Answers to Questions

By THOMAS A. MATTHEWS, J. D., League Consultant

SUBMIT ALL QUESTIONS FOR INFORMATION IN WRITING

To Village Clerk, Coalton:

"A vacancy in the office of Village President may be filled, by appointing an Acting President to serve until the next regular election of trustees at which time a successor should be elected to serve out the remainder of the unexpired term. A vacancy on the Board of Trustees may be filled in the same manner and for the same time."

To Village Clerk, Tilden:

"There is nothing to exempt a resident whose car is used in the village from the wheel tax, even though that resident is in the Armed Services."

To Mayor, East Dubuque:

"A municipality may establish a salary for the office of police magistrate but the office is made elective and cannot be made appointive; any salary established could not be changed during the term of the magistrate."

To Councilman, Savanna:

"Any money held by a municipality in a particular fund, may be invested in Tax Anticipation Warrants of the city if there is no immediate need for the use of such money for the purposes for which it was collected.

"Balances in the Water Fund may be used to purchase Tax Anticipation Warrants."

To Attorney, South Beloit:

"I am indeed glad that you find the answers to questions in the Illinois Municipal League Review helpful and interesting. I do myself.

"The question whether a municipality may prohibit the sale of alcoholic liquor to females under the age of 21 but over the age of 18, is one which cannot be answered didactically. It would depend upon whether the courts would construe that as a reasonable regulation of the sale of alcoholic liquor in the face of the fact that the statute specifically refers to minors, and females are no longer minors after reaching the age of 18. I do not know of any case in Illinois on the question."

To Village Clerk, Weldon:

"There is nothing to prevent the use of money in the general corporate fund to pay water revenue bonds if the money is available and not needed for other purposes."

To Village Clerk, Mt. Auburn:

"The village has the power by a zoning ordinance to regulate the location of junk yards. An existing junk yard can be subject to any regulations to prevent a nuisance, and causing the emission of smoke and ashes could be a nuisance. If you have an ordinance now in force prohibiting the maintenance of a nuisance the person operating the junk yard might be prosecuted for violating that ordinance.

"I do not know of any authority that you would have— other than by the adoption of a zoning ordinance with provision for the gradual elimination of non-conforming uses— to prohibit the operation of this established junk yard, but its method of operation is subject to control."

To Acting City Manager, East Moline:

"The proposed ordinance enclosed with your letter of January 8th regulating traffic would probably be valid excepting as it might be attacked on the basis of being too vague in some of its provisions.

"The League will shortly send out a suggested traffic ordinance which is quite extensive—that Bulletin when it comes may be of assistance to you."

To Village Clerk, Liverpool:

"A vacancy in the office of Police Magistrate with a year-and-a-half to two years to run, is to be filled by an election, not by appointment. There is nothing to prevent a Trustee from being elected Police Magistrate but he would have to resign as Trustee if he were elected to that. office.

"In the meanwhile, even with the office of Police Magistrate vacant, any Justice of the Peace may be designated to hear ordinance violation cases.

"The law does not require that a Village President have a Liquor Board to assist him in his duties."

To Trustee, Aroma Park:

"The procedure for annexing property to the municipality is set up in Article 7 of Chapter 24, of Illinois Revised Statutes.

"You will note that there are different procedures depending upon whether anybody is living on the property and upon whether or not a majority of the residents and the owners of a majority of the property file a petition. An election is not necessarily required it a majority petition, or if there are no persons residing on the premises. See Illinois Revised Statutes, Chapter 24, paragraph 7-1 to 7-11.

"You would need the services of an attorney in the preparation of a petition for annexation."

To Attorney, LaGrange Park:

"It has been pretty well agreed upon among municipal attorneys that the Board of Fire and Police Commissioners has authority only over full time firemen or policemen. And this Board has nothing to do with the so-called Volunteer Fire Department.

"Although there is no specific provision to this effect it seems to me that in the absence of the secretary of the Board of Local Improvements the Board could appoint a. secretary pro-tem, just as the village may appoint a clerk pro-tem."

To Corporation Counsel, Alton:

"The only provision I know of for paying fines imposed for violation of the State traffic law to the municipality is that in paragraph 235 of Chapter 95% which recites that. where the arrest is made and prosection carried on by the municipal officials the fine goes to the municipality where the offense occurred within the corporate limits. Some counties have adopted a practice of permitting such; fines to go to the municipality even though arrest was by a state officer, but there is no authority that I know of other than the statute above cited."

To Village Clerk, Grand Ridge:

"Mr. Viar of the Municipal Audit Division has indicated your interest in the matter of employees coming under the Social Security Act.

