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Hill v. Butler





APPEAL from the Circuit Court of Sangamon County; the Hon. SIMON L. FRIEDMAN, Judge, presiding.


Plaintiffs appeal from an order of the circuit court of Sangamon County dismissing their amended complaint for mandamus to compel defendants, the board of managers of Chatham Township, to hold a referendum pursuant to section 15 of "An Act in relation to township community buildings" (Ill. Rev. Stat. 1981, ch. 139, par. 160d2).

The trial court's written order found that the Community Building was operated and managed by the board of managers pursuant to the Act and that the provisions of the Act, as amended, were fully applicable to the defendant board of managers, and that "amendments to said Act subsequent to the acquisition of the community building in question bind and are effective against the said Defendants." The court found, however, that in adopting the provisions of section 15 of the Act, the General Assembly "[d]id not intend to permit a municipality to take property by the use of a petition as was filed in this matter." In colloquy, the trial judge spoke of the procedure as a form of eminent domain by one municipality against another.

Defendants have cross-appealed from that portion of the trial court order which found that section 15 had been adopted by them within the meaning of the statute. We reverse the order of the trial court granting defendants' motion to dismiss and remand for further proceedings.

Plaintiffs were among the more than 50 persons to sign petitions calling on the board of managers of Chatham Township to hold an election on the question of the sale to the village of Chatham of the Chatham Township community building for the sum of $10. The complaint alleged that petitions calling on the board of managers to hold a referendum had been duly presented to the board; that the township had adopted the provisions of section 15 of the Act; that section 15 mandates the certification of the question by the board at the next general election on the terms set forth in the petitions, and that defendants had refused to certify the same as required by law.

Defendants, both in their motion to dismiss at trial and on appeal, have argued (1) that plaintiffs lack standing to enforce section 15, (2) that section 15 does not allow for a process of voter initiative, (3) that section 15 has not been adopted by them, (4) that the petitions were not presented in accordance with law, and (5) that the statute cannot apply to a building constructed before its enactment. Additionally, defendants argue that the statute does not allow property to be taken in the manner plaintiffs have attempted.

• 1 Though the statute at issue has been in existence for 27 years, its interpretation and the question presented have not been previously considered by the reviewing courts> of this State. Further, no legislative history is available as guidance to this court. We must, in all cases of this nature begin with the language of the statute, giving it its plain and ordinary meaning. City of East Peoria v. Group Five Development Co. (1981), 87 Ill.2d 42, 429 N.E.2d 492.

Section 15 provides in part:

"Whenever a petition signed by not less than 50 electors of a town which has adopted the provisions of this Act, is presented to the Clerk of the Board of Managers requesting the sale of a community building, or site with a community building thereon to a school district or other municipality, which petition shall set forth the school district or municipality to which the proposed sale shall be made, the sale price and the township fund to which the proceeds of such sale be transferred, the Board of Managers shall certify that proposition to the proper election officials, who shall submit such proposition at an election in accordance with the general election law to decide whether or not the property shall be sold; and if a majority of the voters voting upon the proposition is in favor of the sale, then the Board of Managers, upon receipt of the purchase price, shall convey the property to such school district or other municipality." (Emphasis added.) Ill. Rev. Stat. 1981, ch. 139, par. 160d2.

• 2, 3 First, we address the standing of the individual plaintiffs to maintain the present action for mandamus. In plaintiffs' complaint it is alleged that each individual plaintiff is now, and has at all times been, a resident and qualified elector of Chatham Township, Sangamon County. It is clear that by virtue of defendants' motion to dismiss, this well-pleaded fact in plaintiffs' complaint stands as admitted. (Brooks v. Village of Wilmette (1979), 72 Ill. App.3d 753, 391 N.E.2d 133.) Defendants' motion to dismiss also pointed out that plaintiffs, while electors of Chatham Township, were trustees of the Village of Chatham. Though defendants' motion to dismiss is not designated as a motion pursuant to section 2-619 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2-619; formerly ch. 110, par. 48), we will treat it as such on this point and consider the additional matter raised by them. Cain v. American National Bank & Trust Co. (1975), 26 Ill. App.3d 574, 325 N.E.2d 799.

• 4 The concept of standing to bring suit requires that parties before the court seeking relief have a sufficiently protectable interest pursuant to statute or common law which is alleged to be injured. Thus, courts> are to decide only specific controversies and not moot or abstract questions. (Lynch v. Devine (1977), 45 Ill. App.3d 743, 359 N.E.2d 1137; Retail Liquor Dealers Protective Association v. Schreiber (1943), 382 Ill. 454, 47 N.E.2d 462.) In the context of standing to seek the relief of mandamus, our supreme court has stated:

"Where the object is the enforcement of a public right, the people are regarded as the real party, and the relator need not show that he has any legal interest in the result. It is enough that he is interested as a citizen in having the laws properly executed." Retail Liquor Dealers Protective Association v. Schreiber (1943), 382 Ill. 454, 459, 47 N.E.2d 462, 464.

• 5 We conclude that the individual plaintiffs are precisely of the class to whom the right of petition is given pursuant to section 15, and that their interests in having the defendants comply with section 15 is sufficient to confer them with standing. The fact that they also have other capacities is irrelevant. They have demonstrated their right to petition for referendum under the statute and have alleged the denial by defendants in derogation of this right. This we conclude to be sufficient.

• 6 The Village of Chatham we believe does not have standing. Under section 15, the proposed transferee, in this case, the village, has no right to purchase the property until after the question has been duly presented and passed by the voters of the township. Thus, any interest the municipality has is contingent on the success of the referendum, and any ...

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