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Illinois Municipal Law – Organization, Govermental Forms and Dissolution

1. Organization, Governmental Forms, and Dissolution

2. Elections

3. Procedures and Practices

4. Officers and Employees

5. Municipal Personnel Practices

6. Police Departments and Fire Departments

7. Police Power

8. Ordinances

9. Adjudication of Ordinance Violations

I. Introduction

A. [1.1] Scope of Chapter

[1.2] General Concepts and Definitions

[1.3] Elections and Referenda

[1.4] Notice Procedure

[1.5] Multiple Petitions

II. Organization of Municipalities

A. [1.6] General Law

B. Selection of Name

1. [1.7] Registration of Name

2. [1.8] Taking Name

C. [1.9] Incorporation of Cities

1. [1.10] Area

2. [1.11] Petition

3. [1.12] Notice of Hearing

4. [1.13] Hearing

5. [1.14] Referendum

6. [1.15] Election of Officers

D. Incorporation of Villages

1. [1.16] Area

2. [1.17] Petition

3. [1.18] Hearing

4. [1.19] Referendum

5. [1.20] Election of Officers

III. Reorganization of Municipalities

A. [1.21] Change of Incorporated Town to Village

1. [1.22] Petition

2. [1.23] Referendum

B. [1.24] Change of Charter Cities, Towns, and Villages to Municipalities Under General Law

1. [1.25] Petition in Charter City

2. [1.26] Petition in Charter Town or Village

3. [1.27] Notice and Referendum

4. [1.28] Officers

C. Change of City to Village

1. [1.29] Petition and Referendum

2. [1.30] Election of Officers

D. [1.31] Change of Portion of Any Village or Incorporated Town to Village

1. [1.32] Area

2. [1.33] Petition

3. [1.34] Referendum

4. [1.35] New Officers

E. [1.36] Change of Name

1. [1.37] Petition

2. [1.38] Certificate of Secretary of State

3. [1.39] Hearing on Petition

4. [1.40] Filing of Ordinance

5. [1.41] De Facto Change of Name

6. [1.42] Unincorporated Villages and Towns

IV. [1.43] Operational Forms of Government

A. Special Charter and General Law Forms

1. [1.44] Special Charter

2. [1.45] 1870 Constitution

3. [1.46] General Charter

a. [1.47] Delegation of Authority

b. [1.48] Proper Exercise of Power

4. [1.49] Recapitulation ‚” Dillon’s Rule

B. [1.50] Aldermanic and Trustee Forms

1. [1.51] Differences Between Cities and Villages

2. [1.52] Representation at Large vs. Representation by Wards or Districts

C. [1.53] Managerial Form

1. [1.54] Petition or Ordinance Calling for Election

2. [1.55] Referendum

3. [1.56] Representation

4. [1.57] Chief Administrative Officer

5. [1.58] Passage of Ordinance Pursuant to Referendum

6. [1.59] Practical Effect of Form

7. [1.60] Abandonment of Form

D. [1.61] Administrator Form

E. [1.62] Commission Form

1. [1.63] Petition and Hearing

2. [1.64] Notice

3. [1.65] Referendum

4. [1.66] First Officers and Meetings

5. Specific Officers

a. [1.67] Petition and Referendum

b. [1.68] Principal Officers

c. [1.69] Departments and Personnel

6. [1.70] Practical Disadvantages

7. [1.71] Advantages

8. [1.72] Abandonment

F. [1.73] Strong Mayor Form of Government

1. [1.74] Petition

2. [1.75] Hearing

3. [1.76] Result of Referendum

4. [1.77] Powers of Mayor

5. [1.78] Representation by Wards or Districts

6. [1.79] Passage of Ordinance Pursuant to Referendum

G. [1.80] Constitutional Form

V. [1.81] Dissolution and Consolidation of Municipalities

A. [1.82] Involuntary Dissolution

B. [1.83] Voluntary Dissolution

1. [1.84] Action by Officers

2. [1.85] Action by Creditors and Others

C. Consolidation of Municipalities

1. [1.86] Power To Consolidate

2. [1.87] Resolution or Petition; Referendum

3. [1.88] Proposed Ordinances; Form of Government

4. [1.89] Transition

5. [1.90] Permanent Name

6. [1.91] Effective Date of Consolidation

7. [1.92] Election of Officers

VI. Appendix

A. [1.93] Manager Ordinance ‚” By Referendum

B. [1.94] Manager Ordinance ‚” By Ordinance

I. INTRODUCTION

A. [1.1] Scope of Chapter

An essential part of representing municipal governments is understanding their formation and

composition. In this chapter, accordingly, the organization, operational forms, and dissolution of

municipalities are discussed.

B. [1.2] General Concepts and Definitions

A ‚“municipal corporation‚ has been defined as a public corporation created by government

for political purposes and having subordinate and local powers of legislation. People ex rel.

Mortell v. Bergman, 253 Ill. 469, 97 N.E. 695 (1912); BLACK’S LAW DICTIONARY, p. 1042

(8th ed. 2004). As they exist today, these public corporations can be compared with private

corporations. Just as private corporations have a charter under which they are organized, so, too,

municipalities have a ‚“charter‚ in the sense that they are organized under the general law as it

exists in the Illinois Municipal Code (Code), 65 ILCS 5/1-1-1, et seq. Just as shareholders control

the operations of a private corporation by ratifying a charter and electing a board of directors, the

citizens comprising the electorate control the workings of the public corporation by opting to

form either a city or a village under one of the forms provided in the Code and by electing

officials (city council or village board), who in turn carry on the business (government) and

affairs of the city or village by passing and adopting ordinances (akin to bylaws passed by the

board of directors of a private corporation).

[My Commentary] So, if we look at it in these terms, we could say that Ford is a corporation (municipality) that is owned by the shareholders (Citizens/electors) who in turn elect the Officers, or Board (City Council, Mayor…) to perform the duties set forth in the Charter which were written to control the function of the “body” in achieving the ends of the shareholder/citizen. This body, in turn, passes ordinances (By-laws) that regulate the functions of that body in meeting the objectives of the shareholder/citizen. The shareholders believe that their dividends (benefits) are being wasted on providing health care coverage to workers (City employees) who smoke, and therefore want to make Ford a non-smoking company (municipality).‚  The Board of Ford (City council) passes an ordinance (By-law) that prohibits smoking for employees of Ford (City employees). Now, does that mean that Ford can force the smoking shareholders to quit smoking as well? No. The shareholders are not subject to the regulations governing the operation of the corporate body of Ford, the same way that Citizens are not subject to the regulations (ordinances) of the corporate body (Collinsville).

So, how do we, the People, create a government that is laid out with a charter and by-laws for the purpose of securing our freedoms and liberty, as well as performing in a collective capacity that which would be otherwise inefficient or cumbersome for us to perform individually? Why, you take up “residency”, of course. Normally, Citizens retain all of their natural rights that are protected by the Constitution. However, if you want to derive any of the “corporate benefits” of the “corporation”, you must become a resident of that corporation and therefore subject to the governing by-laws of that corporation. You do not need to be a resident to walk into a public library and read a book. However, in order to take that book out of the library’s control and have it entrusted to you for safe-keeping and return, you must be a resident of that corporate body which subjects you to the ascribed penalties for violating your agreement with the library for the use and safe return of that book. That library card, that you have to sign (give your permission and therein claim the status of resident) your name and claim residency. That contract is then enforceable with fines and punishment for your violating any provision of that agreement.

Residents derive benefits or exercise privileges that Citizens do not. If your tax dollars are going to fund a function of government then you have paid your way and are asking for nothing more than a Citizen is entitled to. However. if you are deriving a benefit that cannot be traced to a service provided through your payment of taxes, then you are acting as a resident. Most of the things provided by government in its proper capacity are paid by our taxes, i.e.., water, sewer, trash, roads…etc. The City gets you to claim the status of resident in order to receive these services, which is a trap, but you are not automatically conscripted to the ordinances unless they specifically apply to a particular benefit derived.

