of the village ■ to enact an ordinance of the character of No. 539, it should be held invalid because it was not “approved by referendum” as required by the Constitution. Article VII, section 6(f) (the referendum clause), provides, in part:

“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.” (Emphasis added).

The referendum proposition approved by the village voters here was:

“Shall a run-off election be held for any candidates for public office in the Village of Lansing who do not receive fifty percent (50%) of the votes cast for that office.”

Defendants contend that the voters only “approved” the concepts of a 50% majority requirement and a runoff election system. To the extent that the ordinance subsequently enacted includes other provisions, they claim the requisite voter approval was not obtained. Defendants posit that the referendum clause requires that an ordinance needing voter approval be first drafted and then submitted to the voters at a referendum and not, as here, a situation where the voters initially approve a concept from which an “implementing” ordinance is then fashioned. Because we hold that these allegedly “unapproved” provisions of the ordinance are invalid as beyond the scope of home rule powers, we do not address the issue of whether these same provisions are invalid also on the further ground that they were not approved in a manner consistent with the referendum clause of the Constitution.

Ill

Attorney Fees

Plaintiffs cross-appeal from the trial court’s denial of their request for attorney fees. Plaintiffs’ request was made pursuant to the Federal Civil Rights Attorneys Fees Award of 1976 (42 U.S.C. sec. 1988). A trial court’s determination with regard to the award of attorney fees will be disturbed on review only in the event the court is found to have abused its discretion. Stein v. Feldmann (1980), 85 Ill. App. 3d 973, 407 N.E.2d 768.

In Caputo v. City of Chicago (1983), 113 Ill. App. 3d 45, 446 N.E.2d 1240, this court held that:

“*** State courts should award attorney fees under 42 U.S.C. sec. 1988 (1976) only in the following instances: (1) where Federal statutory or constitutional law is the basis for a decision in favor of a claimant, or (2) where Federal law remains intimately involved in the case until a settlement or consent decree is entered into.” (113 Ill. App. 3d 45, 48.)

We find that neither basis for an ¿ward of attorney fees under this statute is here present, and so we affirm the trial court’s denial of fees.

Summarizing, we hold that the regulation of election procedures is, under the Illinois Constitution of 1970, a power granted to the State, and not to local governments. We therefore hold invalid those provisions of Lansing ordinance No. 539 which conflict with the election schedules and procedures set forth in the State Election Code. We hold that the village of Lansing is constitutionally empowered to require a 50% majority vote for election to village office, and to implement a runoff election system to effect the 50% requirement; those provisions of Lansing ordinance No. 539 so providing are upheld. We find that trustee candidates Eisha and Eggert received the requisite 50% majority, and were thus elected to the office of Lansing village trustee; candidate Kelsven did not receive the requisite 50%. Kelsven must therefore be removed from office, and a runoff election should be held for the remaining vacant trustee’s office between Kelsven and Leek. We affirm the trial court’s denial of attorney fees to plaintiffs.

Affirmed in part, reversed in part, and remanded to the trial court for further proceedings consistent with this opinion.

HARTMAN, P.J., and DOWNING, J., concur.

      Plaintiffs initially filed this action in the United States District Court, where it was dismissed by Judge Roszkowski on abstention grounds. The court noted that this case presented State constitutional issues of first impression and recognized its potential impact on Illinois election law. Leck v. Michaelson, No. 83 C 2823, N.D. Ill., May 26, 1983.

      With respect to the office of village trustee, the ordinance provides:

        “Section U- In the event that all, or some, of the candidates for the office of Village Trustee do not receive fifty (50) percent of the votes cast at the election for that office, then a run-off election will be conducted, as is hereafter provided, as follows:
      (a) If none of the candidates for Village Trustee receive fifty (50) percent of the votes cast at the election for that office, then a run-off election will be conducted among the candidates who receive the largest number of votes cast at the regular municipal election, not to exceed two (2) candidates for each office to be filled. The candidates receiving the highest number of votes in that election for the number of offices available shall be elected to the office of Trustee.
      (b) If one or more of the candidates for Village Trustee receives fifty (50) percent of the votes cast at the election for that office, any such candidate shall be elected to the office of Trustee. If there are any candidates not elected, and if any offices for Trustee remain unfilled, then a run-off election will be conducted among the remaining candidates who receive the largest number of votes cast at the regular municipal election, not to exceed two (2) candidates for each office to be filled. The candidates receiving the highest number of votes in that election for the number of offices available shall be elected to the office of Trustee.”