"A municipality may put its employees under the Social Security Act—but it must put all employees of every group or class under the Act and cannot select individuals for such treatment.

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"I see no reason why an Assistant Superintendent of water would not be qualified along with other similar employees for Social Security coverage, but a policeman in a municipality having a Police Pension fund would already have the protection of that pension and could be omitted from the Social Security classification."

To Alderman, Eddyville:

"The question of what constitutes residence within a municipality is one that is not easily answered—it depends upon the facts if a person is a resident in one municipality for some years—or for any length of time, he does not lose this residence merely because he may have to stay outside and perhaps work somewhere else for even an extended length of time. The question is one of where he intends to have his permanent residence, and the intention is shown by his acts—if for example he retains living quarters and does not register to vote anywhere else, this is accepted as proof that he intends to retain his residence.

"A person may acquire a new residence in one day if he moves into a town with a bona fide intention of staying there as a resident. But a person cannot have two separate places of residence; if he owns more than one home and perhaps occupies one part of the time and the other part of the time he must designate one as his place of residence and registering to vote is generally accepted as establishing the place of residence."

To City Attorney, Pontiac:

"Since a Fire Protection District is a separate corporate entity, it would have to have its own officers and keep its own books. There would be no objection to the Fire Protection District naming persons who are city officials also as Fire Protection officials or employees to keep the books and records, but the books and records would have to be kept separate, and the money of the Fire Protection District could not be received as city money."

To Village Clerk, West Point;

"Any tree located on a street or parkway—that is outside the lot or property line—belongs to the municipality and it is the responsibility of the village to take care of it.

"A special forestry tax can be levied—after a referendum—for the purpose of taking care of trees. Otherwise, the expense of removing trees from village property is borne from general corporate funds."

To Attorney, Mound City:

"I concur with your conclusions as to the Levee Tax contained in your letter of August 23rd. The term 'General Municipal Election' as used in Chapter 24, Paragraph 54-1, is not specifically defined in Chapter 24 and the definition found in Chapter 46 seems to be applicable.

"The form of ballot which you enclosed with your letter seems to me to be in correct form."

To City Treasurer, Hoopeston:

"Unless there is something in the grant of funds to the city for a particular purpose, or in the document setting up the trust for the trust fund you refer to, there is nothing to prevent keeping the various trust funds in one bank account provided they are kept separate on the books and each is used only for the designated purpose.

"You should discuss this matter with your city attorney, and also discuss with him the type of investments which are legal for you to make with these trust funds."

To City Clerk, Witt:

"Under a statute passed at the recent session of the Legislature an alderman or village trustee may be paid for two meetings which he did not attend, in the course of a year, in addition to his pay for meetings attended."

To City Attorney, Pontiac:

"You will note in the article on the so-called Cafeteria Court contained in the April 1954 edition of the Illinois Municipal Review a statement that the voluntary payment for a parking violation without a trial for violating the ordinance is justified as a voluntary settlement of a claim for a penalty for an ordinance, violation. And it is suggested in that article that such payments should be treated as fines and that ten percent should go to the Police Pension Fund under the provisions of Chapter 24, paragraph 892."

To City Attorney, Salem:

"As I understand your letter of January 3rd, an employee in the course of his work over a period of years kept a record of the location of water and sewer lines, valves and other equipment put in by his department over a period of years. The information contained in his record was obtained while he was working for the city, but he states that he compiled the data and recorded it outside his regular working hours. Now he asks to be paid a substantial sum for turning over this record and information to the city.

"Even assuming that the employee concerned had specific office hours, and that he did work after these hours in compiling the information, it is difficult for me to see how he would be entitled to a substantial sum of money for turning the information or records over to the city.

"Most ordinances which set up the duties of municipal officials contain a provision that all records pertaining to the work of each official or employee must be turned over to the municipality upon request of his superior or the governing body. Even without such an ordinance it seems to me that to pay extra compensation in addition to the salary, provided might be in violation of Section 19 of Article IV of the constitution of Illinois which prohibits granting extra compensation to a public officer, agent, or servant after the service has been rendered."'

To City Clerk, Rock Falls:

"I believe that a municipality of under 10,000 which adopted the Municipal Retirement Fund act is subject to the same regulations as one which comes under the act automatically by reason of reaching 10,000 population.

"The inter-relation between this fund and the Social. Security act was the subject of some amendment passed at the recent session of the Legislature, and I am not certain as to the precise effect of these amendments. The matter should be discussed with your city attorney, of course, and perhaps the Municipal Retirement Fund board and the Social Security office have worked out the me chanics of the problem."

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