dissenting:
This is a case about the separation of powers between the executive and legislative branches of Cook County government. The sole question presented is whether the president of the Board of Commissioners of Cook County has authority to unilaterally reinstate a program of elective abortions at Cook County Hospital. The answer is no.
I
As the majority holds, and the parties agree, the circuit court’s order denying preliminary injunctive relief followed a full hearing and was effectively a decision on the merits. Moreover, the issue presented is one of interpretation of a legislative enactment, a question of law, on which we need not defer to the circuit court’s ruling. (Monahan v. Village of Hinsdale (1991), 210 Ill. App. 3d 985, 993, 569 N.E.2d 1182, 1188.) Accordingly, this court may decide the merits of plaintiffs’ quo warranto action. (Dixon Association for Retarded Citizens v. Thompson (1982), 91 Ill. 2d 518, 525, 440 N.E.2d 117, 120.) A brief introduction to the applicable analytical framework therefore follows.
Quo warranto is “ ‘[a]n extraordinary proceeding, prerogative in nature, addressed to preventing a continued exercise of authority unlawfully asserted.’ ” (Department of Illinois Disabled American Veterans v. Bialczak (1976), 38 Ill. App. 3d 848, 850, 349 N.E.2d 897, 899, quoting Black’s Law Dictionary 1417 (4th ed. 1951); Ill. Rev. Stat. 1991, ch. 110, par. 18 — 101 et seq.) To commence such an action, a plaintiff need merely allege generally that a defendant has exercised a claimed right without authority in law; the defendant then has the burden of proving the legal justification for the challenged act. (People ex rel. Daley v. Datacom Systems Corp. (1991), 146 Ill. 2d 1, 36, 40, 585 N.E.2d 51, 67, 68.) Quo warranto defendants therefore must demonstrate affirmatively that the law provides the requisite authority; they cannot prevail merely if no law precludes their conduct. (Datacom, 146 Ill. 2d at 38, 585 N.E.2d at 68 (dismissal of quo warranto complaint reversed because ordinances cited by the defendants did not supply authority even though nothing precluded the defendants’ act).) Thus, here defendants have the burden of proving that the law authorizes defendant Phelan (the President) to reintroduce the voluntary interruption of pregnancy program (the Program) at the Cook County Hospital (the Hospital).
II
To meet this burden, defendants begin with the Illinois Constitution’s provision creating the office of the president, which states that “[t]he President of the Cook County Board *** shall be the chief executive officer of the County.” (Ill. Const. 1970, art. VII, §4(b).) This position, defendants insist, carries powers identical to those granted to chief executive officers of all counties but Cook under section 2— 5009 of the County Executive Law (Ill. Rev. Stat. 1991, ch. 34, par. 2 — 5009), including the power to issue executive orders. That no comparable statutory grant of powers exists for the Cook County President does not trouble defendants. They claim that such legislation was unnecessary because the purpose of the statute was to allow counties other than Cook to adopt the form of government Cook County already had under the State constitution, which would include the powers enumerated in the County Executive Law.
Defendants’ explanation fails to persuade. They overlook another constitutional provision, which permits all counties, not just Cook, to have a chief executive form of government (Ill. Const. 1970, art. VII, §4(a)), and they ignore the express provision in the statute confining its effect to counties other than Cook. Furthermore, even if this statute could be said to define the powers of Cook County’s chief executive, the provision defendants cite as support refers to the authority to issue executive orders for “coordination] and direction of] *** all administrative and management functions of the county government” (Ill. Rev. Stat. 1991, ch. 34, par. 2 — 5009(b)). As explained below, the subject matter of the President’s executive order does not fall within this category. More importantly, as the majority correctly observes, it is not the form of the President’s action but rather its substance that is at issue.
For the scope of the President’s powers, one must look first to the Illinois Constitution rather than to the County Executive Law. All county officers, in Cook and other counties alike, “shall have those duties, powers and functions provided by law and those provided by county ordinance” as well as those “derived from common law or historical precedent unless altered by law or county ordinance.” (Ill. Const. 1970, art. VII, §4(d).) In Hospital matters, the General Assembly transferred to the Board of Commissioners (the Board), the powers, rights, and duties of the former governing commission, which include the power “to organize, operate, maintain and manage insofar as developing and enforcing broad policies,” “to establish and enforce policies regarding [Hospital] use, operation and management,” and “to establish rules and regulations for the use, operation and management thereof.” (Ill. Rev. Stat. 1991, ch. 34, par. 5 — 37003, incorporating Ill. Rev. Stat. 1971., ch. 34, par. 5020 (repealed).) The statute makes no mention of +he President; the same is true of the Hospital’s bylaws. Thus, by statute, only the Board has authority over the Hospital.
