Answers to Questions

By THOMAS A. MATTHEWS, J. D., League Consultant
SUBMIT ALL QUESTIONS FOR INFORMATION IN WRITING

To Trustee, Pulaski:
"I believe that you could fill the vacancy in the office of Village President at the present time, which you are apparently doing. I believe also that the members of the Village Board may fill the vacancy on the Village Board at the present time without waiting until your new Village President is installed."

To Town Clerk, Chatsworth:
"A village trustee may be paid only the compensation set for each meeting attended; provided that trustees may be allowed two absences in a year for which compensation may be paid also. (Ill. Rev. Statutes, Chapter 24, Paragraph 9-97.)"

To City Attorney, DeKalb:
"The question whether a municipality may prohibit the sale of alcoholic liquor to females over the age of 18 but under the age of 21 has never been settled so far as I know by our courts. In my opinion, it has that power but there is no decision on it."

To Attorney, Oglesby:
"A few municipalities have adopted an ordinance which prohibits raising or lowering the grade of a lot excepting to make it conform to the street grade adjacent to the lot and some in their building codes prescribe that the grading may be raised to a specific number of feet above such street grade. I do not have a copy of such an ordinance and I do not know of any decision by the Appellate or Supreme Courts on the validity of such ordinances."

To Engineer, Edwardsville:
"Under the statutes the subdivision control ordinance of a municipality may apply to all land within a mile and a half of the corporate limits; zoning regulations of course, being enforced only within the corporate limits."

To Trustee, Rockdale:
"Cities and Villages have the power to license only those businesses that the statute authorizes them to license. The Dram Shop Act authorizes the licensing of retail liquor dealers but not wholesale liquor dealers, by Villages or Cities."

To Commissioner, Grayville:
"There is no decision on the question of how detailed the Annual Treasurer's Report must be; you should consult with the city attorney on the matter.

"In my own mind it seems that a report which la as detailed as the appropriation ordinance would substantially comply with the statute."

To Attorney, Alton:
"It has become a common practice in some municipalities to issue building permits to churches or charitable organizations without charging a permit fee. I don't suppose there is anything strictly illegal about it but it does seem that this would cause those who do pay permit fees to pay more than their share if the fees are set so as to cover the cost of maintaining the building department."

To City Attorney, Champaign:
"I agree with you that an appropriation ordinance may be amended providing the amendment is passed prior to the end of the first quarter of the fiscal year. I suppose the only objection to passing the appropriation ordinance in two steps like that is the extra publication cost.

"I do not believe that the Board of Trustees of the Police Pension Fund has the power to deny the application of any duly appointed policeman for pension benefits; as long as the policeman is acutally a member of the force appointed in the manner provided by law, and within the requirements of the Pension Act the Board would have no power to deny him the benefits of the act because of the duties that might be assigned to him."

To Alderman, Alton:
"The zoning ordinance in most municipalities limits the size of the business signs that may be permitted in residential districts; of course, no business can be conducted in a residential district excepting a non-conforming use that was there before the area was restricted, or a home occupation permitted in the zoning ordinance.

"Placing an advertising sign—other than one advertising the premises for sale—in a residential district would amount to using the premises for commercial or business purposes in violation of the zoning ordinance unless the sign merely advertised a business lawfully conducted as a non-conforming use."

To Village Attorney, Flossmoor:
"The question raised in your letter of April 24th as to the increase in the corporate tax after a referendum under Chapter 120, paragraphs 162-A and 162-B, is one that has troubled most of us for a long while. Whether the five-year period covered in the referendum held in 1948 is automatically extended without a time limit is one that has not been settled so far as I know. I have read your memorandum on the subject and have really nothing to add to it. My own opinion would be that by reason of the amendment to 162-B passed in 1951 the five-year limitation on the increase in the tax no longer applies, but opinions on this vary, and there has been no decision on it so far as I know."

To Mayor, Geneva:
"Under the 1957 amendment to Section 129 of Chapter 43 it is provided that the term 'municipal election'—during which the sale of liquor at retail is prohibited—means only a primary or general election at which officials of a city, village, or incorporated town are nominated.