1. [1.3] Elections and Referenda

By necessity, the matter of certain elections and referenda also is discussed in this chapter.

While the specific statutory requirements with which there must be compliance are noted, it is

generally understood that such referenda usually are commenced by the filing of a petition with

the circuit court, which must then (a) conduct a hearing, (b) fix a time and date for an election on

the given proposition, (c) publish notice of election, (d) canvass the election returns, and (e)

judicially determine the election result.

2. [1.4] Notice Procedure

Procedures for the giving of proper notice of election in specific instances usually are

included in the applicable statutes. However, in summary, the usual manner of providing notice

of election is by either (a) publication thereof at least once, not more than 30 nor less than 15 days

in advance of the election (referendum), in one or more newspapers published in the city or

village or, if no newspaper is published in the city or village, then in one or more newspapers

with a general circulation in the city or village; or (b) in municipalities with less than 500

population in which no newspaper is published, posting the notice of election in three prominent

places within the municipality.

3. [1.5] Multiple Petitions

Sometimes more than one petition to form a city or a village or to change the existing form of

incorporation may be filed praying that different propositions be presented to the electorate. For

example, if one petition requests a vote on adoption of the commission form and another petition

requests a vote on the adoption of the managerial form, both propositions may be submitted at the

same election, but each proposition must be stated separately, and in the event they conflict with

one another, the proposition receiving the larger majority is adopted. Illinois Municipal Code ‚§5-

1-13. See also ‚§1.34 below regarding multiple petitions to incorporate a portion of a village or

incorporated town as a new village.

II. ORGANIZATION OF MUNICIPALITIES

A. [1.6] General Law

Before 1870, every city, village, or other incorporated town was formed by a special charter

or special act of the state legislature. After the adoption of the 1870 Illinois Constitution, in which

this type of special charter or act creating municipalities was prohibited, the Illinois legislature

enacted a general Cities and Villages Act, passed by the 27th General Assembly in 1872. Because

the 1870 Constitution provided that no act could be broader than its title, the Cities and Villages

Act so adopted and passed by the General Assembly was limited in its applicability to cities and

villages and not to incorporated towns. As a result, since 1872 the only type of ‚“incorporated

town‚ has been a city or a village because the only methods of incorporation available are those

established in the Cities and Villages Act.

[My Commentary] Confused? Allow me to explain. The 1870 Constitution prohibited, though the use of special charters, the incorporation of:

1. Cities

2. Villages

3. Towns

Nowhere in the 1870 Constitution does it say that the legislature “may” incorporate “anything”, it merely says that the legislature “may not” so charter these things. So, the legislature passed an act which allowed for the incorporation of “Cities and Villages”, but not “Cities, Villages, and Towns”. Since the 1870 Constitution said that no act can be broader than its title, the “Cities and Villages Act” was limited to Cities and Villages instead of Cities, Villages and Towns.

This is like the constitution saying that the state may not regulate cats, dogs, and hamsters; but the legislature creates the Cats and Dogs Act, which does not regulate hamsters. Since the title of the act does not include hamsters, the constitution was not violated by the act, because they are only regulating Cats and Dogs. I believe that the spirit of the 1870 Constitution could be interpreted to mean that the incorporation of “ANY” type of municipality would not be allowed. Otherwise, why wouldn’t the constitution state that towns would not be incorporated, but Cities and Villages would?

From 1870 to 1970, all municipalities in Illinois were subject to the Cities and Villages Act, a general incorporation act that enumerated the governing powers given to all cities and villages in the state, prohibited special legislation, and instead reserved powers exclusively to the state legislature. It was during this time that Collinsville became incorporated as a City.

As a result, Collinsville is statutorily considered to be properly incorporated pursuant to State statutes under the following:

(65 ILCS 5/1‚”˜1‚”˜3) (from Ch. 24, par. 1‚”˜1‚”˜3)
Sec. 1‚”˜1‚”˜3. All existing municipalities which were incorporated or which changed their corporate organization under “An Act to provide for the incorporation of cities and villages,” approved April 10, 1872, as amended, and all existing municipalities which were incorporated under any general act prior to July 1, 1872, shall be treated as properly incorporated under this Code.

Of course, the 1970 Constitution does define what a municipality is, to wit:

SECTION 1. MUNICIPALITIES AND UNITS OF LOCAL GOVERNMENT
“Municipalities” means cities, villages and incorporated towns. “Units of local government” means counties, municipalities, townships, special districts, and units, designated as units of local government by law, which
exercise limited governmental powers or powers in respect to limited governmental subjects, but does not include school districts.
(Source: Illinois Constitution.)

It may be wise to assume that the 1970 constitution is considering only, 1.) Pre-1870 incorporated cities, villages and towns; 2.) Pre-1870 incorporated cities, villages and towns, as well as post 1872 incorporated Cities and Villages established under the Cities and Villages Act.

So, the 1870 Illinois Constitution forbade the use of special charters for the use of incorporating cities and villages. In order to incorporate prior to 1870, special legislation was needed. The legislature enacted the Cities and Villages Act which made the rules of incorporation general in nature and not special. This is not necessarily a bad thing. I question how to reconcile those chartered municipalities, such as Collinsville, that existed prior to 1872 as incorporated villages; operating on a charter set forth by the legislature, now abandoned and now consolidated into the general municipal definition of the State Statutes. I have no problem with local governance. However, corporations operate under special law, and not necessarily under constitutional law. Even though the legislative act for creating such a creature exist within the purview of the legislature, such creatures in-and-of themselves are not exercising constitutional authority in as much as they are administrative rules limited to special subjects.

It is well settled that the construction or creation of a municipal corporation is essentially a

legislative act. The powers of government and the method of their exercise can be spawned only

from the state legislature pursuant to existing regulations and limitations imposed on the General

Assembly in the Constitution. See Alarm Detection Systems, Inc. v. Village of Hinsdale, 326

Ill.App.3d 372, 761 N.E.2d 782, 260 Ill.Dec. 599 (2d Dist. 2001); Queenwood East Sheltered

Care Home, Ltd. v. Village of Morton, 94 Ill.App.3d 51, 418 N.E.2d 472, 474 ‚”œ 475, 49 Ill.Dec.

618 (1981); and Two Hundred Nine Lake Shore Drive Building Corp. v. City of Chicago, 3

Ill.App.3d 46, 278 N.E.2d 216, 219 (1st Dist. 1971), all citing Father Basil’s Lodge, Inc. v. City

of Chicago, 393 Ill. 246, 65 N.E.2d 805, 810 (1946). See also City of Chicago v. Santor, 30

Ill.App.3d 792, 334 N.E.2d 176 (1st Dist. 1975); People ex rel. Curren v. Wood, 391 Ill. 237, 62

N.E.2d 809 (1945). As a result, the general regulations concerning the methods and procedures of

incorporation as well as the necessary preexisting conditions are all contained in the Illinois

Municipal Code of 1961, which is the existing refinement of the Cities and Villages Act of 1872,

as amended and modified to date.

In that the organization of municipalities has always been the sole responsibility of the

General Assembly, there are some older statements of the judiciary that still govern today. In

1874, the Illinois Supreme Court stated: ‚“Whether cities, towns or villages should be incorporated

. . . presents no question of law or fact for judicial determination. It is purely a question of policy,

to be determined by the legislative department.‚ City of Galesburg v. Hawkinson, 75 Ill. 152, 157

(1874). See also Eisele v. Morton Park District, 122 Ill.App.2d 226, 258 N.E.2d 127 (3d Dist.

1970).

The Illinois statutes, like those in many other states, require certain minimums and conditions

precedent, which include regulations to prevent a multiplicity of municipalities ‚” both cities and

villages. The following sections discuss first the requirements for the selection of a name, which

apply to both cities and villages, and then considerations unique to incorporating each type of

entity.

