ANSWERS QUESTIONS
By THOMAS A. MATTHEWS, J. D., League Consultant

Submit All Questions For Information In Writing

To City Attorney, Mendota:
"The rule for a $5 income tax tree allowance for policemen refers to a 'statutory subsistence allowance.' There is no 'statutory subsistence allowance' for municipal policemen in Illinois.

"Of course, if a policeman is assigned to duty away from home he could be given expense money including a subsistence allowance which I think would then come under the control of the treasury department."

To Trustee, Pulaski:
"As you have noticed, the functions of an appropriation ordinance are discussed in the handbook for municipal officials published by the Illinois Municipal League, and also, in the booklet entitled 'How to levy taxes.'

"Aside from payments out of the proceeds of a bond issue, the municipality cannot incur an expense unless there is a prior appropriation out of which the expense can be paid. Someone should be designated by the Village Board to keep records showing how much of each item in the appropriation ordinance remains unexpended from time to time during the fiscal year; ordinarily either the clerk or treasurer keeps this record.

"The amount appropriated cannot be increased after the first quarter of the fiscal year without a referendum vote."

To City Attorney, Centralla:
"I share your view that in a commission form city where only three commissioners are holding office, there being two vacancies, the council cannot pass an ordinance requiring a two-thirds or three-quarters vote—such as one for the sale of real estate, or for any other purpose for which more than a majority vote is required.

"However, in Whiteside vs. Lombard, 3 Ill. 2d 464, the court held that the provisions of the statute requiring a vote of two-thirds of the corporate authorities to annex property meant the actual incumbents in office with no consideration of any vacancy. Most of the other statutes requiring more than a majority vote require a certain percentage of the full council even though a vacancy exists."

To City Clerk, Park Ridge:
"I don't know of any ordinance requiring the curbing of dogs, although I understand some such ordinances have been passed in Eastern cities."

To Alderman, Granite City:
"The receipts from the Sales Tax may be used for any proper municipal purposes.

"A municipal building may be constructed without the issuance of bonds to finance the cost under certain circumstances. It there is an item in the Appropriation Ordinance for the construction of such a building then a contract can lawfully be entered into for the construction of the building even though there is no bond issue. The contract could be paid out of any funds the city has available.

"If the Sales Tax money has been accumulated in sufficient amounts to meet the total cost of construction or to come so close to this total cost that the balance could be reasonably paid from other sources, the contractor could be paid out of the money on hand.

"If there is a prior appropriation for the amount necessary to construct the building a simple majority of the council—as is needed for the enactment of any ordinance—would be sufficient for a resolution that the building be constructed. Actual contracts for the construction of the building could be entered into without calling for bids on a two-thirds majority (see Illinois Revised Statutes Chapter 24, Paragraph 58-1). A contract to let the work to the lowest responsible bidder could be authorized by a vote of a simple majority.

"The specific questions of the vote needed to pass the particular resolution before the council should be discussed With the city attorney."

To City Manager, Centreville:
"Excepting where the statute says otherwise, distance between a school, etc. and a tavern are measured from building to building; excepting that where a school yard is used for drills, gymnasium work, or other similar school activities, the yard itself is considered as a school.

"Some ordinances prescribe the distance to be measured from the road or premises occupied, rather than from the building, but the statute itself does not so specify."

To Village Clerk, Warren:
"The question whether a village can buy land for park purposes without a referendum is not an easy one to answer.

"Ordinarily, land may be purchased for any municipal purpose if the municipality has a prior appropriation to cover the purchase and cash available so that no bond issue would be needed.

"However, Paragraph 52-8 of Chapter 24 of the revised statutes says that no municipality having a population of less than 1,500 shall spend money to buy land for park purposes unless the project is approved by a referendum vote."

To Village Clerk, Cambridge:
"Some municipalities prohibit the occupation of a trailer coach for a permanent home by providing that no trailer coach shall be occupied for residence purposes excepting in a licensed trailer coach camp.

"Others provide that no trailer shall be converted into a permanent residence unless it complies in every respect,

November 1958 / Illinois Municipal Review / Page 254

including the size of the rooms, sanitary facilities, etc. to the ordinances relative to the construction of new buildings.

"A few municipalities have in force ordinances prescribing certain minimum standards for any place used for residence purposes; these include heating facilities, sanitary facilities and occasionally minimum floor area requirements.

"Some zoning ordinances prescribe a minimum size for any residence 'buildings which in effect would bar the use of trailers as a building.

"I do not know of any simple ordinance that could be sent but the problem can be met in one of the above ways."

To City Clerk, Chester:
"There is no provision for filling a vacancy in the office of alderman by appointment; such a vacancy can be filled only by a special election, or at a regular election."

To City Attorney, Mendota:
"Although under Article 14 of Chapter 24 as it now reads 'The Fire and Police Commissioners act applies automatically to all municipalities of 5,000 population or over,' there is no provision to cover the eventuality that the council might continue to refuse to approve nominations made by the mayor to the Board of Fire and Police Commissioners.

"No policeman can be hired, promoted or discharged until such a Board is created."

To City Attorney, Morrison:
"I believe that the Chief of Police or whoever is in charge of the Police Department can be authorized to set the amount of a bond and receive a bond for persons arrested for any ordinance violation, when no Mayor or Justice of the Peace is available.

"Of course, if the arrested person insists, he is entitled to have the bond fixed by a Justice of the Peace or a Police Magistrate."