In 1991, however, the Board enacted the health services ordinance (the Ordinance). It established the Bureau of Health Services (the Bureau), which includes the Hospital. The Ordinance states that
“[t]he Chief of Health Services shall be the chief executive officer of the Bureau of Health Services and shall be responsible for the management and direction of the Bureau of Health Services and of any other agency, function or matter the County Board or President may assign from time to time. The Chief of Health Services shall be under the direction and the control of the President and subject to policy as set by the County Board.” (Cook County Ordinance No. 91 — 0—52, §3 (1991).)
Whatever powers common law or historical precedent may have vested in the President, from the date of its passage onward the Ordinance altered that authority with regard to the Hospital.
Although the majority faults the Board for not defining the word “policy” in the Ordinance or in the Hospital’s bylaws, this is a commonplace occurrence; indeed, the same is true of the statute giving the Board the governing commission’s role. In such circumstances a court simply looks first to the ordinary and popularly understood meaning of an enactment’s undefined words when it begins its task of ascertaining and giving effect to the legislative intent. (Datacom, 146 Ill. 2d at 14-15, 585 N.E.2d at 57.) The circuit court correctly determined that the Board’s intent when enacting the Ordinance was to vest in itself the power to decide Bureau policy, but it (and the majority) wandered astray at the next analytical step: they reason that in the absence of a definition of the word “policy” in the Ordinance, the Board’s current inaction must be interpreted as its concession that reinstatement of the Program cannot be a “policy” matter unless the Board votes on it. In their view, anything is a policy matter once the Board votes on it, and nothing is a policy matter unless the Board votes on it. In other words, apparently, a decision as inconsequential as the length of the custodian’s coffee break would be transformed into a policy matter for the purposes of the Ordinance if the Board chose to vote on it, but a decision as significant as replacing the existing Hospital buildings would not unless and until the Board voted on it.
This construction of the Ordinance is plainly wrong. It fabricates from whole cloth an interpretation of the phrases “management and direction,” “direction and control,” and “subject to policy as set by the Board” far removed from their ordinary and popularly understood meanings. The ordinary meaning of the word “policy,” for which the circuit court consulted Black’s Law Dictionary, is the “general principles by which a government is guided in its management of public affairs” or, when applied to a law, its “general purpose or tendency considered as directed to the welfare or prosperity of the state or community.” (Black’s Law Dictionary 1157 (6th ed. 1990).) A review of other dictionaries unearths nothing different. Using this definition along with those the majority gives for “management,” “direction,” and “control,” the plain meaning of the Ordinance is that the Board delegated to the chief executive officer of the Bureau its statutory authority to oversee and administer the Hospital’s day-to-day affairs subject to the President’s approval, and that the Board retained its power to guide the Bureau’s chief executive officer with expressions of the general principles and purposes of the Bureau.
A court may not, as the majority does by holding that the Ordinance permits the President to set policy in the face of Board inaction, “insert words into [a] legislative enactment[ ] when [it] otherwise presents a cogent and justifiable legislative scheme.” (Waste Management of Illinois, Inc. v. Illinois Pollution Control Board (1991), 145 Ill. 2d 345, 348, 585 N.E.2d 606, 607.) The language of the Ordinance, which delegates to the President the power to “direct and control” the Bureau’s chief executive officer, implies absolutely no legislative intent to grant the President carte blanche in policy matters whenever its decision-making process lacks sufficient alacrity to suit the President, just as here, for example, when a resolution to expand abortion services at the Hospital has languished in committee for two years. Rather than construing the Ordinance according to its plain meaning, the majority interprets the Ordinance in contravention of that meaning, for it makes the Bureau’s chief executive officer “subject to policy as set by the [President]” unless and until the Board changes it. This reading makes the Board superfluous and the words “subject to policy as set by the Board” mere surplusage.
Defendants also assert that to interpret the Ordinance to preclude the President from initiating action in Hospital policy matters that the Board has not yet addressed “contradicts the practical realities of managing the affairs of major health institutions” and “is inconsistent with any common-sense notion of a ‘chief executive officer.’ ” At oral argument, they insisted that such an interpretation would “hamstring” county government. The majority finds this argument persuasive.
