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In Re Petition of Mitchell

DECEMBER 6, 1963.




Appeal from the County Court of Kane County; the Hon. DAN B. WITHERS, JR., Judge, presiding. Affirmed.


This case involves the question of whether the subject matter of a proposed ordinance fixing water rates is legislative in character, or whether it is administrative or executive in character. The question arose when a petition was filed with the clerk of the City of Aurora asking that the city council enact an ordinance fixing water rates at a certain level and further asking that the proposition be submitted to a vote of the electors in the event the city council failed to fix the rates at the level requested by petitioners. Objections were filed to the petition based upon the ground that the legislature had conferred the right to fix water rates and rents upon the corporate authorities and that the statute under which petitioners were acting (Sec 4-5-18 Illinois Municipal Code) pertains only to "the subject matter of which is legislative in character." These objections were sustained by the county court, the petition was dismissed with prejudice, and this appeal followed.

Sec 11-125-3 of the Illinois Municipal Code provides as follows:

"The corporate authorities may make all needful rules and regulations concerning the use of water supplied by the waterworks of the city or village, and may do all acts and make such rules and regulations for the construction, completion, management or control of the waterworks, and for the fixing and collecting of such water rates or rents as the corporate authorities may deem necessary or expedient. . . ."

Section 4-5-18, relied upon by petitioners, provides in part that: "Any proposed ordinance, the subject matter of which is legislative in character, may be submitted to the council by a petition signed by the electors of the municipality equal in number to the percentage specified in this section." The statute further provides that if the city council fails to pass the proposed ordinance, the matter shall be submitted to a vote of the electors.

In People v. City of Centralia, 1 Ill. App.2d 228, 117 N.E.2d 410, the legislature had delegated to the corporate authorities the discretion to sell real estate held by the city for public use when "in the opinion of the corporate authorities" the real estate is no longer necessary, appropriate, required for the use of, profitable to, or for the best interest of the municipality. A petition was presented to the council asking that an ordinance be passed for the sale of the municipal airport property and requesting that if the council did not pass such an ordinance the proposition be submitted to a vote of the electors. Objections to the effect that the proposed ordinance was not legislative were overruled. The Appellate Court, in reversing the county court, stated, page 234:

"The vital question in the case before us, therefore, is whether or not the subject matter of the ordinance proposed in the petition is legislative in character. It has frequently been observed in testing the legislative character of an Act that an ordinance which is legislative in character initiates, or enacts a permanent law, or lays down a rule of conduct, or course of policy, for the guidance of citizens or their officers, and it has been noted that an ordinance which simply puts into execution previously enacted laws is administrative or executive in character. The Illinois Supreme Court, in People v. Board of Education, 380 Ill. 311, points out that while it is at times difficult to draw the distinction as to whether the exercise of a power is administrative or legislative, the true distinction is between a delegation of power to make the law which involves a discretion as to what the law shall be, and conferring an authority or discretion as to its execution to be exercised under and pursuant to the law. Municipal authorities who exercise discretion and judgment in performing their duties, but who do not, while executing the law under which they act, make or declare any law or rule of conduct, or construe or apply any law, are not exercising legislative or judicial powers, but are acting in a ministerial or administrative capacity (Mitchell v. Lowden, 288 Ill. 327, 341)."

In People v. Kapp, 355 Ill. 596, 603, 189 N.E. 920, a petition requested that the council enact an ordinance increasing the salary of firemen and that, in default of such action, the matter be submitted to the electorate. In holding that the proposed ordinance was not legislative in character, the Supreme Court quoted the following language with approval:

"It was there held that the initiative and referendum statutes applied only to such acts as are legislative in character as distinguished from those that are of an administrative or executive character; that the establishment of a fire department was a legislative act and was properly accomplished by ordinance on account of its permanent character, but that the fixing of compensation of members of the fire department was an exercise of the administrative function of the city."

The Supreme Court then concluded as follows, page 604:

". . . we cannot escape the conclusion that the fixing of salaries of the employees in the Springfield fire department was an executive or administrative act and not legislative in character. It was therefore not a proper subject for regulation by the electorate, as it is quite generally held in this country that the power to initiate legislation under statutes providing for the initiative and referendum in the conduct of municipal affairs does not extend to such functions of city government as are purely administrative in character. Hopping v. Council of City of Richmond, 170 Cal. 605, 150 Pac 977; Schroeder v. Zehrung, 108 Neb. 573, 188 N.W. 237; Dooling v. City Council of Fitchburg, 242 Mass. 599, 136 N.E. 616; Long v. City of Portland, 53 Ore 92, 98 Pac 149; Brazell v. Ziegler, 26 Okla. 826, 110 Pac 1052; State v. Edwards, 305 Mo 431, 266 S.W. 127; Oakman v. City of Eveleth, 163 Minn. 100, 203 N.W. 514; Meade v. Dane County, 155 Wis. 632, 145 N.W. 239; Dallas Railway Co. v. Geller, 114 Tex 484, 271 SW 1106."

In State v. City of St. Petersburg (Fla), 61 So.2d 416, 419, the city had the power "to establish, impose and enforce water rates and rates and charges for gas, electricity and all other public utilities. . . ." It was contended that an ordinance increasing sewer charges was subject to a vote of the people. In rejecting this contention the Court said:

"The rule is uniformly accepted that initiative and referendum do not apply to executive or administrative matters of the kind covered by this Ordinance."

The Court quoted at length from McQuillin's Municipal Corporations, Volume 5 (3rd ed), Sec ...

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