To Attorney, Tamms:
"Although there is no decision on the subject, it has generally been considered that the maintenance of a municipal volunteer fire department—even unpaid—authorizes the collection of the 2% tax on the premises of 'foreign' fire insurance companies.

"The Illinois Municipal League collects this money for scores of municipalities where the fire department is a volunteer one. There should be an ordinance establishing the department, and the executive office can send a copy if you wish one."

To City Attorney, Belleville:
"I have always felt that it was necessary to establish through streets, one-way streets, stop intersections, and restricted parking areas by ordinance.

"An ordinance purporting to grant to the Chief of Police or to a Traffic Committee or any other body or individual the right to determine where the through street should be, or where parking should be restricted, or where stops are to be required, would I think be invalid as an attempted delegation of legislative powers.

"You will note that we sometimes in drafting a traffic ordinance or the traffic chapter of the code, include a provision that it shall be unlawful to drive a vehicle into a through street without first coming to a stop; or to drive a vehicle into a stop intersection without first stopping then, in another section we provide that through streets shall be such as may be designated from time to time by the city council. I think this designation should be by ordinance."

To Director of Finance, Woodstock:
"The statute relative to the 2% foreign fire insurance company tax provides that this money shall be turned over to the Treasurer of the Fire Department," and paid out on order of the Fire Department for the maintenance, use and benefit of the Fire Department.

"Where there is a Fireman's Pension Fund the entire proceeds of this tax may be turned over to the Firemen's Pension Fund."

To Village Clerk, Mazon:
"Since the municipality selects the Justice or Magistrate before whom an ordinance violation case is to be tried in the first instance; the provision that either party may ask for a change of venue would hardly apply then. If a change of venue is asked by defendant and the municipality has a legislative reason for asking for a change of venue from the magistrate to whom it is then assigned the municipality would have the right to ask for a change of venue."

To Village Clerk, Moweaqua:
"If a sewer line is laid in a public alley, in accordance with an agreement or permit issued by the village the terms of that agreement would control. Otherwise, I believe the village would have control over the line laid in the alley.

"The above are the general principles which should be discussed with your village attorney."

To Village Clerk, Elsah:
"The village may vacate a street or portion thereof, reserving the right to install or maintain sewer lines or similar municipal facilities at the time of the vacation. On a vacation of a street, title ordinarily goes to the owners of the adjoining property each taking to the middle.

"The matter should be discussed with the village attorney."

To City Attorney, Belleville:
"The problems created by the annexation to a city or village of territory that is within the fire protection district have not been settled by statute. As I understand it now, the municipality's fire protection tax is collected against the property in the annexed area and both the municipality and the fire protection district are obligated to render service in the event of fire.

"Fire hydrants can be maintained by the city in the annexed area on the same basis as anywhere else.

"I do not recall any Appellate or Supreme Court decision on the subject, but it is the consensus of most

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ANSWERS TO QUESTIONS

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attorneys that upon annexation of a portion of a fire protection district to a city which levies a fire protection tax this tax is levied against the annexed property."

To Corporation Counsel, Galesburg:
"When a municipality has adopted the city manager form, and has not retained the election of aldermen by wards, I believe the provisions of Chapter 24, Paragraphs 9-29 are no longer applicable. The use of the term 'wards' in such a city is misleading.

"The council has the power and duty to divide the city into voting districts or precincts, without limitation as to the number of such voting districts excepting those limitations dictated by convenience including compliance with the requirement in the general election law that precincts showing a vote of more than 800 should be divided.

"I think the number of voting districts or precincts into which the city may be divided now is entirely within the discretion of the city council."

To Commissioner, Spring Valley:
"Quite a few municipalities have adopted an ordinance prohibiting the occupation of a trailer for residence purposes anywhere except in a licensed trailer camp; others have adopted different forms of ordinance with the same purpose—to prohibit the use of trailers for residence purposes other than for temporary use.

"Your own city attorney can tell you better as to the validity of your particular ordinance, but so far as I know, none of the ordinances of this sort have ever been held unconstitutional in Illinois."

To City Collector, West Chicago:
"After a city has adopted Civil Service, the Council creates what offices and positions are to exist in the city administration, and the Civil Service Commission may classify them for rank and grade. The Civil Service Commission does not and cannot create offices or positions.

"An office filled by appointment by the Mayor with the consent of the City Council is not under Civil Service.

"Your Civil Service rights depend upon whether you have a position of employment properly created by ordinance and under Civil Service. Precise advice to you as to your status would have to come from the attorney for the city. I presume the city will retain an attorney shortly in view of the vacancy in that position now."

To Village Clerk, Cutler:
"The matter of regulating solicitors or door-to-door salesmen is covered by an article in the August 1951 issue of the Illinois Municipal Review.

"The enclosed bulletin on municipalities powers to license businesses gives a fair over-all picture of the licensing power of cities and villages, excepting that under a recent decision of the Supreme Court municipalities may license cement contractors and building contractors—other than plumbers—where there is a building ordinance."

To Mayor, Rushville:
"Your ordinance for sewer revenue bonds was apparently the customary ordinance providing for the issuance of bonds payable from the sewer revenue. Only persons making use of the sewer system could be charged therefor. There is no authority for charging the owners of premises not served by the sewer system a service charge for the use of that system.

"You should discuss this matter with the city attorney but the foregoing are the general principles applicable.

"It seems clear from your ordinance itself that a person using municipal water but having no connection with the sewer system would not pay the sewer charge."

November 1958 / Illinois Municipal Review / Page 262