Although the Ordinance may have created an unwieldy regime for managing the Hospital, this court may not hazard an opinion as to its wisdom, for when considering an unambiguous legislative enactment, a court may only interpret the legislature’s intent and must uphold that intent unless the result would be absurd. (Buckellew v. Board of Education of Georgetown-Ridge Farm Community Unit School District No. 4 (1991), 215 Ill. App. 3d 506, 511, 575 N.E.2d 556, 559, appeal denied (1991), 142 Ill. 2d 652, 584 N.E.2d 127 (undesirability of result does not permit court to depart from law’s plain meaning).) Should defendants fear that the division of authority established by the Ordinance is impractical, their recourse lies with the Board, which can amend the Ordinance, or with the General Assembly. Until then, just as by statute the President cannot initiate action in appropriations matters, so too does the Ordinance bar him from doing so in Hospital policy.
Moreover, the “hamstringing” deplored by defendants and the majority is simply the natural consequence when a legislature has the right to act first and the executive has the power to block its actions by veto. For example, as demonstrated by last year’s budget stalemate in California, when a legislature enacts an appropriations measure and its executive vetoes it, the result is that nothing happens until either the two branches reach an agreement or the legislature overrides the veto; the executive cannot step into the breach. In the majority’s view, though, the President not only has the power to veto the Board’s policy initiatives for the Hospital, he also has the authority to set new policy and to change the status quo, so long as he has the agreement of just a few like-minded commissioners to block any attempt to override his veto.
This is not, contrary to the majority’s reasoning, the way Cook County government works. As extraordinary as the President’s veto power is, it is only the power to prevent the Board from acting, not the power to act in its stead. To hold that the President may step in to fill a “vacuum” left by Board inaction in effect requires the Board to “veto” the President when the two branches disagree, thereby enhancing the power of the latter at the expense of the former. Such alterations in the balance of power between the President and the Board, which constitute a change in Cook County’s form of government, require a county-wide referendum. (Dunne v. County of Cook (1985), 108 Ill. 2d 161, 483 N.E.2d 13 (referendum required to change veto override requirement because doing so alters the relative powers of the President and the Board); Dunne v. County of Cook (1987), 164 Ill. App. 3d 929, 518 N.E.2d 380 (resolution to allow Board to hire own staff not permitted because it would change relative powers), appeal denied sub nom. Dunne v. Bowen (1988), 119 Ill. 2d 556, 522 N.E.2d 1243.) For these reasons, I cannot agree with the majority’s interpretation of the Ordinance as granting the President the authority to set policy for the Bureau in the face of Board inaction. Instead, the Ordinance makes plain that the Board has delegated to the President the power to initiate action only in matters that fall outside the general principles by which the Bureau should be guided in its activities.
Ill
Even though the President has no power to initiate Hospital policy or to change the status quo in Hospital policy matters, he would have the authority to reinstate the Program if to do so falls within the scope of his authority to “direct and control” the Bureau’s chief executive officer. Defendants assert, and the majority appears to agree, that deciding to offer elective abortions is analogous to deciding to provide out-patient services at Oak Forest Hospital, which formerly was only a geriatric and rehabilitation hospital; to develop referral and ambulatory care networks with other medical institutions; to dedicate two floors of Provident Hospital to alternative birthing facilities; to authorize the Hospital to perform its first liver transplant; to expand the mammography program; and to establish tuberculosis and AIDS programs. Because these decisions were neither submitted to nor challenged by the Board, they reason, the decision to reinstate the Program likewise must be within the President’s aegis.
The analogy fails. Every one of these decisions merely involves the management, administration, and allocation of medically necessary services, the essence of the Hospital’s day-to-day affairs. By contrast, the decision to use county funds for elective medical procedures, reimbursement for which in this instance is prohibited by State and Federal law, implicates the general principles and purposes of the Bureau. These include which medical services the county will provide with its scarce resources, given that by ordinance, admissions to the Hospital are restricted, “insofar as practicable, to persons with respect to whom the County of Cook is obligated by law or by contract to furnish necessary hospital care and treatment” (emphasis added) (Cook County Ordinance §22 — 1 (1980)). As the United States Supreme Court has commented in another context:
“The decision whether to expend [public] funds for nontherapeutic abortion is fraught with judgments of policy and value over which opinions are sharply divided. *** [Wfhen an issue involves policy choices as sensitive as those implicated by public funding of nontherapeutic abortions, the appropriate forum for their resolution in a democracy is the legislature. We should not forget that ‘legislatures are ultimate guardians of the liberties and welfare of the people in quite as great a degree as the courts.’ ” (Emphasis added.) (Maher v. Roe (1977), 432 U.S. 464, 479-80, 53 L. Ed. 2d 484, 498, 97 S. Ct. 2376, 2385-86, quoting Missouri, Kansas, & Texas Ry. Co. v. May (1904), 194 U.S. 267, 270, 48 L. Ed. 971, 973, 24 S. Ct. 638, 639 (upholding State ban on payment for elective abortions but allowing payment for childbirth expenses).)