      The facts presented to the trial court and to this court are woefully sparse. For example, the ordinance provides: “Rules, regulations and ordinances of the Village of Lansing which apply to regular municipal elections shall also apply to any run-off election in the Village of Lansing.” However, such rules, regulations and ordinances are not contained in the record.

      ELCO resulted in major revisions to the election provisions of the Illinois Municipal Code (Ill. Rev. Stat. 1983, ch. 24, par. 1 — 1—1 et seq.). Section 3 — 2—2 therein provides in part: “The schedule, manner of conducting, voting at, and contesting municipal elections shall be as provided in the general election law [i.e., the Election Code].” Ill. Rev. Stat. 1983, ch. 24, par. 3-2-2.

      Previous court decisions have required local governments to adhere to the consolidated election schedule. Korte-Reinheimer v. City Council (1981), 94 Ill. App. 3d 219, 418 N.E.2d 783; Chicago Ridge Park District v. Oak Lawn Park District (1983), 112 Ill. App. 3d 364, 445 N.E.2d 494.

      With reference to the Election Code’s schedule for municipal elections, section 2A — 1.2 provides in part:
      “(c) At the consolidated election in the appropriate odd-numbered years, the following offices shall be filled:
      (1) Municipal officers, provided that in municipalities in which candidates for alderman or other municipal office are not permitted by law to be candidates of political parties, the runoff election where required by law, or the nonpartisan election where required by law, shall be held on the date of the consolidated election; and provided further, in the case of municipal officers provided for by an ordinance providing the form of government of the municipality pursuant to Section 7 of Article VII of the Constitution, such officers shall be filled by election or by runoff election as may be provided by such ordinance;
      * ** *
      (d) At the consolidated primary election in each odd-numbered year, candidates of political parties shall be nominated for those offices to be filled at the consolidated election in that year, except where pursuant to law nomination of candidates of political parties is made by caucus.
      At the consolidated primary election in the appropriate odd-numbered years, aldermen shall be elected in municipalities in which candidates for alderman are not permitted by law to be candidates of political parties, subject to runoff elections to be held at the consolidated election as may be required by law, and municipal officers shall be nominated in a nonpartisan election in municipalities in which pursuant to law candidates for such office are not permitted to be candidates of political parties.
      At the consolidated primary election in the appropriate odd-numbered years, municipal officers shall be nominated or elected, or elected subject to a runoff, as may be provided by an ordinance providing a form of government of the municipality pursuant to Section 7 of Article VII of the Constitution.”

      As a practical matter, it appears that the village could effectuate its runoff election system within the present consolidated election schedule. For example, the village could eliminate the use of the February “consolidated primary” date for party primaries by adopting either a nonpartisan format or by retaining the partisan format but substituting party caucuses for primaries. The village could then use the February election date for its general election and the April “consolidated election” date for any required runoff election. Such actions seem consistent with the applicable State statutes. See, e.g., Boytor v. City of Aurora (1980), 81 Ill. 2d 308, 410 N.E.2d 1.

      We note, however, our disagreement with the premise of the State Election Board that every action by the State in a given area connotes its automatic pre-emption of all home rule powers in that area. Article VIII, section 6(h), allows the General Assembly to “provide specifically by law for the exclusive exercise by the State” of home rule powers. Section 6(i) of the same Article allows home rule units to exercise concurrently with the State any home rule function “to the extent that the General Assembly does not specifically limit the concurrent exercise” of such power or “specifically declare the State’s exercise to be exclusive.” (Emphasis added.) Thus, contrary to the Board’s contention, we believe the Constitution requires that preemption of home rule powers by the State must be explicitly set forth, not merely inferred by the courts. See Stryker v. Village of Oak Park (1976), 62 Ill. 2d 623, 343 N.E.2d 919.

      It should be noted that these referendum powers have been granted to all municipalities; both home rule (art. VII, sec. 6(f)) and non-home-rule (art. VII, secs. 7(2) and (3)) and to all counties, whether home rule or non-home-rule (art. VII, sec. 4(c)). See Pechous v. Slawko (1976), 64 Ill. 2d 576, 357 N.E.2d 1144.

      Defendants’ concern with the ramifications of referenda procedures which initially “approve” a concept which is subsequently “fleshed out” in legislation, is bolstered by the instant case. While the Lansing referendum approved the two concepts involved, the ordinance resulted in other fundamental changes in the village structure. For example, the voters could not know at the time the referendum was acted upon that the subsequent ordinance would forbid the replacement of a candidate who withdrew from a runoff election.

       JUSTICE DOWNING participated in the decision of the above-captioned case before the expiration of his term in office.