Appeal from the Appellate Court for the Second District; heard
in that court on appeal from the Circuit Court of Lake County,
the Hon. William Gleason, Judge, presiding.
JUSTICE WARD DELIVERED THE OPINION OF THE COURT:
The plaintiff, Ronald Prosser, a trustee of the village of Fox Lake, brought an action against the village and several of the trustees and officers of the village for a permanent injunction against the operation of two ordinances that he claimed were passed in violation of section 3-11-17 of the Illinois Municipal Code (Ill. Rev. Stat. 1979, ch. 24, par. 3-11-17). Section 3-11-17 requires "the concurrence of a majority of all members then holding office" on a village's board of trustees for the passage of an ordinance. The issue for our review is whether the failure of an elected trustee, who serves also as the acting village president, to vote on a proposed ordinance during a meeting of the trustees at which he was present constitutes concurrence in the action taken by the majority of those voting.
Ordinance No. 79-5 established the office of village president as a full-time position. Ordinance No. 79-6 set the annual salary of the village president at $22,000 and fixed the compensation of village trustees at $75 for each regular meeting attended and $50 for each special meeting attended. At a meeting of the village's board of trustees on April 16, 1979, roll-call votes were taken on the proposed ordinances. Five of the village's six trustees, including the acting president, were present. The recorded minutes of the meeting show that trustees Kiesgen, Berdnick, and Krueger voted "aye" on each proposal; trustee Misiek voted "nay" on each; trustee Prosser was absent; and trustee Hamm, who was the acting village president, did not vote. The record shows that Hamm did not vote on the advice of the village attorney that his vote was not necessary for passage. Both ordinances were designated "approved," signed by Hamm as acting president, attested to by the village clerk, and published within the 30-day period prescribed by section 1-2-4 of the Illinois Municipal Code (Ill. Rev. Stat. 1979, ch. 24, par. 1-2-4).
The plaintiff sought to enjoin enforcement of the ordinances on the ground that the three "aye" votes did not constitute "the concurrence of a majority" of the six board members. (Trustee Hamm was legally qualified to serve as acting village president, but under section 3-11-14 of the Illinois Municipal Code (Ill. Rev. Stat. 1979, ch. 24, par. 3-11-14) he was prohibited from voting in both of his capacities, i.e., as trustee and as acting president.) The plaintiff and the defendants filed motions for summary judgment. The circuit court of Lake County, interpreting the acting president's signing of the ordinances as a "concurrence" within the meaning of section 3-11-17, entered summary judgment in favor of the defendants. The appellate court, with one justice dissenting, reversed and entered summary judgment in favor of the plaintiff (94 Ill. App.3d 78). We granted the defendants' petition for leave to appeal. 73 Ill.2d R. 315.
We would note that many of the provisions of the Illinois Municipal Code make reference to "city council" and "mayor." Those provisions are applicable also to village government, since section 3-12-5 (Ill. Rev. Stat. 1979, ch. 24, par. 3-12-5) provides that a village's board of trustees, consisting of the president and the trustees, "shall pass ordinances, resolutions, and motions in the same manner as a city council." See also Ill. Rev. Stat. 1979, ch. 24, pars. 3-12-2, 3-12-3.
Though the legislative body of a municipality may determine its own rules of procedure in the adoption of ordinances (Ill. Rev. Stat. 1979, ch. 24, par. 3-11-11), the record does not show that the village of Fox Lake had done so. The proceeding here was governed by the pertinent statutory provisions.
Section 3-11-17 states that "[t]he yeas and nays shall be taken upon the question of the passage of the designated ordinances, resolutions, or motions and recorded in the journal of the city council." (Ill. Rev. Stat. 1979, ch. 24, par. 3-11-17.) The statute provides for the taking of only two types of votes — "yeas" and "nays." Thus, an attempt to vote other than "yea" ("aye") or "nay," for example "abstain" or "present," is not deemed to be a vote. See Launtz v. People ex rel. Sullivan (1885), 113 Ill. 137.