B. Selection of Name

1. [1.7] Registration of Name

Before any other action may be taken on any given petition to incorporate territory as a city

or village, the name proposed for the city or village must be filed with the Secretary of State. The

mechanics involved in this filing are similar to those involved in securing a reservation of name

when incorporating a private corporation. The difference, however, lies in the fact that the

language contained in the Illinois Municipal Code is such that the securing of the Secretary of

State’s certificate (indicating that the proposed name for the city or village has not been adopted

for use by any other municipality) is jurisdictional. Code ‚§2-1-7 indicates that no action on any

petition for incorporation may be taken until the Secretary of State has issued such a certificate,

commonly referred to as a ‚“certificate of availability.‚

2. [1.8] Taking Name

Illinois, like most states, provides that cities and villages must be named ‚“City of

____________‚ or ‚“Village of ____________.‚ Illinois Municipal Code ‚§‚§2-2-12, 2-3-8.

Historically, however, if a municipality happens to call itself ‚“the Town of ____________,‚ it has

been held that such designation did not invalidate the incorporation of the city or village. People

ex rel. Mohlenbrock v. Pike, 197 Ill. 449, 64 N.E. 393, 394 (1902). This concept of striving to

uphold the acts of any municipality whenever the question of name arises has also been adopted

by the state legislature with respect to the question of procedure of changing names of cities and

villages (Code ‚§2-4-8).

In the field of municipal law, it is common for enabling legislation to recite that the courts

shall take judicial notice of the existence of the names of cities and villages. While Illinois law

does not specify that judicial notice shall be taken of the original name, it does recite that ‚“[a]ll

courts shall take judicial notice of the existence of all cities and villages incorporated under this

Code‚ (Code ‚§2-1-1) and that ‚“[t]he courts shall take judicial notice of [a] change of name‚

(Code ‚§2-4-6). Therefore, the practical effect is that Illinois law is very closely aligned in this

area with the general theory of municipal law throughout our nation.

C. [1.9] Incorporation of Cities

The four sections of the Illinois Municipal Code dealing with the incorporation of cities (‚§‚§2-

2-5 through 2-2-8) have been thoroughly discussed and reviewed in In re City of Prospect

Heights, 8 Ill.App.3d 780, 291 N.E.2d 336 (1st Dist. 1972). In that case, the court held that the

first three sections must be read as a whole to ascertain their true meaning. While both ‚§‚§2-2-6

and 2-2-7 have been amended (very likely as a result of the Prospect Heights decision), the

meaning, intent, and interpretation of those sections are reasonably clear, so the procedure

described in the following sections may be accurately described as the procedure to be followed

in the incorporation of cities.

In a subsequent case involving the same city, the court further elaborated on the question of

contiguous territory and again upheld the incorporation of the city notwithstanding the somewhatgerrymandered

boundaries involved in that incorporation. In re Incorporation of City of Prospect

Heights, 79 Ill.App.3d 378, 398 N.E.2d 378, 34 Ill.Dec. 703 (1st Dist. 1979).

Note that Code ‚§‚§2-2-7 and 2-2-8 have since been amended to conform to the statutory

consolidation of elections, Supreme Court Rules, etc.

1. [1.10] Area

In regions containing fewer than 7,500 residents, an area may be incorporated if (a) the area

is a contiguous territory; (b) the area does not exceed four square miles; (c) the entire area is not

included within the corporate limits of any other municipality; (d) the area contains at least 2,500

persons, 2,000 of whom live in ‚“immobile dwellings‚; and (e) consent to the incorporation has

been received from any existing municipality that has a boundary line within one and one-half

miles of the boundary line of the proposed municipality. If the area contains 7,500 or more

residents, the consent of a neighboring municipality within one and one-half miles is not

necessary or prerequisite to the petition. Illinois Municipal Code ‚§‚§2-2-5, 2-2-6.

However, if the area of contiguous territory (a) is in a county containing at least one million

inhabitants, (b) does not exceed four square miles, (c) is not already included within the corporate

limits of any municipality, (d) has residing within it all the registered voters of a township who

are not already included within the corporate limits of any municipality, and (e) is wholly

bounded by a single municipality, it need contain only more than 1,200 residents to incorporate.

Code ‚§2-2-5.

Note that Code ‚§2-2-1.1 defines ‚“immobile dwelling‚ as ‚“any dwelling place except a tent,

camp trailer, house car or house trailer whether or not such tent, camp trailer, house car or house

trailer is placed on a foundation or otherwise permanently affixed to the realty.‚

2. [1.11] Petition

Provided the area requirements listed in ‚§1.10 above can be met, any 200 electors residing in

that area may file a petition for incorporation addressed to the circuit court. The petition, which

must be filed with the clerk of the county in which the area is located, must set forth (a) a general

but definite description of the lands intended to be incorporated within the proposed city (for all

practical purposes this description should be identical to the description contained on the accurate

map that will have to be utilized and filed later in the proceedings); (b) the number of inhabitants

residing in the territory to be incorporated; (c) the name of the proposed city; (d) if the area

contains less than 7,500 residents, a statement that no part of the territory lies within one and onehalf

miles of the boundary line of any existing municipality that has not given its prior consent to

the incorporation; and (e) a request that the question of incorporation be submitted to the electors

residing within the limits of the proposed city. Illinois Municipal Code ‚§2-2-6.

3. [1.12] Notice of Hearing

Within five days after the petition is filed, the court must enter an order fixing the time and

date for hearing on the petition not more than 35 days nor less than 25 days after the filing of the

petition. When the hearing date and time have been fixed by order of the court, the petitioners

must give notice of the hearing on the petition in the usual manner. See ‚§1.4 above. The notice

must be specific and must be published in accord with the following portion of Illinois Municipal

Code ‚§2-2-6:

This notice shall state that a petition for incorporation has been filed and give the

substance thereof including a description of the territory to be incorporated, the

number of persons residing within the territory, and the date fixed for hearing. This

notice shall be given by publication thereof at least once in one or more newspapers

published in the proposed city or, if no newspaper is published therein, then in one

or more newspapers with a general circulation within the proposed city.

4. [1.13] Hearing

Any person who owns real estate or resides within the territory proposed for incorporation as

a city may be heard in objection to the petition for incorporation by filing the objection after the

petition has been filed but no less than five days before the day set for hearing on the petition.

The objection must be on one or more of eight grounds, which are listed in Illinois Municipal

Code ‚§2-2-7:

(1) that the territory described in the petition is not contiguous territory, (2) that the

territory or some portion thereof is already included within another municipality,

(3) that the territory has residing therein fewer than 7,500 residents and some

portion of the territory lies within 1‚½ miles of the boundary line of an existing

municipality which has not consented to the incorporation, (4) that the territory

exceeds 4 square miles, (5) that the petition is not signed by the requisite number of

electors [200], (6) that the requisite number of persons [2,500, of whom 2,000 reside

in immobile dwellings] do not reside within the territory described in the petition, (7)

that the description of the territory contained in the petition is inaccurate or

inadequate, or (8) that the incorporation adversely affects an existing municipality,

within 1‚½ miles of the boundaries of the territory described in the petition, with

respect to its ability to perform and render necessary governmental services.

Since the only persons usually objecting on the basis of item 8 above are municipalities, the

statute provides that this objection can be overcome by modification of the boundaries of the

territory described in the petition without dismissing the petition. With the other seven objections,

the burden is on the petitioner to prove the allegation of the petition or suffer the dismissal of the

entire petition.

5. [1.14] Referendum

If the court finds that the allegations in the petition have been sustained, it must render an

order designating at which election the question of incorporation will be submitted. Illinois

Municipal Code ‚§2-2-7. The statute specifies the form of the ballot and indicates that the results

of the election are to be entered on the records of the court. Code ‚§2-2-8.

6. [1.15] Election of Officers

If the majority of those voting cast votes in favor of incorporation, the court enters an order

(which for the purposes of appeal is considered a final order) causing the court clerk to perform

the same duties relating to elections as required of the municipal and/or county clerk by the

Election Code, 10 ILCS 5/1-1, et seq. Illinois Municipal Code ‚§2-2-10.

As an aside, the first city officers hold their offices for the terms provided in the Code and

until their respective successors are elected and qualified at the next general municipal election.

Code ‚§2-2-11.

