Answers to Questions

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

To Mayor, Fulton:
"One who sells his own product must obtain a peddler's license if he peddles the produce; he is not exempt from the requirement of a peddler's license by the tact that he is selling produce of his own farm."

To Village Attorney, Cherry:
"We do not have any form of ordinance for prohibiting the storage of grain or other combustible materials within a limited distance of a residence building."

To Administration Assistant, Glencoe:
"The matter of liability for defects in streets or sidewalks is one tor discussion with the municipal attorney. Some time ago the Illinois Municipal League published an article on liability for defects in streets and sidewalks which contained a digest of all decisions up to that time on the question. We are enclosing a copy of a 1956 decision involving the city of Rockford, which as you will note, merely restated the general principles discussed in the League article some time before that.

"The question of repairing sidewalks is an important one in every city and village in the state. Of course, if a sidewalk is completely unusable a new sidewalk may be laid and paid for by special assessment or special taxation; but repairs to the sidewalk are the responsibility of the municipality. However, the municipality has no special tax available to meet the expense thereof."

To City Clerk, Brookport:
"You will find enclosed a suggested ordinance regulating dogs which may be helpful. It is not lawful to provide that all dogs running at large should be shot on sight."

To Alderman, DeKalb:
"The question you raise in your letter of the 15th should be discussed with the city attorney.

"Under the new traffic laws, the council may, after a traffic survey, establish varying speed limits in its streets and alleys subject to certain restrictions. The League's article and ordinance on traffic, recently published, discusses this problem."

To Attorney, Mound City:
"I have puzzled quite a bit about the question raised in your letter of May 14th. As you have noted, prior to 1937 the statutes authorized municipalities to name and change the name of any street, etc. This section was amended in 1937 to provide that upon petition by the owners of a percentage of the property abutting on the street it was mandatory to change the name in compliance with the petition. This provision now found in Chapter 24, Paragraphs 23-26 was held invalid as you note, in People vs. Chicago, 413 Ill. 315.

"From the opinion it is clear that it was the provision making it mandatory to change the name upon petition that was invalid. I believe that the Council may now change the name of any street or any new street by ordinance.

"In other words, the statute preceding the 1937 amendment is still in force."

To Attorney, Leland:
"I have not read the cases cited in your letter of May 26th as to the application of the five year statute of limitations to proceedings to disconnect territory; but I think the general opinion is that an action to disconnect may be brought at any time even though the facts warranting the disconnection have existed a long while prior to the filing of the petition to disconnect.

"I presume the Secretary of State would have a copy of Private Laws of 1867, and you could get a copy from him."

To Mayor, Hometown:
"The matter mentioned in your letter of May 26th, should of course, be discussed with your village attorney.

"It is required that the Treasurer pay out money on warrants signed by the mayor and clerk. I believe that a check bearing the signatures of all three of these officers in effect serves the purpose of a warrant. Many municipalities have one warrant drawn up each month directing the Treasurer to pay the various items described on the warrant; and the check may or may not require more than one signature.

"As you note, Chapter 24, paragraph 9-25 provides for the designation of someone to sign in place of the mayor; and under paragraph 9-69.2 a deputy clerk may be designated by the clerk where authorized by the council to sign all documents on behalf of the clerk. There is no such provision as to the Treasurer so far as I know."

To Village Clerk, Wenonah:
"The village has the power to compel the removal of a fence placed on a public street within the municipality."

To Village Attorney, Bartonville:
"Section 892 of Chapter 24 of the Revised Statutes relating to the Police Pension fund recites that this Act is automatically effective in any city having a population of not less than 5,000 as shown by a census 'taken at any time by such city,' or by the most recent Federal census.

"I think that makes the Act applicable if there has been a city or village census showing the population to be over 5,000.

"The fact that no special police protection tax is levied would not affect this.

"Although the general property tax for pension fund need not be levied if the fund has reached the limit set by statute, I don't know of any such provision applying to the-percentage of license fees, etc., constituting the other source of income of the pension fund."

To City Attorney, South Beloit:
"I think most of us are of the opinion that any position which is made an office by statute—such as Chief of Police, Chief of the Fire Department, Clerk and Treasurer, as well as elective offices—are subject to the residence qualifications found in Illinois Revised Statute, Chapter 24, Paragraph 9-87.

"That section provides that no person shall be eligible-to hold any municipal office unless he has resided in a municipality, for one year preceding his election or appointment and is a qualified elector. However, in municipali-

Page 138 / Illinois Municipal Review / June 1958

ties with less than 200,000 population, these requirements do not apply to engineers, health officers or other officers who require technical training or knowledge.

"Certainly the position of Clerk, particularly where there is no Comptroller, calls for a high degree of skill, but I doubt that it is of such a nature as to come within the exceptions.

"Aa a practical matter, there are many offices—including those on the police force—for which it would be highly desirable to secure a man with special training or skill, and it is hard to see any reason for continuing in the statute this requirement for one year's residence prior to appointment or election to an office. We think the only way to be sure about it would be to have that section ol the statute repealed."

To Attorney, Pontiac:
"If the land to be purchased is to be paid for out of the proceeds of a bond issue there is no need to include any item for it in the Appropriation Ordinance.

"If the acquisition of the land is to be paid for out of General Funds then I see no way to avoid having the Appropriation Ordinance state the total amount that might be necessary.

"As you know, when an award is entered in a condemnation case the court may allow a reasonable time tor the municipality to determine whether or not it wishes to take the land at the price set by the jury."

To City Clerk, Polo:
"The question raised in your letter of May 23rd relative to Peddlers and Solicitors should be discussed with your city attorney.

