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Ketchmark v. Lynch

MARCH 4, 1969.

GEORGE KETCHMARK, LEO OSBORNE, JERRY CAPPS AND HARRY BETZEL, AS TRUSTEES AND AS INDIVIDUAL TAXPAYERS OF THE VILLAGE OF ROMEOVILLE, AN ILLINOIS MUNICIPAL CORPORATION, PLAINTIFFS-APPELLANTS,

v.

JOHN D. LYNCH, NEAL MURPHY, PRESIDENT OF THE VILLAGE OF ROMEOVILLE, AN ILLINOIS MUNICIPAL CORPORATION, MARK DELAY, CLERK OF THE VILLAGE OF ROMEOVILLE, AND HERBERT HULS, TREASURER OF THE VILLAGE OF ROMEOVILLE, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Will County; the Hon. MICHAEL ORENIC, Judge, presiding. Reversed and remanded.

SCHEINEMAN, J.

This case involves the question of construction of the Municipal Code with respect to the right of a mayor or village president to vote on ordinances.

Prior to 1941 a mayor or the president of the village board had no right to vote except to break a tie. In 1941 the law was amended to enlarge the presiding officer's voting privileges. This caused certain unforeseen ambiguities in the Cities and Villages Statute. For example, does a reference to the members of a council or board of trustees include the mayor or president of the board?

The ambiguities and inconsistencies presented a field for dispute between mayors and councils, and between boards of trustees and their presidents, of which the legislature became aware. Accordingly it created a commission to propose such revisions as seemed to be necessary. The commission presented its report to the 1961 Legislature, consisting of a Municipal Code together with annotations designed to acquaint the Legislature with the effect of the proposed changes. The new code was adopted in May of 1961 and is now in chapter 24 Ill Rev Stats.

The numbered references in this opinion are to the section numbers of chapter 24. The revision commission's notes of explanation are largely reported in Smith-Hurd Annotated Statutes as part of the notes to the altered sections.

By section 3-12-5 a village board of trustees is treated as similar to a city council, and its president is similar to the mayor of a city. Therefore, most of the references herein will be to the laws concerning mayors and aldermen, since the section above cited results in a village government being, for our purposes, the same as a city's.

There is no dispute of fact. The Board of Trustees of Romeoville consisted of the president and six elected trustees, one of whom had resigned. On August 16, 1967, an ordinance was presented abolishing the office of Village Attorney. Four trustees (plaintiffs-appellants) voted for it. One trustee and the Village President voted against it. On August 28 the Village President vetoed the ordinance by letter. On September 6 at a meeting of the Board, the letter was presented to them. A motion was made and seconded to override the veto, the same four trustees voted for the motion, and the other trustee and the president voted "no." The president declared the veto stood. This suit was filed for a declaratory judgment, for injunctive relief and for mandamus. The trial court entered judgments for the defendants, and plaintiffs took this appeal.

Therefore, this suit presents an aftermath of the ambiguity that existed for 20 years, but which the revision was intended to resolve. It has reference to various phrases such as members of the city council or aldermen or corporate authorities. The mayor is certainly a corporate authority, hence in actions in which he has a vote, uniform usage in the Code is to specify the portion of the corporate authorities required to pass an ordinance. When the Legislature deems it desirable to exclude the mayor, such as in voting to override a veto, or to create or discontinue an office over which the mayor is given appointive power, it had to use some other word.

The commissioners believed they had solved the problem, which they explained in their note to 3-11-19 (passing over veto) reported in SHAS as follows:

"Old section 50 provides for the passage over the mayor's veto by 2/3rds `of all the members elected to the city council.' We have eliminated the word `members' and have substituted the word `aldermen.' Our reason for doing this is that `members' may be thought to include the mayor and thus run into the difficulty of interpretation that arose under old section 44. Our suggested wording makes it clear, we think, that the mayor is not entitled to vote on reconsideration where an ordinance, etc. has been passed over his veto."

The sentence thus referred to in the law reads: "If, after such reconsideration, 2/3rds of all the aldermen elected to the City Council shall agree to pass an ordinance, resolution or motion, notwithstanding the mayor's refusal to approve it, then it shall be effective."

This type of wording is also used in 3-7-1 concerning creation and discontinuance of appointive offices, and in 3-4-19, in both of which 2/3rds of the aldermen must vote for an ordinance to make it effective. With equal consistency the word "trustees" is used instead of the board of trustees where the village president is excluded. See 3-12-5.

As an example of a change in wording to make it clearer that the mayor does have a vote, we refer to section 11-76-1 which provides for the sale of real estate no longer needed. Prior to the revision it required that an ordinance for this purpose be "passed by 3/4ths of the members of the city council . . . or the board of trustees of any such village."

This ambiguous phrase which may or may not include a mayor, was replaced in the revision by the words: "passed by 3/4ths of the corporate authorities of the city or village" . . ...


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