D. Incorporation of Villages

1. [1.16] Area

Unlike the procedure for incorporating a city, the procedures for incorporating a village differ

depending on the population of the county in which the unincorporated area is located and of the

area to be incorporated, whether the area is a village in fact, or whether it has long been

incorporated as a town. In counties of less than 150,000 population based on the last preceding

federal census, any area may be incorporated provided (a) the area is a contiguous territory, (b)

the area does not exceed two square miles in overall size, (c) the area or any part thereof has not

already been included within the corporate limits of any municipality, (d) there are residing

within the area at least 200 persons living in dwellings other than those designed to be mobile,

and (e) the area is owned by at least 30 different owners. Illinois Municipal Code ‚§2-3-5. In

addition, if the area contains fewer than 7,500 residents and lies within one and one-half miles of

the boundary line of any existing municipality, the consent of the existing municipality must be

obtained before any further steps to incorporate may be taken. Code ‚§2-3-5 also regulates the

forms of the petition for incorporation as well as the number of electors who may file it. In re

Incorporation of Village to be Known as Village of Mitchell, 316 Ill.App.3d 284, 743 N.E.2d 571,

252 Ill.Dec. 703 (5th Dist. 2000); Kelley v. Village of Willowbrook, 38 Ill.App.2d 112, 186

N.E.2d 369 (2d Dist. 1962) (abst.). For a discussion of ‚“contiguity,‚ see In re Proposed

Incorporation of Village of Volo, 229 Ill.App.3d 321, 592 N.E.2d 628, 170 Ill.Dec. 192 (2d Dist.

1992).

In counties of 150,000 or more residents as determined by the last federal census, any area

may be incorporated if the area (a) is a contiguous territory, (b) is at least four square miles in

overall size, and (c) contains at least 2,500 inhabitants residing in permanent dwellings. Code ‚§2-

3-5a(a). However, if the county has less than 1,000,001 population and has adopted an official

plan and a suitable resolution, the county board must first determine that (a) the proposed

incorporation is compatible with the plan for the development of the county and (b) the territory

described in the petition constitutes a sufficient tax base to ensure the ability of the village to

provide all necessary municipal services to its inhabitants. Code ‚§2-3-18. See also In re Village of

Forest Knoll, 148 Ill.App.3d 436, 499 N.E.2d 129, 101 Ill.Dec. 762 (2d Dist. 1986). It is worth

noting that if the area to be incorporated contains fewer than 7,500 residents and lies within one

and one-half miles of any existing municipality, the consent of the existing municipality must be

obtained, as in the incorporation of a village in a county of less than 150,000 population. Code

‚§2-3-5a(a). See also Town of Godfrey v. City of Alton, 33 Ill.App.3d 978, 338 N.E.2d 890 (5th

Dist. 1975).

In counties with more than 240,000 but fewer than 400,000 residents based on the last

preceding federal census, an area may be incorporated if the area (a) is a contiguous territory, (b)

is at least three square miles in overall size, and (c) contains at least 5,000 inhabitants residing in

permanent dwellings. No consent of neighboring municipalities is required. Code ‚§2-3-5a(b).

In counties with more than 316,000 but fewer than 318,000 residents based on the last

preceding federal census, an area may be incorporated if it (a) is a contiguous territory, (b) does

not exceed one square mile, (c) contains between 1,000 and 1,500 inhabitants residing in

permanent dwellings, and (d) is located within ten miles of a county having a population of less

than 150,000. No consent of neighboring municipalities is required. Code ‚§2-3-5a(c).

In a county with more than 400,000 but fewer than 410,000 residents based on the last

preceding federal census, an area as well as an additional area adjacent thereto and also within the

same township not exceeding four square miles may be incorporated as a village in the same

manner as provided in Code ‚§2-3-5a(a), if the total area (a) is contiguous territory, (b) does not

exceed one square mile, (c) contains at least 400 inhabitants residing in permanent dwellings, and

(d) is located in a township adjacent to a county of less than 150,000 inhabitants as determined by

the last preceding federal census. Neither the consent of a municipality nor the finding of the

county board under ‚§2-3-18, if otherwise applicable, need be obtained. Code ‚§2-3-5a(d).

Once the area of the proposed village has been laid out to meet the requirements stated above,

the remaining steps are procedural, involving the filing of a petition, a hearing thereon, an

election, a canvass of votes, and a first election of officers. In the organizing of any municipality,

once the court has determined whether there has been compliance with the statutory requirements,

there is no other issue for any court to determine. In re Incorporation of Village of Capitol

Heights, 41 Ill.2d 256, 242 N.E.2d 247 (1968); People ex rel. County of DuPage v. Lowe, 36

Ill.2d 372, 224 N.E.2d 1 (1967).

2. [1.17] Petition

If the area sought to be incorporated lies in a county of less than 150,000 population, 35

electors may file the petition (addressed to the circuit court) with the circuit clerk of the county.

Illinois Municipal Code ‚§2-3-5. If the area lies in a county of 150,000 or more, the petition must

be filed by 250 electors residing within the area to be incorporated. Code ‚§2-3-5a(a). In either

case, the petition must contain

a. a legal description of the area intended to be included in the proposed village;

b. the number of residents in that area;

c. the name of the proposed village; and

d. a prayer that the question of the incorporation of the area as a village be submitted to the

electors residing within the limits of the proposed village. Code ‚§‚§2-2-5, 2-3-5a(a).

If the area contains fewer than 7,500 residents and lies within one and one-half miles of the

limits of any existing municipality, the consent of that municipality must be obtained before the

area may be incorporated. Code ‚§2-3-5a(a).

While the statute requires only ‚“a definite description of the lands intended to be embraced in

the proposed village‚ when the area lies in a county of less than 150,000 population, it is

advisable to use a legal description contained on an accurate map drawn and drafted by a certified

land surveyor in any such filing in order to avoid any problems. Such a map of the land and

territory eventually will be needed in any event and should be attached to the petition as an added

precaution. See People ex rel. Cameron v. New, 214 Ill. 287, 73 N.E. 362 (1905). A legal

description is required in a county of 150,000 or more. Code ‚§2-3-5a(a)(1).

3. [1.18] Hearing

Unlike the procedure for incorporating a city, when the petition has been filed, the court is

required to hear testimony and rule whether the area sought for incorporation is a village in fact.

Illinois Municipal Code ‚§2-3-6. The courts have described a village as any assemblage in the

county of houses or dwellings, businesses, or both, whether or not situated on laid-out streets.

They have even gone as far as to suggest that the issue will be resolved by a ruling on whether the

area is in fact one that may be incorporated as a village as having met the area requirements.

People ex rel. County of DuPage v. Lowe, 36 Ill.2d 372, 224 N.E.2d 1 (1967). If the court rules

that the area does not meet the statutory requirements and is not a village in fact, the petition is

denied, and no subsequent petition may be filed within one year after the ruling is entered. If, on

the other hand, the court finds that the area is a village, the court enters an order finding that the

area constitutes a village in fact and the proposition is certified and submitted to the electors of

the area in the manner provided by the Election Code. Municipal Code ‚§2-3-6.

4. [1.19] Referendum

The form of the ballot must be substantially as set forth in Illinois Municipal Code ‚§2-3-6.

The election returns are made to and canvassing thereof done by the court. If the majority of the

votes cast are in favor of incorporation as a village, the area is incorporated as a village under the

Code, and the court orders the first election of officers. Code ‚§‚§2-3-6, 2-3-7.

5. [1.20] Election of Officers

The order calling for the first election of officers must also fix the time and place thereof and

set forth all other acts with reference to the election as though it were a first election of officers of

a newly incorporated city. See ‚§1.15 above. Once elected, the terms of the new officers cease

after their successors have been elected and qualified at the next regular election. Illinois

Municipal Code ‚§2-3-7.

III. REORGANIZATION OF MUNICIPALITIES

A. [1.21] Change of Incorporated Town to Village

An ‚“incorporated town‚ has been defined as a unit of local government organized under

special charter granted by the legislature before the adoption of the 1870 Constitution. Committee

of Local Improvements of Town of Algonquin v. Objectors to Assessment, 39 Ill.2d 255, 234

N.E.2d 778 (1968).