If a quorum is present, municipal legislators cannot avoid their voting responsibilities by refusing to vote when present at a meeting. (See Launtz v. People ex rel. Sullivan (1885), 113 Ill. 137; see also People ex rel. Anderson v. Chicago & North Western Ry. Co. (1947), 396 Ill. 466.) A legal significance or effect must be given to each failure to vote by a municipal legislator who is present at a board meeting in order to prevent frustration or abuse of the legislative process. (State ex rel. Young v. Yates (1897), 19 Mont. 239, 47 P. 1004.) He should not be allowed to have his physical presence counted toward the constitution of a quorum and at the same time be allowed to deny, in effect, his official presence by a failure to vote. Thus, a municipal legislator's failure to vote either "yea" or "nay" on a proposed ordinance must be interpreted to have the same effect as either a "yea" or a "nay" vote.
Launtz v. People ex rel. Sullivan (1885), 113 Ill. 137, involved a city council's vote on a motion to approve the city treasurer's bond. Four aldermen voted in favor of the motion and the remaining four refused to vote. The mayor also voted in favor of the motion and declared that the motion had carried. This court did not invoke the common law rule that a failure to vote constitutes acquiescence with the majority of those voting. Instead it said that the motion has passed regardless of whether the four refusals to vote were considered as "yeas" or "nays." If considered to be "yeas," the motion carried eight votes to none. If the refusals to vote were considered to be "nays," the aldermen were deadlocked at four votes in favor and four votes against. In that event, the mayor was entitled to cast his "yea" vote and the motion carried. It is to be observed that while the court did not decide whether the refusals to vote were to be deemed "yeas" or "nays," it is clear that it judged that the refusal to vote was not to be considered of no significance. The court's reasoning shows that it deemed that the refusal to vote was to have a legal effect on the balloting.
The effect of voting to "abstain," or to "pass," or voting "present" or of refusing to vote when present at a meeting depends on whether "the affirmative vote" of a majority or "the concurrence" of a majority, of either the quorum or of all members then holding office, is required for passage. If "the affirmative vote" of a majority of either standard is required (e.g., Ill. Rev. Stat. 1979, ch. 24, par. 11-74-6), then nothing less than a majority of "yea" or "aye" votes will result in passage. An attempt to vote to "abstain" or in any manner other than "yea" or "nay," or a failure to vote shall be considered to have the effect of a "nay" vote. Where the "concurrence" of a majority is required for passage, the holding in most of the jurisdictions where the issue has been considered is that a vote of "pass," "present," or "abstain" or a failure to vote when present constitutes an acquiescence or concurrence with the members of the majority who did vote on the question involved. This is described in The Law of Local Government Operations: "It is a general rule that those members present at a meeting consisting of a quorum must vote against a proposal in order to defeat it. If members are present and refuse to vote, they are deemed to have consented to the majority decision." (Rhyne, The Law of Local Government Operations sec. 5.6, at 77 (1980). (See also Annot., 63 A.L.R.3d 1072, 1083 (1975); Froehlich, Effect of Council Members Voting "Abstain," "Pass," or "Present," 59 Ill. Municipal Rev. 15 (June 1980).) This holding of a majority of jurisdictions developed from the common law rule pertaining to elections announced in Rex v. Foxcroft (1760), 2 Burr. 1017, 1021, 97 Eng. Rep. 683, 685: "Whenever electors are present, and do not vote at all (as they have done here,) `they virtually acquiesce in the election made by those who do.'"
Hamm's failure to vote as a trustee operated as a concurrence with the approving votes of the three trustees, i.e., Kiesgen, Berdnick, and Krueger, who constituted a majority of the trustees who actually voted. Trustee Misiek voted against the ordinances. Thus, ordinances 79-5 and 79-6 were passed by a margin of four to one. See Annot., 63 A.L.R.3d 1072, 1083 (1975); Froehlich, Effect of Council Members Voting "Abstain," "Pass," or "Present," 59 Ill. Municipal Rev. 15 (June 1980).
The plaintiff contends that even if Hamm's failure to vote is considered as a concurrence with the majority, the ordinances are invalid, since no vote was recorded for Hamm as section 3-11-17 of the Illinois Municipal Code requires. There is no merit in this. Under the circumstances, the village clerk could not reasonably be expected to describe the conduct of Hamm other than as a failure to vote. It was only after prolonged litigation that it has been determined that Hamm's inaction or failure to vote should be given the effect of a "yea" vote.
For the reasons given, the judgment of the appellate court is reversed. The judgment of the circuit court ...