dissenting:
The majority, in my view, have chosen to disregard the clear meaning of words used in an ordinance. The special use was extremely limited. It was confined to a “private nursing and convalescent center”; it further narrowed the grant by specifically stating that the use “shall not be converted to a hospital, nor to [a mental institution] * * although in granting the special use the village had expressly provided that the nursing and convalescent home was being allowed under the special use provision of the general ordinance designated as “[H]ospitals or Sanatoriums” (Village Ordinance No. 861, §25 — 10(A) (h)). And to make even more clear the narrowness of the grant, the village provided against a more intensive or expanded use even as a private nursing and convalescent home by stating that it shall operate “under the same or similar conditions” as those existing at the time of the annexation. And then to make its intention even more clear it limited the term of the permit to “as long a period of time as the property is being used for present nursing home and convalescent purposes.” (Emphasis added.)
From this the majority concludes that anything similar to a nursing and convalescent home is permitted under the special use and that it is therefore unnecessary to require compliance with procedures to secure a change in the ordinance, including a hearing at which the adjoining property owners, who have at all times objected to the use, may be heard.
The majority opinion dwells at length on the salutary social purpose of the detoxification program, as to which there is neither any dispute, nor, I think, any relevance. The opinion concedes that the village did not grant a special use for a detoxification center, and the village has so stated in its answer. Thus the essential basis for the majority’s conclusion is that there has been a legislative interpretation of the meaning of the special use ordinance with which the courts should not interfere.
The opinion properly concedes that the result may not be based on the weight to be accorded the opinion of the village attorney; but the majority concludes that the opinion of the attorney which the village impliedly adopted as a legislative decision by permitting the detoxification center to go ahead, however, is entitled to great weight. Yet the majority concedes that the rules with regard to the interpretation of an allegedly ambiguous statute by government officers or departments charged with its enforcement do not apply here. (See People ex rel. Watson v. House of Vision, 59 Ill. 2d 508, 514-15 (1974). See also First National Bank & Trust Co. v. City of Rockford, 47 Ill. App. 3d 131, 141-42 (1977).) They base the result on the fact that the village of Villa Park as a home-rule municipality (which, incidentally, was not proved of record and which has been denied) can, without interference, interpret an ordinance passed by a previous legislative body some 11 years before. Why, because the question pertains to “its government and affairs.”
I fail to see how a home-rule authority can preempt judicial review in this manner, and no authorities are cited. The general rule is that legislators are “without authority to state explicitly how the judiciary shall construe a statute [or ordinance].” (People v. Crawford Distributing Co., 53 Ill. 2d 332, 338 (1972). See also Ill. Const. 1970, art. II, §1.) Thus, it seems clear that the trustees’ silence on the evening of June 26, 1978, assuming it is an acquiescence in the village attorney’s opinion, is not in any sense controlling on the courts. Even if it might be argued that the legislators’ construction of the ordinance, although not controlling, is persuasive authority, the trustees’ silence here would be of little value since it is a construction mechanically imposed 11 years after the date of the enactment. In an analogous Federal situation, the Supreme Court has held that, “[T]he views of a subsequent Congress form a hazardous basis for inferring the intent of an earlier one.” (United States v. Price, 361 U.S. 304, 313, 4 L. Ed. 2d 334, 340, 80 S. Ct. 326, 332 (1960). See also International Brotherhood of Teamsters v. United States, 431 U.S. 324, 354 n. 39, 52 L. Ed. 2d 396, 426-27 n. 39, 97 S. Ct. 1843, 1864 n. 39 (1977); Gannon v. Chicago, Milwaukee, St. Paul & Pacific Ry. Co., 22 Ill. 2d 305, 322 (1961).) There is no indication in the record that the 1978 trustees had any special insight as to what their predecessors intended to do some 11 years earlier. Indeed, it would seem that the trial judge in the instant case was in as good a position as the 1978 trustees to discern the legislative intent that formed ordinance 1019 in 1967.
I would therefore affirm that portion of the trial court’s judgment, and would reach the homeowners’ cross-appeal seeking to reverse that part of the trial court’s judgment which denied their motion for attorney’s fees.
The trial court denied any attorney’s fees in the exercise of what it considered its discretion. However, a successful plaintiff in an action under section 11 — 13—15 of the Municipal Code is entitled to the award of reasonable attorney’s fees. In Meyer v. Marshall, 62 Ill. 2d 435, 439 (1976), the Illinois Supreme Court interpreted the statute as amended as making “the allowance of attorneys’ fees mandatory, rather than discretionary ” # based on a finding that the defendant has engaged in prohibited activities. I would remand this issue to the trial court for a further hearing.