1. [1.22] Petition

In the event a town incorporated before the adoption of the 1870 Constitution desires to

change its entity to that of a village operating under the current Illinois Municipal Code, the

procedure to accomplish the change is relatively simple. All that is required is that 30 electors

residing within the incorporated town present the corporate authorities of the town with a petition

to the effect that the question of whether the town should become a village shall be submitted to

the electors within the town. The town board (corporate authorities) then certifies the question,

which shall then be submitted for an election on the matter that shall be conducted in the manner

prescribed by the Election Code. Municipal Code ‚§2-3-1.

2. [1.23] Referendum

The form of ballot must substantially adhere to the form contained in Illinois Municipal Code

‚§2-3-2. Upon submission of the question to the voters, the corporate authorities must cause a

statement of the election results to be transcribed on the records of the town. Code ‚§2-3-3. If a

majority of the votes are cast in favor of village government, the town is automatically

incorporated as a village under the general law. The existing town officers continue in office as

‚“like officers of the village‚ until their successors are appointed or elected under Code ‚§2-3-4.

B. [1.24] Change of Charter Cities, Towns, and Villages to Municipalities Under General Law

The Illinois Municipal Code has taken into consideration the fact that citizens may become

uneasy with living in a city or a village and may resolve to change the form of incorporation of

their particular municipality.

1. [1.25] Petition in Charter City

Whenever one eighth of the electors voting at the last preceding city election in a special

charter city incorporated before 1870 petition the city council to submit the question of whether

the city shall incorporate under the modern Illinois Municipal Code, the municipal clerk must

certify the question for submission to a vote of the electors of the city at an election to be held in

accordance with the Election Code. Municipal Code ‚§2-2-1.

2. [1.26] Petition in Charter Town or Village

In any incorporated town or village having a population of at least 2,500 persons, including at

least 2,000 persons living in immobile dwellings, one eighth of the electors may petition the

president and board of trustees of the village to incorporate as a city, and then the reorganization

procedure will be identical to that for a special charter city. Illinois Municipal Code ‚§2-2-4.

Unlike charter cities, however, a proposition reorganizing a given town or village as a city under

the Code may not be presented to the electorate more than once in four years. Id.

3. [1.27] Notice and Referendum

The mayor of a special charter city, incorporated town, or village shall publish a notice of

election in the usual manner. The form of ballots used at this election shall be substantially in the

form set forth in Illinois Municipal Code ‚§2-2-3, and the question contained thereon shall be as

follows: ‚“Shall the [City] [Town] [Village] of ______________ be incorporated as a city under

the general law?‚ The election judges shall make their returns to the corporate authorities, who

shall canvass the returns and cause the results of the canvass to be entered on the records of the

city, incorporated town, or village. If the majority of the votes cast favor incorporation as a city

under the general law contained in the Code, the city, incorporated town, or village, as the case

may be, is automatically incorporated as a city under the Code.

4. [1.28] Officers

If a special charter city votes to incorporate under the Illinois Municipal Code, its officers

remain in office until their successors are elected and have qualified. Code ‚§2-2-3. However, if an

incorporated town or village votes to change its form of government to that of a city under the

Code, the change of form does not take effect until the city officers are elected and have qualified

at the next regularly scheduled election for officers. Code ‚§‚§2-2-4, 2-2-9. The election must be

conducted in accordance with the Election Code, and the former officers of the town or village

must cause the result to be entered on the records of the new city. Municipal Code ‚§2-2-9. The

city officers elected at the initial election serve until their successors are elected and have

qualified following the next general municipal election. Code ‚§2-2-11.

C. Change of City to Village

1. [1.29] Petition and Referendum

The Illinois Municipal Code also deals with the change of any city to a village, stating that

upon the filing of a petition by one fourth of the electors of the city, the city clerk shall certify in

the manner provided in the Election Code the question for submission to the electors of whether

the city shall incorporate as a village. Municipal Code ‚§2-3-9. Only one such referendum may be

held in any ten-month period. The question must be substantially in the form set out in Code ‚§2-

3-9.

If a majority of votes cast at the election are in favor of the reorganization, then the city

automatically becomes a village under general law contained in the Code, retaining its name with

the word ‚“Village‚ being substituted for the word ‚“City.‚

2. [1.30] Election of Officers

If the electors vote to reorganize, the officers of the former city hold their offices until the

next general municipal election at which village officers are elected and until their successors

have qualified. Illinois Municipal Code ‚§2-3-9.

D. [1.31] Change of Portion of Any Village or Incorporated Town to Village

The Illinois Municipal Code also provides procedures for incorporation of part of a village or

part of an incorporated town as a village.

1. [1.32] Area

The area involved as part of a village or incorporated town must (a) lie on the border of the

village or incorporated town adjacent to the new village to be incorporated and (b) have at least

500 inhabitants ‚“living in immobile dwellings other than those designed to be mobile.‚ In

addition, the original village or incorporated town must be left with at least four square miles of

territory and at least 500 inhabitants living in immobile dwellings. Illinois Municipal Code ‚§2-3-

10.

NOTE: The definition of ‚“immobile dwelling‚ for use in connection with incorporation of a

village found at Code ‚§2-3-1.1 differs from the one for use in connection with incorporation of a

city. See ‚§1.10 above; Code ‚§2-2-1.1. Unlike the latter, the definition used for the incorporation

of a village specifies that house trailers placed on permanent foundations and assessed as realty

are deemed to be ‚“immobile dwellings.‚

2. [1.33] Petition

If the area requirements can be satisfied, then a petition must be presented to the circuit court

for the county in which the village or incorporated town is located asking that the question of

incorporating a part of that village or incorporated town into a new village under the Illinois

Municipal Code be submitted to the electors of the existing village or incorporated town. The

petition must be signed by at least 50 electors, but in the event that more than 500 votes were cast

by electors residing in the described territory at the last preceding election, the petition must be

signed by electors residing in the described territory equal to one tenth of the number of votes

cast in that territory at the last preceding general or municipal election. In addition, the petition

must set forth ‚“(1) a definite description of the lands intended to be embraced in the proposed

village, (2) the number of inhabitants residing therein, and (3) the name of the proposed village.‚

Code ‚§2-3-10.

3. [1.34] Referendum

Upon the presentation of a valid petition for incorporation of a part of a village or

incorporated town, the court must consider the petition and enter appropriate orders for

certification and submission to the electors of the existing village or town. Illinois Municipal

Code ‚§2-3-11. The question of incorporating the territory described in the petition may be

submitted at any regular election. Id.

Two or more petitions to separate part of the same town or incorporated village may be

submitted for action by vote at the same election, provided, however, that in the event any two

petitions embrace part of the same territory to be separated, the first such petition presented must

be the only one submitted to a vote. Code ‚§2-3-12. Section 2-3-12 sets forth further provisions for

the procedures of bringing these petitions to the public for vote until one petition is carried or

until all petitions are voted down. Furthermore, if territory affected by an election regarding the

incorporation of part of a village or incorporated town is within the jurisdiction of the board of

election commissioners, then the election is to be conducted by that board rather than by the

corporate authorities of the village or incorporated town. Code ‚§2-3-13. If a majority of the

electors in the village or incorporated town, as well as a majority of the electors residing in the

territory proposed to be incorporated as a new village, vote in favor of the incorporation, the

territory is automatically a new village with the name specified in the petition. Code ‚§2-3-15. No

other election on the same question concerning the same territory may be held until ten months

have elapsed. Code ‚§2-3-14; In re Petition of Village of Hickory Park, 10 Ill.App.2d 146, 134

N.E.2d 542 (2d Dist. 1956).

4. [1.35] New Officers

Upon the creation of the new village, the new officers are elected in the same way as the first

officers in a newly incorporated village. See ‚§1.20 above. Until the election and qualification of

those officers, the officers of the original village or incorporated town have jurisdiction and

control of the new village. However, upon the election and qualification of the officers of the new

village, the terms of those officers of the old or original village or incorporated town who

continue to reside in the new village or incorporated town end. Illinois Municipal Code ‚§2-3-16.