It comes as no surprise, therefore, that in Federal and State government, legislative decisions to use or not to use public funds for elective abortions are legion. (See Corns, The Impact of Public Abortion Funding Decisions on Indigent Women: A Proposal to Reform State Statutory & Constitutional Abortion Funding Provisions, 24 U. Mich. J.L. Ref. 371, 380-81 (1991), citing generally NARAL Found./ NARAL, Who Decides? A State-by-State Review of Abortion Rights 1991 (1991), and specifically, in addition to the Federal Hyde Amendment, which is applicable in the District of Columbia (District of Columbia Appropriations Act 1991, Pub. L. No. 101 — 518, 104 Stat. 2224, 2235): Ariz. Rev. Stat. Ann. §35-196.02 (1990); Idaho Code §56 — 209c (Supp. 1990); Ill. Rev. Stat. 1989, ch. 23, par. 6 — 1; Ind. Code §16 — 10—3—3 (Supp. 1990); Ky. Rev. Stat. Ann. §§205.560(1), (6) (Baldwin 1991); La. Rev. Stat. Ann. §40:1299.35 (West 1990); 1990 Md. Laws 1460-61 (ch. 409, line item 32.17.01.03); Mass. Gen. L. Ann., ch. 29, §20B (Law. Co-op. 1988); Mich. Comp. Laws Ann. §400.109a (West 1988); Minn. Stat. Ann. §256B.062516 (West Supp. 1991); Mo. Rev. Stat. §208.152.1(14) (Vernon 1986); N.J. Stat. Ann. §30:4D — 6.1 (West 1981); N.Y. Soc. Serv. Law §365 — a(2) (McKinney 1983 & Supp. 1991); N.D. Cent. Code §14-02.3-01 (Michie 1981); Ohio Rev. Code Ann. §5101.55(C) (Baldwin 1989); Okla. Stat., tit. 56, §206(C) (Supp. 1990); Pa. Stat. Ann. tit. 62, §453 (Supp. 1990); R.I. Gen. Laws §23 — 13—18(c) (1989); S.D. Codified Laws Ann. §28 — 6— 4.5; Utah Code Ann. §26-18-10(6) (1989); Va. Code §§32.1-92.1, 32.1-92.2 (Michie 1985); Wis. Stat. §§20.927, 59.07(136), 66.04(l)(m) (West 1988); Wyo. Stat. §35 — 6—117 (1988); see also 1992 Iowa Adv. Legis. Serv. S.F. 2392; 1992 Kan. Sess. Laws 183.)6 In some States, a constitutional provision on this issue governs. (Ark. Const, amend. 68, §1; Colo. Const, art. V, §50.) That this is so reflects an acknowledgement that the decision to expend public funds for elective abortions is among those better addressed by the legislative process of public deliberation and comment than by executive fiat. Elective abortions, of course, do not present the only such policy decision; a similar question would arise if, for example, the procedure at issue were elective reconstructive surgery or sex-change operations.7
Some of these statutes prohibit all abortions except under certain circumstances, such as rape, incest, or to save the life of the woman; implication, public funding of abortions would be similarly limited.
In sum, the decision to provide elective medical procedures, including elective abortions, at the Hospital is a policy matter for the purposes of the Ordinance. Therefore, I cannot agree with the majority that reinstatement of the Program is within the President’s authority under the Ordinance.
IV
The Ordinance defines the relative powers of the Board and the President from 1991 onward, so the origin of the 12-year ban on elective abortions at the Hospital is of little consequence to the question before this court, which is whether the Ordinance gives the President the power to reinstate the Program in 1992. Because the majority devotes much of its opinion to this point, however, I offer the following observations.
Defendants’ challenge to the pedigree of the ban is the functional equivalent of a quo warranto action of their own against Dunne’s authority to issue the directive, challenging his power to decide to end the Program absent the Board’s formal approval. Even assuming that defendants have standing to contest Dunne’s authority,8 their challenge is simply untimely, as intervenor Stroger suggests. (People v. City of LeRoy (1920), 293 Ill. 278, 127 N.E. 695 (challenge rejected because no benefit from voiding improper annexation and universal acquiescence over more than ten years).) Here, from 1980 until 1992, there has been universal acquiescence in the ban against elective abortions at the Hospital. In addition, each subsequent board of commissioners relied on the validity of the ban when approving appropriations, and taxpayers have relied on it as well. To allow a challenge now would prejudice the 1980 Board, its president, and their successors, most of whom are no longer in office and thus cannot remedy the formal defects. That public detriment would result from invalidating the decision to end the Program at this late date is beyond cavil, for the practical effect of the majority’s ruling is to render all similar prior Board votes vulnerable to like attack. None of the majority’s cases requiring adherence to formalities is contrary. Of the five, four were contemporaneous challenges in which timeliness was apparently not at issue, and in the fifth (Mettawa), the court acknowledged the untimeliness but chose to resolve it, apparently because the defendant had elected to address the substance of the complaint without raising this defense.
