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Smith v. Town of Proviso

JULY 27, 1973.

LESLIE J. SMITH, PLAINTIFF-APPELLANT,

v.

THE TOWN OF PROVISO ET AL., DEFENDANTS-APPELLEES — (THE TOWN OF NORTHFIELD, INTERVENOR-APPELLEE.)



APPEAL from the Circuit Court of Cook County; the Hon. WALTER P. DAHL, Judge, presiding.

MR. JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:

Plaintiff Leslie J. Smith, an elector and taxpayer in Proviso Township in his own behalf and on behalf of other such electors and taxpayers, filed suit against the Town of Proviso, the Town Supervisor, the Town Clerk, the members of the Board of Town Auditors, and the County Clerk, questioning the constitutionality of the township form of government and the conduct of a special Proviso town meeting. Upon motion of an intervenor, Town of Northfield, plaintiff's first amended complaint, which replaced his original complaint, was dismissed for the legal insufficiency of plaintiff's attack on the constitutionality of section 77 of the Township Organization Act relating to voting viva voce or by standing to be counted. (Ill. Rev. Stat. 1969, ch. 139, sec. 77.) Subsequently, on motion of defendants, except the County Clerk who answered, plaintiff's second amended complaint and an amendment thereto were dismissed. Plaintiff appeals from both orders dismissing his complaints.

On appeal, plaintiff contends: (1) that town meetings are unconstitutional because they are "no longer a practical means of governing densely populated townships," (2) that the town meeting form of government violates the "one man-one vote" rule, (3) that section 77 of the Township Organization Act relating to voting viva voce or by standing to be counted violates the provision of the Illinois Constitution of 1870 regarding the use of the secret ballot, and (4) that he stated a cause of action in his second amended complaint based upon Thompson v. Conti (1968), 39 Ill.2d 160, 233 N.E.2d 351.

The second amended complaint (hereinafter "the complaint") alleges that the Town of Proviso is an urban township with a large population located in western Cook County and has numerous municipalities within its boundaries which provide services to the inhabitants. On April 14, 1970, the annual town meeting was held at the field house of Proviso East High School for the purpose of examining the budget, appropriations, and tax levies for (1) the road and bridge fund, (2) the town fund, (3) the general assistance fund, and (4) the mental health fund for the fiscal year beginning March 31, 1970. The township electors voted down the budget, appropriations, and levies for all such funds except the mental health fund. Upon realizing that no funds would be available to pay their salaries, defendants had a special town meeting called for the purpose of re-examining the budget, appropriations, and levies for the funds which had been voted down. This special meeting was held at 8:00 P.M. on June 12, 1970, at the Proviso West High School gymnasium and resulted in passage of the budgets, appropriations, and levies for the three funds which had previously been disapproved. Although the budgets for each fund were more specific, a lump sum was appropriated for each fund.

The complaint alleged that defendants: (1) convinced various municipal leaders to announce their support for approval of the disputed budgets and to require their employees to attend the special town meeting, (2) had their mental health commissioners send a letter to the parents of mentally retarded children urging them to support approval of the disputed funds, (3) set up tables outside the meeting room and prepared voter affidavit forms to be filled out by electors prior to entry to the meeting room, (4) equipped the public address system with a cut-off switch to maintain order, (5) had police officers attend the meeting, (6) appointed election judges, eleven days in advance of the meeting, to count the votes of electors who voted for and against the proposals raised during the meeting, and (7) determined to select a moderator favorable to their views. The voter affidavits required prospective participants in the town meeting to state their names and addresses, to state whether they were American citizens over the age of twenty-one who had resided in Illinois for one year, in the county for ninety days, and in the district for thirty days, and also to state whether they were registered voters. Upon completing the form the electors were given an American flag lapel pin to indicate their qualification for voting. The complaint does not allege that any qualified electors were denied entry to the meeting room. In the meeting room, voting was done by the electors standing to be counted by election judges who used no voter binder or poll sheet. According to the complaint, 462 more people voted on the adoption of the budgets than had signed voter affidavits. Furthermore, the complaint alleged that a moderator selected by defendants conducted the meeting with bias and used the cut-off switch and the police occasionally to keep order. The complaint further alleged that only about 2% of the electors of the township attended the meeting and that no facilities within the township could accommodate all the electors of the township.

Each count focused on different aspects of the above stated facts. Count I alleged that defendants' actions were taken pursuant to a conspiracy to violate the constitutional rights of the other electors. Count II, which was not argued on appeal, related to the constitutionality of lump sum appropriations. Count III challenged the constitutionality of township government based upon the lack of a sufficiently large meeting room within the township, the lack of an accurate method of tallying votes, and the inability to determine who were qualified electors. Each count sought to enjoin defendants' use of the proceeds received from the sale of tax anticipation warrants and sought declaratory relief.

OPINION.

Plaintiff first contends that town meetings are unconstitutional because they are "no longer a practical means of governing densely populated townships." The town meeting form of government provides for direct participation by electors in local government. It has a long tradition of use in the United States. Provision for its use in Illinois is made both in the Constitution of 1870 (article 10, section 5) and in the Constitution of 1970 (article 7, section 5). Both sections permit the legislature to provide methods for the discontinuance of township government which the legislature has done. (Ill. Rev. Stat. 1969, ch. 139, secs. 20-24.) Prior to recent revisions and subsequent to the occurrences in this case, the taxing authority of the township was vested in the township electors assembled at an annual town meeting. (Ill. Rev. Stat. 1969, ch. 139, sec. 39.03.) Now, that authority is vested in the Board of Town Auditors. Ill. Rev. Stat. 1971, ch. 139, sec. 126.3.

According to the statute, annual town meetings are to be held on the second Tuesday of April of each year (Ill. Rev. Stat. 1969, ch. 139, sec. 50) at 2:00 P.M. unless otherwise provided. (Ill. Rev. Stat. 1969, ch. 139, sec. 73.) Special town meetings may also be held (Ill. Rev. Stat. 1969, ch. 139, sec. 56), although the subjects of the meeting are limited to those listed in the notice of the meeting. (Ill. Rev. Stat. 1969, ch. 139, sec. 56.) In most other particulars special meetings are similar to annual meetings. (See Ill. Rev. Stat. 1969, ch. 139, sec. 59.12.) Town meetings must be held at "some convenient place in the town" fixed by the Board of Town Auditors. Ill. Rev. Stat. 1969, ch. 139, sec. 53.

Town meetings are called to order by the town clerk or a chairman selected by the electors (Ill. Rev. Stat. 1969, ch. 139, sec. 73) who subsequently acts as clerk of the meeting. (Ill. Rev. Stat. 1969, ch. 139, sec. 74.) The statute specifically provides that:

"The chairman shall, if there are electors desiring admittance to the meeting who cannot be admitted because of the size of the meeting hall, recess the meeting forthwith to a time as soon as practicable and to a place sufficiently large to accommodate at least the number of electors present at that time within the meeting hall and those outside of the meeting hall desiring to be admitted." Ill. Rev. Stat. 1969, ch. 139, sec. 73.

The first matter of business to be considered at the town meeting is the selection of a moderator.

The conduct of town meetings is the responsibility of a moderator selected by the electors. He is required to swear to perform the duties of his office "faithfully and impartially." The statute further provides that:

"The moderator * * * shall preside [at town meetings], make announcement of the business before the meeting, preserve order, and decide all questions of order. He shall have the same power and be subject to the same penalties, in connection with his conduct as such moderator, as judges of election under the provisions of ...


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