E. [1.36] Change of Name

Although the mere change of corporate name does not come close to effecting a

reorganization or change of incorporation (Catlett v. People, 151 Ill. 16, 37 N.E. 855 (1894)), the

subject is properly discussed here since a change of name when a city becomes a village or vice

versa is mentioned in ‚§‚§1.27, 1.29, and 1.34 above. Furthermore, without the present enabling

legislation to provide the procedure recited in ‚§‚§1.37 ‚”œ 1.42 below, and before the 1870 Illinois

Constitution, it is doubtful that a change of name could have been accomplished without formal

reorganization, which might even have involved dissolution and later reincorporation.

1. [1.37] Petition

A municipality, like a private corporation or any natural person, can have several names by

which it is known but only one legal name as its corporate designation. If the citizenry desires to

change the name of a city or village, at least one half of the electors who voted for the officers of

the city or village at the last election can commence proceedings by signing a petition requesting

that the name of the city or village be changed and presenting it to the corporate authorities of the

municipality. Illinois Municipal Code ‚§2-4-1.

2. [1.38] Certificate of Secretary of State

Following presentation of the petition described in ‚§1.37 above, the corporate authorities of

that city or village must file the proposed name with the Secretary of State. If, after the proposed

name has remained on file with the Secretary of State for 60 days, it appears from information in

that office that the proposed name has not been adopted by any other municipality, the Secretary

of State shall grant a certificate (commonly referred to as a ‚“certificate of availability‚) so

indicating. Illinois Municipal Code ‚§2-4-2. The information concerning the names of the

municipalities in the state should be readily available to the Secretary of State because the

Secretary is duty bound to keep a file of all of the names, arranged in alphabetical order. Code ‚§2-

4-3. As a result, if the proposed name happens to be a name of another city or village in Illinois,

the petitioners will be informed of this fact by the Secretary, and thereafter the petitioners may

file another proposed name.

3. [1.39] Hearing on Petition

Only after the Secretary of State has issued the certificate of availability may the board of

trustees or city council fix the time when the petition is to be considered at a public hearing.

Notice of this hearing must be published at least once not more than 30 nor less than 15 days

before the hearing in one or more newspapers published in the municipality or, if no newspaper is

published in the municipality, then in one or more newspapers with a general circulation in the

municipality. In municipalities with less than 500 population in which no newspaper is published,

publication may be made by posting a notice in three prominent places within the municipality.

Whether the notice is published in a newspaper or by posting, the notice must state that a name

change has been requested, the time when the action on the petition will be taken, and that

objections, if any, will be heard at that time. Illinois Municipal Code ‚§‚§2-4-4, 2-4-5.

4. [1.40] Filing of Ordinance

If the city council or village board of trustees determines that a name change is desirable,

‚“they shall make an order changing the name and adopting the name requested in the petition.‚

Illinois Municipal Code ‚§2-4-5. The corporate authorities then must file a copy of the order

making the change with the Secretary of State, who must publish notice of the name change in the

same manner set out in ‚§1.39 above for publication of the notice of the hearing on the petition.

Code ‚§2-4-6. At this time, courts take judicial notice of the name change. Id.

While the statute is silent as to whether the ‚“order‚ must be in the form of an ordinance or a

resolution, it is better practice to advise the corporate authorities to pass an ordinance since the

term ‚“order‚ is used. Under classical definitions and long-standing decisions in the courts,

resolutions or motions are not deemed to be laws and, hence, would not truly be ‚“orders.‚ For

further discussion of this topic, see John J. Zimmermann, Whether Resolutions or Motions Are

Law, 10 Mun. Att’y 43 (1969).

5. [1.41] De Facto Change of Name

Under Illinois Municipal Code ‚§‚§2-4-7 and 2-4-8, whenever the name of a municipality has

been changed under the procedure set forth in ‚§‚§1.37 ‚”œ 1.40 above, all of the proceedings, rights,

duties, and privileges shall be affected whether they are those of the municipality or those of third

parties dealing with the municipality. In fact, even if there has been no compliance with the

statutory procedure, the name of the municipality is changed, and all matters commencing under

the name as changed ‚“shall be valid if they would have been valid if done under the old name.‚

Code ‚§2-4-8; People ex rel. Mohlenbrock v. Pike, 197 Ill. 449, 64 N.E. 393 (1902).

6. [1.42] Unincorporated Villages and Towns

The Illinois Municipal Code also recites a short procedure for changing the name of an

unincorporated town or village. In that instance, when a majority of electors residing in the

unincorporated town or village petition the circuit court of the county, the court may change the

name of that town or village provided that, first, a plat of the town or village has been filed with

the recorder and, second, the petitioners have complied with the provisions of Code ‚§2-4-2

regarding the filing of the proposed name with the Secretary of State and the obtaining of a

certificate of availability. Code ‚§2-4-9.

IV. [1.43] OPERATIONAL FORMS OF GOVERNMENT

The law concerning municipal corporations allows for various and sundry forms of

government. Villages and cities may elect trustees and aldermen at large or from districts or

wards. Village and city government may operate through the use of trustees and aldermen as

commissioners (see ‚§‚§1.62 ‚”œ 1.72), through a strong mayor (see ‚§‚§1.73 ‚”œ 1.79), or through a

manager or administrator (see ‚§‚§1.53 ‚”œ 1.61). Finally, with the advent of home rule under the

1970 Illinois Constitution, villages and cities may vary the statutory forms prescribed in the

Illinois Municipal Code and handle their own ‚“government and affairs,‚ tailoring their own

systems of government to suit their needs by way of voter-approval through referenda. Flowers v.

City of Moline, 251 Ill.App.3d 348, 622 N.E.2d 38, 190 Ill.Dec. 628 (3d Dist. 1993); Perkins v.

City of Chicago Heights, 47 F.3d 212, 214 ‚”œ 215 (7th Cir. 1995).

1. [1.44] Special Charter

A few remaining cities and villages were founded before the effective date of the 1872 Cities

and Villages Act pursuant to authority contained in the 1870 Constitution. As indicated in ‚§1.6

above, the only method of incorporation of cities, villages, and towns in those days was through a

special charter or special law passed by the General Assembly. From earliest times, in English

common law, a charter was a grant of rights and privileges from the Crown to any person or other

legal entity. In more modern times, the charter granting these rights and franchises is usually

given to a corporation by the sovereign power of the state legislature. BLACK’S LAW

DICTIONARY, p. 250 (8th ed. 2004). A charter differs from a constitution in that the former is

granted by the sovereign, while the latter is established by the people themselves. State

legislatures have power not granted the federal government under the United States Constitution

yet remain bound by their respective state constitutions.

2. [1.45] 1870 Constitution

Until Article IV of the 1870 Illinois Constitution came into being, the only method available

for creation of a municipality was to pass special legislation. Article IV, ‚§22, of that Constitution

forbade the General Assembly to ‚“pass local or special laws‚ in certain ‚“enumerated cases,‚

including ‚“[i]ncorporating cities, towns or villages, or changing or amending the charter of any

town, city or village.‚ Clearly, the Constitutional Convention, in writing and formulating the

1870 Constitution, recognized that a general law could be made applicable to the incorporation of

all cities and villages, thereby paving the way for the enactment of the ‚“Cities and Villages Act of

1872.‚ In passing this law, Illinois followed the lead of many of its sister states in providing a

general charter for all cities and villages incorporated thereunder.

