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In Re Bower

OPINION FILED NOVEMBER 22, 1968.

IN RE PETITION FOR REMOVAL OF FRANK BOWER ET AL., APPELLANTS. — (JAMES D. WELKER, ET AL., APPELLEES.)


APPEAL from the Appellate Court for the Fifth District; heard in that court on appeal from the Circuit Court of Richland County; the Hon. Judges GEORGE J. MORAN, JOSEPH H. GOLDENHERSH, and EDWARD C. EBERSPACHER, presiding.

MR. JUSTICE UNDERWOOD DELIVERED THE OPINION OF THE COURT:

We have granted leave to appeal the judgment of the Fifth District Appellate Court (91 Ill. App.2d 63) which affirmed the decree of the circuit court of Richland County upholding the sufficiency of five petitions for recall of the mayor and four commissioners of Olney, Illinois. The appellate court opinion contains the following accurate factual account:

"Section 4-7-1, Chapter 24, Illinois Revised Statutes, 1965, relating to the removal of officers in commission form municipalities provides:

`Every incumbent of an elective office, under this article, except a judicial officer and an officer of a court, whether elected by a popular vote or appointed to fill a vacancy, is subject to removal at any time by the electors qualified to vote for members of the council. The procedure to effect the removal of an incumbent of such an office shall be as prescribed in sections 4-7-1 through 4-7-5.'

The initial procedure to effect this removal is provided in section 4-7-2 of the statute and requires the filing, with the municipal clerk, of a petition signed by electors amounting to at least 45% of the number of votes cast for Mayor at the last preceding general quadrennial municipal election. This subsection of the statute also provides that the petition `shall contain a general statement, of not more than 200 words, of the reasons for which the removal is sought.'

"Separate petitions were filed in the office of Kathryn Flanders, City Clerk, on September 14, 1966, demanding an election on the question of removal from office of Mayor Frank Bower and Commissioners Jerry D. Black, Bernard Edwards, Forrest Bunting and John Ginder. No charges of malfeasance or misfeasance in office were made and the reasons for seeking the election were identical on each petition and are as follows:

`1. Refusal to permit electors of Olney to vote on an ordinance for the issue of waterworks revenue bonds and the proposed lake and other construction mentioned in the ordinance. (Ordinances 66-21 and 66-26), in spite of repeated petitions by the electors.

`2. Willingness to impose on the people who use water and sewer in Olney high rates which are unnecessary and which impose hardship on residents with low and fixed incomes.

`3. Willingness to disregard expressed wishes of more than 1,500 persons to save Bird Haven in its natural state.

`4. Efforts to relocate the city dump to land near the west edge of Olney directly north of Route 250 where it will be a nuisance to residents in the western part of Olney and a pollution hazard to Fox Creek.'

"Within the five days allowed by Chapter 24, Section 4-7-4 of the statute, identical objections were filed attacking the validity of the petitions and the petitions and objections thereto were consolidated for hearing in the Circuit Court of Richland County and for purposes of this appeal. It was stipulated that for the purpose of the hearing, the evidence presented as to the petition regarding Mayor Frank Bower and the court's ruling thereon would be the same on the remaining four petitions if the same issues were raised and evidence presented thereon. It was further stipulated that the number of signatures required on each of the petitions was 1,458.

"The original petition against Mayor Frank Bower consisted of 115 sheets containing thereon 1,710 signatures. The original petition against Commissioner Jerry D. Black consisted of 117 pages containing thereon 1,723 signatures. The original petition against Commissioner Bernard Edwards consisted of 115 pages containing thereon 1,708 signatures. The original petition against Commissioner Forrest Bunting consisted of 115 pages containing thereon 1,679 signatures. The original petition against Commissioner John Ginder consisted of 116 pages containing thereon 1,744 signatures." 91 Ill. App.2d at 65, 66.

Since the appellate court opinion was rendered, the election requested in the recall petitions has been held as to Commissioners Forrest Bunting and Bernard Edwards and they have been retained in office. They are not parties to this appeal.

The first contention raised by appellants is that the general statements set forth in the petitions were insufficient as a matter of law to require a recall election because they did not charge acts constituting malfeasance, misfeasance or nonfeasance. Appellants advance the theory that cause for recall must relate to official incompetency or misconduct in office, and be more than mere disagreement with policy decisions made by officeholders. Cases from three jurisdictions (State ex rel. Peterkin v. City Council, 95 W. Va. 502, 121 S.E. 489; People ex rel. Elliott v. O'Hara, 246 Mich. 312, 224 N.W. 384; Newberg v. Donnelly, 235 Mich. 531, 209 N.W. 572; Joyner v. Shuman (Fla. App.), 116 So.2d 472) are cited by appellants in support of their position, although appellants' counsel fails to note that the cited Michigan cases were expressly overruled in Wallace v. Tripp, 358 Mich. 668, 101 N.W.2d 312, 315, where the cases he relies upon are classified as abberational. The remaining cases cited represent a minority view which we reject because we find a legislative intent embodied in our statutes that officeholders in the commission form of local government should be subject to recall by the voters for reasons which are purely political in nature. This philosophy was adopted in Westpy v. Burnett, 82 N.J. Super. 239, 197 A.2d 400, 404, where it is noted: "The courts throughout the United States have generally adopted the view that the power granted to electors of a municipality to remove certain public officers through recall procedure is political in nature and that it is for the people, and not the courts, to decide the truth and sufficiency of the grounds asserted for removal. In most states statutory and charter provisions as to ...


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