"The Election Law in Chapter 46 still includes elections in school districts, park districts, etc., under the term 'municipal election' (See Chapter 46, paragraph 1-3); and it is provided in Chapter 46, paragraph 9-23 that no intoxicating liquor shall be sold at retail during voting hours on the day of any 'municipal' election.

"There is a conflict between these two provisions but the amendment to the dram shop act was the latest enactment."

Page 106 / Illinois Municipal Review / May 1958

To Attorney, Kincaid:
"As I mentioned in an earlier letter, the Mines and Minerals act provides that no permit to drill within a municipality shall be issued without the permission of the corporate authorities.

"Other than that, I know of no provision which would authorize an ordinance flatly and unconditionally prohibiting drilling for oil within a municipal corporation. It is, of course, possible that such an ordinance might be upheld from the standpoint of protection against fires, or based upon the provision in the Mines and Minerals act, but there is no positive authority for such an ordinance."

To Alderman, Golconda:
"The questions raised in your letter of the 17th should be discussed with your village attorney.

"Generally, a bill for any expenditure previously authorized by the council must be paid, but common practice is to have all bills submitted to and approved by the council or a committee thereof before checks are written.

"Certain expenditures may be payable from one or another of the funds of the city, but money cannot be transferred from one fund to another without the consent of the council."

To Corporation Counsel, Olney:
"Since article 14 of chapter 24 establishing a Board of Fire and Police Commissioners has been made mandatory in all municipalities of 5,000 or over, the act does apply in all such municipalities.

"The provision of 14-4 merely refers to Chief of the Fire Department and Chief of the Police Department, and all other members of the Department must be appointed by the newly created Board of Fire and Police Commissioners as provided in the act. I think there is no doubt that the act as it now stands is mandatory as to all municipalities of 5,000 population or over, and that until the statute is changed it must be complied with.

"The act does not take away from the council its control over the operation of the Police Department; or its control over how many members there shall be on the Department or the various ranks within the Department. But, it does take away from the council any control over who is to be appointed to the Police Department, or as a full time fireman, and makes all promotions within the Department—other than the appointment of the Chief— entirely under the control of the Board of Fire and Police Commissioners.

"The wisdom or policy of the law is entirely for the legislature, and as the law stands now the city has no choice as to whether or not to come under the act."

To Attorney, Washington Park:
"The matter of police pensions is covered in an article in the Illinois Municipal Review published in May 1950.

"You will note that where there is no one qualified to represent the beneficiary of the act that place is left vacant; and it only one person is qualified as a representative of the regular policemen that person serves on the Board of Trustees of the pension fund.

"As provided in paragraph 893 of chapter 24, two members of the pension board are appointed by the mayor, two members are elected from the regular police force and one member is elected from the beneficiaries."

To Mayor, Geneva:
"As I mentioned over the phone, I do not know of any authority for a municipality in Illinois to prohibit the delivery of wine or alcoholic liquor to homes. Some municipalities do have an ordinance to this effect on the books but I know of no action in which its validity has been tested."

To Mayor, Industry:
"A city is under no obligation to furnish premises outside the corporate limits with water service; and in the absence of a contract for furnishing such service any existing connections may be terinated at any time.

"No such connections should be made excepting with the approval of the city council, and any mains or pipe laid to connect with the city water system must comply with specifications established or approved by the council. Any connections to premises outside the corporate limits made without compliance with the ordinances and without the consent of the council may be severed at any time."

To City Attorney, Belleville:
"I am of the opinion that the Board of Fire and Police Commissioners has jurisdiction only over appointments to the police or fire department, promotions and discharges after a hearing. The matter of furlough or leave of absence I think is to be controlled by the city council or President and Board of Trustees, like all other matters pertaining to the operation of the department."

To Village Clerk, Braceville:
"The municipality may use general corporate funds to complete the construction of a municipal building it the money raised by a bond issue proves insufficient; but money cannot be spent for this purpose out of general corporate funds unless there has been a prior appropriation to support the expenditure."

To Village Clerk, Arlington Heights:
"The question raised in your letter of March 20th should be discussed with your village attorney.

"Generally, the village clerk has the power to administer oaths to anyone; and an oath of office—not necessarily sworn to before the clerk—should be filed for all municipal officials, as contrasted with employees."