3. [1.46] General Charter

In order for the more modern general law noted in ‚§1.45 above to succeed as a substitute for

the special charter, it was essential to provide regulations to act as guidelines for cities and

villages so that they would not overstep the bounds of their authority. To accomplish this end, it

was necessary to set down in the law the purposes for which municipalities are generally created

and to identify those purposes by and through grants of power that would otherwise appear in the

special charters of old.

a. [1.47] Delegation of Authority

Cities and villages are created to care for the general health, safety, welfare, and morals of

their citizenry. However, if a municipality desires to legislate in order to meet these objectives,

specific authority under the Illinois Municipal Code is indispensable; the municipality cannot act

under its police power alone. The police power must be coupled with a less general and more

specific power granted by the state legislature. City of Des Plaines v. Gacs, 65 Ill.App.3d 44, 382

N.E.2d 402, 22 Ill.Dec. 82 (1st Dist. 1978); Rocking H. Stables, Inc. v. Village of Norridge, 106

Ill.App.2d 179, 245 N.E.2d 601 (1st Dist. 1969); Good Humor Corp. v. Village of Mundelein, 33

Ill.2d 252, 211 N.E.2d 269 (1965); Schuringa v. City of Chicago, 30 Ill.2d 504, 198 N.E.2d 326

(1964); Father Basil’s Lodge, Inc. v. City of Chicago, 393 Ill. 246, 65 N.E.2d 805 (1946). For

example, as of this writing, most Illinois municipalities (necessarily excluding home rule units,

which have greater power) have the power to license dogs but have no such authority to license

cats. Code ‚§11-20-9. In Greater Chicago Combine & Center, Inc. v. City of Chicago, No. 04 C

5429, 2004 U.S.Dist. LEXIS 25706 (N.D.Ill. Dec. 16, 2004), the plaintiff challenged Chicago’s

home rule ordinance prohibiting importing, selling, owning, keeping, or otherwise possessing any

live pigeon. The U.S. district court found that the Illinois statute on the subject disposed of the

plaintiff’s claim because the General Assembly had authorized cities to enact such ordinances.

510 ILCS 45/7. As a result, any attempt to legislate in an area in which there has been no

delegation of authority becomes a futile, useless act labeled ‚“arbitrary and unreasonable.‚ This

concept, which has become known as ‚“Dillon’s Rule‚ due to its enunciation in 1 John F. Dillon,

COMMENTARIES ON THE LAW OF MUNICIPAL CORPORATIONS ‚§237 (5th ed. 1911),

requires that (aside from any outright constitutional grant of authority to local governmental

units) any statutory language delegating state authority be construed strictly. Specifically, when

statutes granting powers to municipal corporations are concerned, any fair and reasonable doubt

of the existence of a power has always been resolved against the municipality. LaSalle National

Bank v. Village of Brookfield, 95 Ill.App.3d 765, 420 N.E.2d 819, 51 Ill.Dec. 405 (1st Dist.

1981); Redmond v. Novak, 86 Ill.2d 374, 427 N.E.2d 53, 55 Ill.Dec. 933 (1981); Chicago School

Transit, Inc. v. City of Chicago, 35 Ill.2d 82, 219 N.E.2d 522 (1966); Houston v. Village of

Maywood, 11 Ill.App.2d 433, 138 N.E.2d 37 (1st Dist. 1956); Annot., 104 A.L.R. 1335 (1936). In

some instances, the state has refused to grant certain powers to municipal corporations; e.g., only

the state can make violations of law other than federal law a felony. Illinois Municipal Code ‚§1-

2-1. In other instances, the control of the populace might be shared with local governmental

authorities; e.g., the state legislature has made it a crime for motorists to violate speed restrictions

but has allowed individual municipalities the right to set those speed restrictions within their

corporate limits. 625 ILCS 5/11-604; Code ‚§11-40-1. In still other instances, the state may allow

for a complete duplication of regulations rather than a mere sharing in the control and power; e.g.,

some businesses can be made to procure local business licenses in addition to the necessary state

license providing the local authorities desire to enact the proper ordinances. Code ‚§11-42-1, et

seq. Finally, the legislature may grant complete and total authority to local government for the

regulation and control of matters that the state could not feasibly and would not desire to

legislate; e.g., zoning matters presently are left to the sole control of political subdivisions within

the state. Code ‚§11-13-1, et seq.

b. [1.48] Proper Exercise of Power

Dillon’s Rule (see ‚§1.47 above) demands that some form of statutory enabling legislation

delegating authority to legislate in a given situation must exist along with the general authority

under the police power to preserve the health, safety, morals, and general welfare of the citizenry.

Regulations finally passed and approved by other than home rule authorities must take the form

required by the state legislature in that situation. It has long been a general rule of law that when

the legislature grants a municipality the power to do any act and further prescribes the manner in

which the power shall be exercised, the power must be exercised in that manner and not

otherwise. Maywood-Proviso State Bank v. City of Oakbrook Terrace, 67 Ill.App.2d 280, 214

N.E.2d 582 (2d Dist. 1966); Union National Bank v. Village of Glenwood, 38 Ill.App.3d 469, 348

N.E.2d 226 (1st Dist. 1976); Illinois Municipal Retirement Fund v. City of Barry, 52 Ill.App.3d

644, 367 N.E.2d 1048, 10 Ill.Dec. 439 (4th Dist. 1977); Chicago Union Traction Co. v. City of

Chicago, 207 Ill. 544, 69 N.E. 849 (1904); People ex rel. Conlon v. Mount, 186 Ill. 560, 58 N.E.

360 (1900). It is also a rule in the general law that notwithstanding the existence or nonexistence

of specific and additional requirements within the enabling legislation itself, any and all

ordinances passed by the local authorities must begin with the ordaining clause specified

separately under Illinois Municipal Code ‚§1-2-2:

The ordaining clause of ordinances in cities shall be: ‚“Be it ordained, by the City

Council of ____________.‚

The ordaining clause of ordinances in villages shall be: ‚“Be it ordained by the

President and Board of Trustees of the Village of ____________.‚

Unless the charter of an incorporated town otherwise provides, the ordaining

clause of ordinances in incorporated towns shall conform as nearly as possible to

one of the forms specified in this section.

In Bullis v. City of Chicago, 235 Ill. 472, 85 N.E. 614 (1908), there was a question as to the

validity of the action of the city council purporting to increase the number of police officers on

the police force. That action was shown by the following excerpt from the proceedings of the city

council:

‚“Ald. Cullerton presented the following order: ‚Ordered that the superintendent of

police be, and he is hereby, authorized to increase the number of police officers on

the police force by filling vacancies wherever they exist and are necessary, the total

number of officers on the force, however, after such increase is made, not to exceed

the number authorized to be appointed under the appropriation budget of 1901.’

Which was, on motion, duly passed by yeas and nays, as follows:‚ ‚” followed by the

names of 66 aldermen voting yea and 1 voting nay. 85 N.E. at 616 ‚”œ 617.

The appellee introduced in evidence, over the appellant’s objection, the appropriation

ordinance for the year 1901 showing the appropriation of $2.5 million for 2,500 police officers at

$1,000 each, also, the appropriation ordinances for the years 1903, 1904, 1905, and 1906,

showing appropriations in those years for, respectively, 2,380, 2,306, 2,278, and 2,196 police

officers. The court said:

It was error to admit this evidence. The statute requires the action of the city

council in providing for the election or appointment of officers, other than those

mentioned in the statute, to be by ordinance. It cannot act by mere resolution. The

order of the council of January 5, 1903, was only a resolution. It was not an

ordinance and did not purport to be one. It was not styled in accordance with

section 2 . . . which requires the style of ordinances to be: ‚“Be it ordained by the city

council of. . . .‚ It purported to increase the number of police officers, but, if any

number of police officers had been theretofore authorized to be appointed, it must

have been done by ordinance, and that ordinance could not be amended or modified

by a resolution of the council. 85 N.E. at 617.

As noted above, the statute requiring an ‚“ordaining clause‚ is the law, and this case has been

followed as controlling in City of Chicago v. Marsh, 250 Ill. 512, 95 N.E. 473 (1911), and in City

of Springfield v. Postal Telegraph-Cable Co., 253 Ill. 346, 97 N.E. 672 (1912). The case has also

been upheld numerous times. See, e.g., Naumovich v. Howarth, 92 Ill.App.2d 134, 234 N.E.2d

185 (4th Dist. 1968); Western Pride Builders, Inc. v. Koraska, 91 Ill.App.2d 458, 235 N.E.2d 313

(1st Dist. 1968); McCarty v. City of Rockford, 96 Ill.App.3d 531, 421 N.E.2d 576, 51 Ill.Dec. 941

(2d Dist. 1981).