Even considering defendants’ challenge on its merits, moreover, they could not prevail. They argue, and the majority agrees, that the President had the power to reinstate the Program because no contrary formal Board vote occurred in 1980 or since to bar him from doing so. This reasoning, however, overlooks defendants’ burden in this action: a quo warranto defendant must demonstrate affirmatively that the law provides the authority for the challenged conduct. (Datcom, 146 Ill. 2d at 38, 585 N.E.2d at 68.) Indeed, the essence of quo warranto proceedings is that one cannot justify assertions of power merely on the ground that nothing prohibits such actions.
Curiously, moreover, despite the majority’s observation of the leitmotif of Dunne’s history of unilateral power with regard to the Hospital, it fails to recognize the effect thereof: the Board’s delegation to Dunne of its statutorily granted authority over the Hospital, including the power to terminate the Program. The majority’s reasoning also ignores the authority of the Public Service Committee, a committee of the whole, to which the evidence indicates the Board delegated its statutory grant of authority over the Hospital, and which, as the transcript of its public meeting demonstrates, formally concurred without dissent in the decision to terminate the Program.
I hasten to add that like the majority, I abhor traps for the unwary resulting from a legislature’s failure to speak in accordance with statutorily mandated procedural formalities. That concern, however, simply is not at issue under the singular circumstances in this case. In light of the widespread contemporaneous publicity, including the public committee meeting with approximately 50 speakers, one cannot say that the 1980 Board acted in stealth. In light of the Board’s history of delegating its powers to the President and the governing committee, the lopsided vote by the committee of the whole, and public acquiescence to the 12-year prohibition against elective abortions at the Hospital, one cannot say there is no existing policy on elective abortions for the purposes of the Ordinance.
V
At the outset, I stated that this case is about the separation of powers in Cook County government. As the circuit court observed, that abortions were the subject matter of this power struggle was “merely incidental.” This case is not about abortion or whether to expend public funds for abortions.9 Instead, the question it presents is who has the power to make that decision. As demonstrated above, the decision is not a matter for unilateral action by the chief executive officer of Cook County. It also is not a question for the judiciary. Instead, under the Ordinance, it is a question that the Board alone has the power to address.
With such authority comes responsibility. When, as here, elected legislative representatives have the power to express the general principles and purposes of government, citizens have the right to expect those representatives to take a public stand, no matter how controversial the issue. The Board’s passage of a resolution purporting to “acknowledge the executive authority exercised by President Richard J. Phelan in Executive Order 92 — 1,” as the circuit court aptly put it, was a “disingenuous [attempt] *** to implement elective abortions at Cook County Hospital *** without indicating any position for or against [doing so].” The majority opinion condones, nay encourages, what the circuit court characterized as “a perfect example of legislative timidity that seeks the comfort of submitting a controversial issue to the judiciary, inviting it to be a surrogate decision maker on issues legislators were elected to decide.”
Defendants failed to present any constitutional provision, statute, ordinance, common law, or historical precedent that would constitute an affirmative grant of power to the President to unilaterally reinstate the Program. Therefore, I would vacate the circuit court’s order denying plaintiffs’ motion for a preliminary injunction and remand for entry of judgment in favor of plaintiffs as well as for further proceedings under section 18 — 108 of the Code of Civil Procedure (Ill. Rev. Stat. 1991, ch. 110, par. 18 — 108), which requires factual determinations better made by the circuit court.
Some of these statutes prohibit all abortions except under certain circumstances, such as rape, incest, or to save the life of the woman; by implication, public funding of abortions would be similarly limited.
Contrary to an assertion by defendants’ counsel at oral argument that Rothstein testified that the Hospital routinely performs elective surgical procedures, no such statement appears in Rothstein’s testimony. Interestingly, however, from her testimony it appears that the Board has ordered the Hospital not to perform sex-change operations.
Interestingly, it was the then-commissioners, including some of the plaintiffs here, who had standing to file such a suit against Dunne. I know of none, and given the committee vote without dissent in 1980, one was unlikely.
A State constitutional challenge to the statute restricting public funding of abortions to those necessary to preserve the life of the woman is currently before the circuit court of Cook County. Doe v. Edgar (1991), No. 91 — CH—1958.