To Alderman, Vienna;
"The municipality may impose a vehicle license on any vehicle owned and used by a resident within the municipality. Most vehicle license ordinances provide for a dealer's license so that a dealer needs to have a license for only that number of cars that he has and operates at any one time."

Page 107 / Illinois Municipal Review / May 1958

To City Attorney, Salem:
"There is no requirement that a Mayor sign an ordinance which has been duly passed by the City Council; his signature merely indicates that he approves the ordinance and will not veto it.

"Consequently, an ordinance properly passed by the Board of Trustees and published is valid even though the Mayor may not have signed it."

To Mayor, Genoa:
"There is no statutory provision preventing the display of a city vehicle license sticker on the lower right-hand corner of the windshield."

To Attorney, Sycamore:
"Speed limits other than those set by statutes may be established by ordinance after a traffic or engineering survey as provided in the new state traffic law. Such limits are effective only if they comply with the provisions of the state traffic law and if signs are posted as provided in Chapter 95 1/2, Paragraph 147.

"I believe that a survey by the Council Committee or any survey satisfactory to the Council can be used as a basis for altering the speed limit as provided in that section. My own suggestion would be that the speed ordinance varying the terms of the state ordinance on designated streets should be specific as to the areas within which the municipal speed limit is applicable and might better be kept as a separate ordinance. There would be no harm, however, in including this in the code."

To Village Attorney, Edwardsville:
"Chapter 50 provides for the disposition of lost or abandoned property generally, and paragraphs 42-49 of Chapter 95 1/2 provides for the disposition of motor vehicles which are abandoned and lost. You will notice that by these provisions it is advisable to have the CHIEF OF POLICE made custodian of lost or abandoned property."

To City Clerk, Havana:
"There are several statutes which provide for the maintenance of cemeteries—including abandoned cemeteries. You should consult with your city attorney as to which is applicable to your case. I do not know of any specific provision for removing bodies from the place where they have been buried in a cemetery to one part of the tract, and using the balance of the tract for a park."

To Village President, Mendon:
"If your ordinance specifically makes policemen officers of the village then they must comply with the residence requirement of Chapter 24, paragraph 9-87; if under your ordinance they are not made officers, and the city is not under the Fire and Police Commissioners Act, then policemen may be employed rather than officers and the residence requirement would not apply."

To City Clerk, DesPlaines:
"I do not know of any authority in the statutes for a municipality to require a license for cats; I suggest you discuss this matter with your city attorney."

To Attorney, Pawnee:
"One who is a village clerk cannot receive any money from the village other than his pay as clerk, regardless of what additional duties he may perform."

To Village Clerk, Wenonah:
"The village has the power to vacate streets and upon such vacation by ordinance, title goes to the abutting owners, each taking to the center of the vacating street. The village may require any reasonable compensation before vacating a street."

To Village President, Minier:
"There is no authority for a city or village to operate a municipal bowling alley; although it is possible that a bowling alley might form a part of a community building.

"Excavations which remain on private property may tie a nuisance because of the accumulation of refuse, stagnant water, or other reasons. In that case the owner may be prosecuted for maintaining a nuisance. There is no specific authority for a municipality to compel the filling in of such excavations."

To Mayor, Genoa:
"I do not know of any special tax in addition to all other taxes permitted for the maintenance of a city dump for the disposal of waste material other than garbage."

To Mayor, Robinson:
"We do not have a sample ordinance on the subject you mention in your letter of the 25th; generally, a new subdivision ordinance requires, among other things, that streets, sewer, water and other improvements be either installed or provided for before a subdivision plat will be approved.

"If it is a question of annexation, the city may similarly require that these improvements be installed or that provision be made for their installation before annexing."

To Mayor, Galva:
"In general, a Plan Commission studies the entire potential development of the city, and nearby surrounding areas. The official plan includes not only zoning but plans for street development, a new subdivision ordinance and all similar matters."

To City Clerk, Arcola:
"There is no liability for damages against a city it its Fire Department is busy fighting a fire either inside or outside corporate limits when another fire occurs."

