APPEAL from the Circuit Court of Jackson County; the Hon.
PEYTON H. KUNCE, Judge, presiding.
MR. PRESIDING JUSTICE JONES DELIVERED THE OPINION OF THE COURT:
This appeal arises from a quo warrantor proceeding brought against J.C. Penn, in which the plaintiff-appellant sought the ouster of Penn from the Board of Town Auditors of Carbondale Township. The parties made a stipulation of facts as set out hereinafter.
Plaintiff, Gerald Compton, is a resident of the city and township of Carbondale, Illinois, and is a duly elected member of the Board of Town Auditors of that township. Defendant, J.C. Penn, is also a resident of the city and township of Carbondale, Illinois, and is a qualified and registered voter thereof. The Board of Town Auditors of Carbondale Township consists of a township supervisor and four members elected at large, all of whom are voting members. (Ill. Rev. Stat., ch. 139, § 117.) Prior to June 6, 1974, a vacancy on the Board of Town Auditors of such township existed because of the resignation of one of the duly elected members. On June 6, 1974, a duly called meeting of the Board of Auditors was held. Attending the meeting were W.I. Brandon, Township Supervisor, and Anne Rosenthal, member of the Board of Auditors. Not attending the meeting were Gerald Compton and Clara McClure, members of the Board of Auditors. The two members in attendance voted, two votes to none, in favor of appointing J.C. Penn to fill the vacancy on the Board of Auditors.
The parties involved in the instant action have agreed that the issues involved herein are: (1) whether it was necessary for three of the four remaining members of the Board of Auditors to be present at the meeting in order to have a legal quorum and to be able to fill the vacancy and (2) whether it was necessary to have a majority vote of the remaining members of the Board of Auditors to fill the vacancy. Stated very simply, this case involves a determination of what is necessary for the lawful appointment of a Board of Town Auditors to fill a vacancy on such Board.
Section 1 of article X of "An Act to revise the law in relation to township organization" (Ill. Rev. Stat., ch. 139, § 96) provides:
"Whenever any town fails to elect the proper number of town officers to which such town is entitled by law, or when any person elected to any town office fails to qualify, or whenever any vacancy occurs in any town, from death, resignation, removal from the town, or other cause, the board of auditors of the township shall fill the vacancy by appointment, by warrant under their hands and seals * * *."
Section 2 of article X (Ill. Rev. Stat., ch. 139, § 97) provides:
"Whenever a vacancy occurs, from any cause, in the board of auditors of any township, the remaining members of the board of auditors shall fill any vacancies thus occurring by appointment as provided in Section 1 of this Article."
"Section 1 of this Article" is section 1 of article X (Ill. Rev. Stat., ch. 139, § 96), set out above.
It is readily apparent from reading these two sections of chapter 139 that the legislature did not specify the number of remaining Board members which must agree in order to fill a vacancy. The sections simply refer to "the board of auditors" and "the remaining members of the board of auditors" respectively. Are these sections then to be construed as requiring unanimous action by the remaining members of the Board of Auditors when a vacancy on such Board occurs, or do they require only action by a majority of all them or only action by a majority of those who participate in the undertaking?
As far as we can determine the instant case involves a matter of first impression in this State. Both parties involved refer to Town of Oregon v. Jennings (1886), 119 U.S. 74, 30 L.Ed. 323, 7 S.Ct. 124. However, we do not feel that case determines the matter involved here, even though in that case the Supreme Court of the United States dealt with an earlier enactment of the same statutory sections with which we are presently concerned. In Oregon v. Jennings, the town had, by Illinois law, a Board of Auditors consisting of one supervisor, two justices of the peace, and one town clerk. The statute provided that a vacancy in the office of the supervisor or of town clerk could be filled by appointment by the remaining town officers but that a vacancy in the office of justice of the peace could be filled only by election. It occurred that there was a vacancy in the office of supervisor and in one of the offices of justice of the peace. The remaining justice of the peace and the town clerk then appointed a man to the supervisor position, and the validity of this appointment was put in issue. The United States Supreme Court held the action of the remaining two officers valid under the Illinois statute.
"The supervisor and Schultz had resigned, and their offices were vacant, and it was lawful for the remaining two officers to fill the vacancy in the office of supervisor. No authority to which we are referred holds to the contrary. * * * In the present case there was not only a `vacancy' in the office of supervisor, for the purpose of filling it, under Section 1, but there was a vacancy in the office which Schultz had held, for the purpose of the action of Cartwright and Marsh alone, as the remaining officers of the appointing board, to appoint a supervisor, under Section 2." (119 U.S. 74, 90.)
If Oregon v. Jennings be authority at all for the instant case, it would only be for the proposition that it would have been lawful for all four of the remaining members of the Board of Auditors of Carbondale Township together to have appointed a person to fill the vacancy. It would not be authority for the proposition made by defendant-appellee that any two members of the remaining four members could lawfully fill the vacancy.
Both parties involved in the instant case point to sections 5 and 7 of article XIII of "An Act to revise the law in relation to township organization" (Ill. Rev. Stat., ch. 139, §§ 121, 123) and the use of the word "majority" therein. Plaintiff-appellant submits that those two sections having appeared in the same act as the sections involved herein, indicate an intention that majority action be required for any activity by the Board of Auditors. Defendant-appellee, on the other hand, asserts that, had the legislature intended to require majority action under sections 1 and 2 of article X (Ill. Rev. Stat., ch. ...