"Generally, a peddler must secure a license if required by ordinance, and requiring a license from peddlers is not construed as an interference with Inter State Commerce.

"The same is true as to solicitors, excepting that municipalities in Illinois do not have specific authority to license or regulate canvassers or solicitors. The League published an article on registration of canvassers and solicitors some time ago, and you may be able to receive a copy of it from the executive office in Springfield."

To Attorney, Metropolis:
"Some time ago the League published an article with a suggested ordinance on the control of dogs. You can probably get a copy from the executive office in Springfield. Also the Municipal Code of Waterloo—as well as other municipalities—has a chapter on the subject.

"I believe the municipality has the power to impound dogs and establish a City Pound, but the question of whether or not inoculation can be required has not been determined by the court so far as I know. In my opinion municipalities have the power to require inoculation."

To Village President, Smithboro:
"The village board has the power to declare the office of Village Trustee vacant by abandonment, although there is no flat rule as to how many meetings missed without a reason constitute abandonment.

"The matter should be discussed with your village attorney, but it would seem that a Trustee who misses 5 consecutive monthly meetings without any explanation or reason, has abandoned the office."

To Alderman, Rolling Meadows:
"The question raised in your letter should be discusses with your city attorney.

"I do not know of any municipality in Illinois who carry products liability insurance on the waterworks system. There have been no decisions in this state so far as I know holding a city liable because of water pollution. There have been such decisions in some other states."

To Village President, Cullom:
"The Illinois Commerce Commission has jurisdiction over whether or not a railroad station shall be closed, and the village may protest in writing or by personal appearance at the hearing when the question of closing a station is presented to the Commission."

To Village Clerk, Frankfort:
"The law as to personal property taxes is the same throughout the state, but the administration varies greatly from county to county. The Assessor is responsible in the first instance for placing a value on your taxable personal property. When the tax is levied it is an obligation of the tax payer, and the state's attorney has the power to secure a judgment for the amount of the tax—after it has become delinquent—such a judgment would be a lien on the real estate.

"Although in Cook County—particularly in the city of Chicago, many people are never assessed a personal property tax, the practice outside Cook County is distinctly different, and in some areas close to 80% to 98% is collected on personal property taxes."

To Acting City Manager, Savanna:
"The question raised in your letter should be discussed with your city attorney.

"There is no authority for a municipality to spend municipal money to support a privately owned bus line; although there is a procedure whereby a municipality may acquire and operate a bus line."

To Village President, Elliott:
"Most municipalities now have an ordinance providing that no new subdivisions will be accepted unless all necessary street improvements are in, or provision is made for installing them before the plat of the subdivision will be approved.

"Even approval of a plat does not amount to technical acceptance of the streets shown on that plat as village streets. The village may accept the streets by doing work on them in which case they become village streets.

"It is the responsibility of the village to maintain its streets in passable condition.

"The only practical way to install new pavements is by a special assessment proceeding, in which the cost is assessed against the owners of the abutting property."

(Continued on page 141)

Page 139 / Illinois Municipal Review / June 1958

ANSWERS TO QUESTIONS

(Continued from page 139)

To Village Clerk, Emden:
"A municipality should make income tax and social security withholdings the same as any other employer. If your employees are under social security while working for the village, and if your employees are employed for a long enough period so that the income tax withholding would apply, withholding should be made just as it would be made by a private employer.

"The village would not have authority to use public funds to repair or maintain privately owned property.

"The village has the power to maintain or operate a community building but only if this has been approved by a referendum vote under Illinois Revised Statutes, Chapter 24, Paragraph 33.1-1 and following; and under paragraph 56-1 and following. In each case a referendum is required before public money can be spent."

To Attorney, Cerro Gordo:
"There is no need to show in the appropriation ordinance the money to be spent out of the proceeds of the sale of a bond issue.

"For the purpose of completeness, appropriation ordinances should show the interest and principal payments to be made on the bond issues."

To Village Clerk, Thawville:
"The question raised in your letter of June 2nd should be referred to your village attorney.

"Generally a municipality is not liable for damage done by a branch of a tree blown off in a storm, striking a car parked in the road."

To City Attorney, Mt. Sterling:
"As you have noted, Chapter 24, Par. 9-19, provides that in an aldermanic form city a vacancy in the office of Mayor may be filled by appointing an acting Mayor, who shall be one of the aldermen.

"Since more than one year remains in the unexpired term, I think the statute is mandatory in requiring that the vacancy be filled by a special election. However, I doubt that there would be any question of invalidity of the acts of the council or the acting mayor if he serves on and the council does not call a special election. He would be at least de facto mayor under those circumstances. However, a mandamus suit might be started to compel the council to call a special election under Par. 9-19."

To Village Clerk, Mechanicsburg:
"Under the law the municipality is required to repair public sidewalks; and there is no way, to compel the owner of abutting property to share in the cost. In most instances, however, the abutting owners are willing to pay a share of the cost to make the necessary repairs, voluntarily.

"If the walks are entirely unusable the municipality may install new sidewalks under a special tax or special assessment proceeding, in which case the cost of installing the new sidewalk is levied against the property benefited.

"If an actual nuisance is being created by the establishment you mention, it can be stopped by a prosecution for creating a nuisance. Any person could sign a complaint for the purpose.

"The only way in which the location of business houses can be regulated generally, is by the enactment of a complete zoning ordinance as described in the 'Manual for Zoning' published by the Illinois Municipal League some time ago."

Page 141 / Illinois Municipal Review / June 1958