To Attorney, Virden:
"We do not have a particular form of ordinance on the matter of plants or factories causing obnoxious odors. Generally, the ordinary nuisance ordinance which prohibits, among other things, causing obnoxious and offensive odors, is sufficient to cover the situation."

To City Clerk, Rockford:
"We don't have a Carnival Ordinance that we would send as a suggested model."

Page 108 / Illinois Municipal Review / May 1958

To Mayor, Fulton:
"Under the law the municipality may let any contract— other than one payable out of special assessments—without calling for bids on a two-thirds vote of the Council or Board of Trustees. Consequently, the contract you refer to may be let without calling for bids on a vote of two-thirds of the Aldermen."

To Mayor, Genoa:
"A city has no power to borrow money excepting through the issuance of tax anticipation warrants or bonds. In a few instances a city has purchased a vehicle under a conditional sales agreement but the validity of such an agreement is doubtful, but so far as I know, no one has objected in any of the cases where this was done."

To City Attorney, Carbondale:
"I know quite a few municipalities have enacted a building set-back ordinance as authorized under Article 30, Chapter 24, but we do not have any particular forms for such an ordinance.

"Some municipalities do not have a separate set-back ordinance but rely upon the zoning ordinance for this purpose."

To Treasurer, Sauk Village:
"The matter of the municipal audit law is covered in Illinois Revised Statutes, Chapter 24, Paragraph 1202 and following:

"The audit report is due six months after the end of the fiscal year; and may be made by any person authorized to engage in public accounting in the state.

"Municipalities with a population of less than 500 who do not maintain a municipal utility plant such as water or light may file on forms furnished by the State Auditor of Public Accounts, Springfield, Illinois."

To Village Clerk, Freeburg:
"You should consult with the village attorney on the question of the power of the municipality to license various businesses. There is no statutory authority to license furniture stores or dealers in new automobiles."

To City Clerk, Ava:
"The statutes do not require that an ordinance be given more than one reading before enactment; some rules of order adopted by ordinances in cities or villages have such a requirement."

To City Attorney, Staunton:
"To establish the purpose indicated in your letter of the 16th, I think an ordinance could be passed containing the following:

'The city will assume responsibility for the maintenance of sewer mains and lines on and under the street up to the property line; but the responsibility and maintenance of sewer lines from the street line to the premises served shall be that of the owner or occupant of the premises served'."

To City Manager, Wood River:
"The matter of licensing restaurants raised in your letter of January 6th, should be discussed with your city attorney.

"Generally, cities and villages have the power to license and regulate restaurants and to enforce reasonable legislation for the protection of the public health. The validity of any licensing ordinance which classifies restaurants according to desirability or any other standard might be questioned since the power of the municipality is to regulate food dealers for the protection of public health—and no restaurant which fails to comply with the standards established should be permitted to operate.

"The bulletin on licensing powers published by the Illinois Municipal League contains a discussion of the subject and a suggested ordinance for licensing restaurants."

To Village President, Wyanet:
"The matter of the Federal Social Security law, and its adoption by municipalities is covered in the May 1954 issue of the Illinois Municipal Review. As you will note from that article a tax may be levied to cover the cost."

To City Attorney, Morrison:
"A city may issue bonds to pay a judgment indebtedness without a referendum under Illinois Statute, Chapter 24, paragraph 17-1. A special tax to pay the bonds may be levied in connection with any bond issue, and this tax is in addition to the general corporate and all other taxes. This special tax may be abated from time to time it the municipality has on hand funds to meet the principal or interest due on the bonds so that the special levy is unnecessary (see paragraph 16-5)."

To Village Clerk, Oak Park:
"The manner of issuing licenses and permits is entirely within the control of the Village Board and should be so arranged as to be convenient for administration, and yet have each license or permit bear the signature of some responsible official in accordance with the ordinances.

"There is no specific authority for providing a penalty for late payment of a vehicle license or business license. Many ordinances do provide for a larger amount to be paid for either a business license or a vehicle license when the application is made late, and such provisions are almost uniformly complied with. After all, the one who applies late for his license or permit has been violating the ordinance by operating his vehicle or conducting his business without a permit or license and could be subject to a fine for such violation. Of course, the village attorney should be consulted on these matters."

