Appeal from the Circuit Court of Peoria County; the Hon.
Stephen J. Covey, Judge, presiding.
JUSTICE SCOTT DELIVERED THE OPINION OF THE COURT:
The plaintiff, Onie Maness, was appointed to the position of chief of police of the city of Elmwood, Illinois, on or about September 4, 1973, by the mayor of Elmwood, George McKinney. Although he was never reappointed to that office, the plaintiff continued to serve as chief of police until he was advised on April 2, 1982, by the defendant, David Courson, the newly elected mayor, that he was being removed. The plaintiff then filed a complaint against the defendant, and the city of Elmwood on April 15, 1982, contesting the actions of the mayor in terminating his employment as chief of police. The complaint prayed for injunctive relief to restrain the defendants from refusing to comply with statutory law regarding the plaintiff's removal and to allow him to remain as chief of police until he was properly removed and a successor chosen. The complaint also asked for a writ of mandamus directing the defendants to reinstate the plaintiff.
The plaintiff also filed a petition for preliminary injunction to enjoin the defendants from interfering with his functions as chief of police. The injunction was granted but subsequently dissolved upon the defendants' motion to vacate and/or dissolve the preliminary injunction.
Then on May 19, 1982, the defendants filed a motion for summary judgment on the plaintiff's complaint. They alleged that there were no genuine issues of any material facts. On May 4, 1982, the Elmwood City Council voted in a tie vote of three to three to approve the mayor's appointment. The mayor then voted to break the tie vote and his appointment was approved. As a result of the appointment of a qualified successor, the plaintiff had been removed from office. The defendants then asked that judgment be entered in their favor and the plaintiff's complaint be dismissed.
The trial court granted the defendants' motion for summary judgment. From that order, the plaintiff filed a timely appeal.
The issue raised by the plaintiff on appeal is whether the mayor of a municipal corporation, i.e., the defendant, may vote to break a tie vote in the city council when the vote involves confirmation of the mayor's appointee to the office of chief of police. The plaintiff argues that the instant situation is not the kind of factual situation which falls under section 3-11-14(1) of the Illinois Municipal Code, regarding tie votes. He also contends that the concept of separation of powers is violated by allowing the executive branch to exercise legislative power.
• 1 The defendants claim that the issue presented by the plaintiff is not satisfactory. They state that the issue is not whether the mayor may vote in the situation presented here but whether he must vote. The defendants contend that the defendant Courson was required to vote to break the tie under section 3-11-14(1) (Ill. Rev. Stat. 1981, ch. 24, par. 3-11-14(1)), and therefore his actions were proper.
The Municipal Code provides that:
"Unless otherwise specifically provided by statute, all officers of any city shall be appointed by the mayor by and with the advice and consent of the city counsel. * * *" (Ill. Rev. Stat. 1981, ch. 24, par. 3-7-2.)
In keeping with that statute, the defendant Courson appointed James T. Wilson as chief of police and a resolution to approve that appointment was put before the city council for a vote. The council voted to approve the appointment. Contrary to the plaintiff's argument, the two-step process of appointment and advice and consent was followed in the instant case.
The other pertinent statute involved herein provides that:
"The mayor shall preside at all meetings of the city council. He shall not vote on any ordinance, resolution or motion except; (1) where the vote of the aldermen has resulted in a tie; or (2) where one half of the aldermen elected have voted in favor of an ordinance, resolution or motion even though there is no tie vote; or (3) where a vote greater than a majority of the corporate authorities is required by this Code to adopt an ordinance, resolution or motion. * * *" (Ill. Rev. Stat. 1981, ch. 24, par. 3-11-14.)
The language of the statute commands that the mayor shall vote in three specific instances. This section has been construed to mean that the mayor has an affirmative duty to vote in the three specific situations set out in the statute. Prosser v. Village of Fox Lake (1981), 94 Ill. App.3d 78, 418 N.E.2d 461.
The facts in Prosser involved a village, a board of trustees and an acting village president. However, the powers and the duties of a board of trustees and a village president are the same as those of the aldermen of a city and a mayor, respectively, except as otherwise provided in the ...