Answers to Questions

By THOMAS A. MATTHEWS, J. D., League Consultant
SUBMIT ALL QUESTIONS FOR INFORMATION IN WRITING

To Village Clerk, Lynnville:
"The President and board of trustees of a village constitute the governing body and may exercise the powers granted by statute. No referendum is required for the enactment of an ordinance unless a statute specifically requires it.

"Generally a referendum is only required for a proposition to increase the tax rate over the limit set by statute, or to issue bonds. No referendum is required for enactment of proposed tax levy ordinances, the issue of tax anticipation, or the payment or incurring of expenses for the operation of the village."

To Attorney, Alton:
"The fact that the Mayor is ex officio a member of the Plan Commission does not prevent him from being chairman thereof. Many people confuse the term ex officio with the term de facto.

"Since the Mayor, by virtue of being Mayor, is a member of the Plan Commisaion, he is a full fledged member and may be chairman."

To Alderman, DeKalb:
"It is ordinarily the responsibility of the city to keep sidewalks in repair. Where a sidewalk is completely worn out, so as to require replacement, that work can be done by special assessments and the cost charged to the abutting owners."

To Village President, Ashland:
"There should be an ordinance if the municipality wishes to close streets around a school at certain times during the school year.

"Streets that are State highways cannot be closed without the consent of the Division of Highways."

To Village Clerk, Sublette:
"The municipality may install extensions on its water mains if it can finance the cost thereof; or it may permit persons living some distance from existing mains to construct a connecting pipe to the main.

"I know of no way in which the village could be forced to extend its water main system excepting by a petition filed under the local improvement act."

To Village Clerk, Thebes:
"The village should be represented by an attorney in the matter of objections to the tax levy.

"A copy of an ordinance does not contain the signature of the Mayor or President but does contain a certificate by the clerk that the attached is a copy of an ordinance passed on a certain date. The original of an ordinance is the one that was presented, passed and signed by the President.

"Whether the document you filed was an original or a copy does not depend upon whether it was a carbon but upon whether it was actually the ordinance presented. Your attorney should advise you as to the case now pending."

To Village President, Germantown:
"I do not know of any authority for a municipality to spend municipal funds to light streets outside the corporate limits, and in the absence of such authority It would not be proper to do so."

To Attorney, Litchfield:
"Permanent positions on the police department are to be filled by appointment by the Board of Fire and Police Commissioners. Many municipalities have a so-called auxiliary police force consisting of men who are called upon from time to time and who are designated as special policemen. These men do not form a part of the police department and are generally appointed by the Mayor or Village President as special policemen. They are paid by the village or city only when called upon for temporary duty."

To Attorney, South Jacksonville:
"In reply to your June 13th letter, the history of the cases involving the right of a city to pay a fee for the use of its streets—which involves the question whether a franchise ordinance is necessary — is covered in quite a few cases.

"In Geneseo vs. Ill . Northern, 363 Ill . 89 (and in other cases cited there), the court held that a franchise was not necessary and the city could not compel utilities to pay for the use of the streets. This decision was apparently reversed in Geneseo vs. Ill. Northern. 378 Ill. 507, whero the court held that a franchise ordinance way necessary. Subsequently, we have had several decisions involving the right of municipalities to compel a utility company to pay for the use of the streets. These include Chicago Heights vs. Western Union. 406 Ill. 428; Lombard vs. Ill. Bell, 405 Ill. 209; Chicago Heights vs. Public Service Company, 408 Ill. 310; and 604.

"These later decisions do not specifically state that a utility can operate without. a franchise, but do state that the city cannot charge for the use of its streets. Perhaps they can be reconciled with Geneseo vs. Ill . Northern, 378 Ill . 507. That decision involved the right of the city to compel the removal of poles and wires by a privately owned utility company where it appeared that the city was operating a municipal light plant, to serve the area. It might be that the decisions in cases involving compensation do not affect the rule that a franchise is necessary, but merely hold that a city cannot change for that franchise.

"Where a franchise has been voluntarily accepted by a utility company or a bus line, a provision in that franchise ordinance that the utility must pay a percentage of its gross receipts has been held valid and enforceable, (Peoria vs. Peoria Transit Lines, 11 Ill . Second 520)."

To Attorney, Chester:
"The only special tax for cemetery purposes provided for in the statutes is that found in Chapter 24, Paragraphs 16-1, providing for a special tax in municipalities of less than 15,000, after a referendum."

Page 166 / Illinois Municipal Review / July 1958

ANSWERS TO QUESTIONS

(Continued from page 166)

To Attorney, Hinckley:
"There is no special provision for calling a special election to fill a vacancy in the office of Police Magistrate. I don't think that the village board has the power to appoint to fill that vacancy, but it could provide for village cases to be brought before a Justice of the Peace, who would then perform all the duties of a Police Magistrate.

"Some attorneys have decided that a special election can. be called by the village to fill a vacancy in the office of Police Magistrate, and I know that procedure has been followed without question occasionally!"

To Attorney, Metamora:
"I think an ordinance requiring down-spouts to be disconnected from the storm water drain system would be held valid if under the facts there was a reasonable basis for the ordinance. There is no doubt that the village can prohibit connecting storm water drains with sanitary isewer or with a combination sanitary and storm water sewer if there is danger of flooding. The same would apply to a connection with an ordinary storm water drain if the drain were overtaxed."

To Trustee, West Point:
"If a street has been dedicated as such, the village may accept it and improve it for street purposes even though it has been unused for a period of years.

"The railroad is required to cut down the weeds on its right-of-way; this is a matter for the state's attorney' or the commerce commission to take charge of."

To Attorney, Chester:
"I believe that compensation for Aldermen must be fixed by; ordinance since the statute merely sets the maximum that can be paid. I believe the payment per meeting applies to both regular and special meetings."

To Alderman, Keithsburg:
"Where bids are called for construction work, the Board is authorized to let the contract to the lowest responsible bidder; sometimes the Board is justified in letting the contract to one who is not the lowest bidder in figures because of a difference in responsibility.

"Excepting for contracts to be paid out of special assessments, the Board may by a two-thirds vote let any contract without calling for bids. Contracts under the motor fuel program must be approved by the state.

"Your village attorney can advise you as to the precise question you ask after studying the facts."

Page 168 / Illinois Municipal Review / July 1958