To Alderman, Loves Park:
"A municipal official is entitled to be repaid for any expense he incurs, in addition to his salary. Ordinarily, this is taken care of by the official submitting an expense account at regular intervals and being repaid for the amounts shown thereon.

"You should consult your own city attorney on the question whether the procedure followed for the payment of expenses to officials in your city is correct."

To Village President, North Aurora:
"I believe that on the facts described in your letter of February 20th you could leave the office of Police Magistrate vacant until the election in 1963, and at that time provide for the election of a Police Magistrate in he municipal elecion in 1963. If a successor is elected now he would serve the unexpired term of the Magistrate who has resigned."

To Mayor, Grafton:
"The question whether a man can hold the office of township supervisor and city alderman at the same time depends upon whether they are both legislative in character.

"Article 3 of the Illinois Constitution divides the powers of government into three departments—legislative, executive and judicial. No person in one of these departments may exercise any power belonging to any of the other departments. This has been held to prevent a man from holding office in more than one of these three divisions.

"Since the matter pertains to a township or county office, the opinion of the attorney general could be asked. In my own opinion the office of supervisor belongs in the executive department, and would be incompatible with that of alderman which is legislative in character."

To Trustee, Robbins:
"The ordinances of the village should provide the method for selecting a chairman of each committee—and should show whether the village president or board of trustees designates the chairman.

"A village president has the right to vote only where there is a tie, or where three trustees vote in favor of a measure in which case he may cast his vote in favor of the measure even though because of an absence from the meeting there is not an actual tie. Unless the measure receives a vote of three trustees plus the president, or tour trustees it is not carried.

"The president may also cast his vote if the measure is one for which the Statutes require the favorable vote of a percentage of the 'corporate authorities.' (see Illinois Revised Statutes Chapter 24, Par. 9-44.)"

To Mayor, Oneida:
"The question contained in your letter of the 25th should be referred to your city attorney.

"As you have noted, section 10-11 of chapter 46 of the

Page 109 / Illinois Municipal Review / May 1958

revised Statutes provides that it a candidate dies, or declines a nomination in apt time, not less than forty-five days before the election the vacancy thus occasioned may be filled not less than forty days before the election 'by the political party or other persons making the original nominations'.

"It would seem to me that if a properly organized caucus committee filed certificate of nomination to supply the vacancy thus occasioned, in accordance with par. 10-11, and no objection is filed the names so supplied could be placed on the ballot."

To Police Magistrate, South Beloit:
"The questions contained in your letter of February 26 could be submitted to the attorney general since they deal with township offices.

"In my own opinion, an attorney who is justice of the peace, and as such a member of the town board, could not receive compensation for acting as attorney to the township.

"I believe, too, that a town clerk could not receive additional compensation for services as deputy assessor."

To Alderman, Monticello:
"The enclosed proposed ordinance on Junk Dealers may be of assistance to you.

"The statute permitting an increase in the salary of Trustee or Alderman does not apply to incumbents. This matter should be discussed with your city attorney.

"Generally, the compensation must be fixed by ordinance, but the compensation of an incumbent cannot be changed during his term of office."

To Village Clerk, Arenzville:
"Under recent decision of the Illinois Supreme Court a public utility company operating under a certificate from the Commerce Commission does not need a franchise from a city or village. The. matter of rates and service are entirely under the control of the Commerce Commission."

To Village Clerk, Benson:
"The pay. of a Village Treasurer is established by ordinance, and in some municipalities it is a straight salary, and in others a percentage of the money collected. Money received for the sale of a bond issue is not included it the Treasurer is paid on a percentage basis.

"It the pay of the Treasurer was once established by ordinance, that ordinance remains in force until amended or repealed."

To Trustee, Lindenhurst:
"There is very little possibility of a municipality being liable for damages to the general public because of its operation of a municipal park. Most Park Districts, so far as I know, do not carry Public Liability insurance although a few do carry it where particular equipment such as swimming pools or playground equipment is maintained."

To Attorney, Grant Park:
"I don't know of any provision which would bar a mem ber of the village board from serving as a member of the zoning commission—providing of course, he does not gel paid for his services on the zoning commission."

Page 110 / Illinois Municipal Review / May 1958