4. [1.49] Recapitulation ‚” Dillon’s Rule

The expression, explanation, and example of Dillon’s Rule in ‚§‚§1.47 and 1.48 above are

meant to underscore and to emphasize further the importance of today’s general law as a

substitute for yesterday’s special charters. It must be remembered that any municipal corporation

achieves all of its powers from the charter under which it acts as a body politic and corporate. The

charter contains the fundamental or organic municipal powers and may even prescribe the form of

municipal organization. Again, before 1870, this charter was specially created, passed, and given

to each city, town, or village. Today, the charter is contained in the general law ‚” the Illinois

Municipal Code and other statutory provisions together with the 1970 Illinois Constitution and

court decisions interpreting those documents.

B. [1.50] Aldermanic and Trustee Forms

With the evolution of the general law as we know it today in the Illinois Municipal Code, the

question of what must go into the charter has been replaced with the question of which of the

forms available under the Code will be adopted and undertaken. The first bridge to cross is

whether the new municipality will use an aldermanic or a trustee form. Without reference to the

contrary, if it is a city, it will use the aldermanic form of government; if it is a village, it will use

the trustee form.

1. [1.51] Differences Between Cities and Villages

The differences between cities and villages have been virtually eliminated. In a city, the

mayor is the chief executive officer, as is the mayor or president of a village. The functions and

duties of the executive in each of the forms are identical. Illinois Municipal Code ‚§3.1-35-5. The

most salient difference remaining is that in a village the number of trustees is always six elected

at large (Code ‚§3.1-25-5), while in a city the number of aldermen may vary from six to twenty

elected from wards, depending on the city’s population (Code ‚§3.1-20-10), except as may

otherwise be provided by modification to allow trustees to be elected from districts and aldermen

to be elected at large. See ‚§‚§1.52 and 1.56 below. Even this difference may not be as great as it

appears since the number of aldermen in a city may be reduced by one half by referendum. Code

‚§3.1-20-20. (As an aside, ‚§3.1-20-20 also allows for the reinstatement of the full number of

aldermen by referendum.)

The term of office of the mayor, president, aldermen, and trustees in cities and villages is four

years, but each municipality of less than 500,000 population may adopt a two-year term for these

elected officials. Code ‚§3.1-10-65.

The powers and duties of the trustees as individuals are identical to the functions and duties

of aldermen. Code ‚§3.1-45-15. Likewise, the board of trustees has the same powers and duties as

a city council. Code ‚§3.1-45-5.

The mayor or president with the advice and consent of the city council or board of trustees

may appoint (a) a treasurer, if the treasurer is not an elected position in the municipality; (b) a

collector; (c) a comptroller; (d) a marshal; (e) an attorney or corporation counsel; (f) one or more

purchasing agents or deputies; (g) the auxiliary policemen determined necessary by the corporate

authorities; (h) police matrons; (i) a commissioner of public works; (j) a budget director or budget

officer; and (k) other officers necessary to carry into effect the powers conferred on

municipalities. Code ‚§3.1-30-5, et seq.

2. [1.52] Representation at Large vs. Representation by Wards or Districts

In effect, the real issue in the incorporation of cities and villages is never whether to be a city

or to be a village but rather whether to have aldermen or trustees initially elected at large or from

wards and districts. Hence, the political issue of running aldermen and trustees at large or from

districts determines whether a new municipality will be a city or a village because upon

incorporation, cities automatically are divided into wards, each being represented by two

aldermen. Illinois Municipal Code ‚§‚§3.1-20-15 through 3.1-20-25. On the other hand,

immediately upon incorporation of a village, trustees are elected at large. Code ‚§3.1-25-20. While

villages of 5,000 or more population may later wish to elect trustees from districts, this change of

form may be accomplished only by referendum. Code ‚§‚§3.1-25-75, 3.1-25-80.

Before discussing the other forms, it should be noted that cities and villages can function very

well without adopting one of the more sophisticated of the various governmental forms available

‚” commission form, managerial form, strong mayor form, or other form allowed by the Illinois

Constitution.

C. [1.53] Managerial Form

Cities and villages may find it convenient to relieve the mayor or president of some or all of

the administrative duties, which may be accomplished through the passage of ordinances

adopting the administrative ‚“form‚ of operation or the managerial form of government. The

former relieves the executive from many of the more menial tasks by allowing the appointment of

what is effectively an administrative assistant. Discussed in ‚§1.61 below, this ‚“form‚ has no

foundation in the statutes but arises from the general power of a municipality to hire officers and

employees.

The managerial form represents the total elimination of ministerial responsibilities from the

office of mayor or president. The council is the policy-making body, and the manager, then,

becomes the chief administrative officer. THE MUNICIPAL YEAR BOOK, p. 4 (44th ed. 1977);

56 AM.JUR.2d Municipal Corporations ‚§186 (1971). Municipalities adopting this form may

merely adopt an ordinance similar to that called for in Illinois Municipal Code ‚§5-3-10 or may

call for a referendum and conduct an election on the proposition. If the proposal to adopt this

managerial form is voted on by referendum and carries, then mere passage of an ordinance will

be insufficient to abandon the form for any other.

In theory, while adoption of this form by referendum creates security for the office of

manager, there are knowledgeable colleagues who believe that any such form of government or

government operation that is not adopted by referendum is no more than an administrative form

and that the managerial form can be adopted only by referendum. Such discussions have led at

least one court to recite:

When a ‚“manager‚ form of government is used, it is relevant and pertinent to know

whether reference is made to a managerial form of government adopted by

referendum (Ill.Rev.Stat.1973, ch. 24, par. 5-1-4) [Code ‚§5-1-4] or whether it is a

nonreferendum type, also generally referred to as a ‚“manager‚ or ‚“administrator‚

operation. The latter type of operation is adopted by means of an ordinance.

Regardless of which method is used to establish a ‚“manager‚ form of operation, the

purpose common to both forms is to provide a single person with full administrative

authority to carry out the executive or ministerial functions of government.

[Emphasis added.] Gagne v. Village of LaGrange, 36 Ill.App.3d 864, 345 N.E.2d 108,

112 (1st Dist. 1976).

The appendix to this chapter includes sample ordinances adopting the managerial form by

referendum (see ‚§1.93) and adopting the managerial form through ordinance (see ‚§1.94).

1. [1.54] Petition or Ordinance Calling for Election

To accomplish adoption of the managerial form by referendum, any city or village of fewer

than 500,000 people must elect to operate under the managerial form of government. Illinois

Municipal Code ‚§5-1-1. This election may be held pursuant to an ordinance passed by the

corporate authorities or pursuant to court order. Code ‚§5-1-4. Under the latter method, before the

circuit court may enter such an order, it must be petitioned by a number of resident electors equal

to at least one tenth of the number of votes cast for mayor at the last preceding mayoral election.

The court then sets a date for a hearing on the sufficiency of the petition (a form for this petition

is contained in Code ‚§5-1-6), which hearing must take place not less than 10 nor more than 30

days after the petition has been filed. Code ‚§5-1-5.

2. [1.55] Referendum

Assuming the petition is sufficient, the court will order the proposition of adopting the

managerial form of government to be submitted to an election. Illinois Municipal Code ‚§5-1-5.

The proposition must be substantially in the form set out in Code ‚§5-1-8. Certified copies of the

canvass of the votes made by the proper election officials must be transmitted to the municipal

clerk and the clerk of the court, both of whom must transcribe the copy on their records. Code ‚§5-

1-9.

If a majority of the electors voting vote ‚“yes,‚ the mayor or president must immediately

proclaim that Article 5 of the Illinois Municipal Code is in force (though the operation of the

managerial form is not deemed to commence until a manager is appointed) (Code ‚§5-1-8) and

transmit a certificate of adoption of the managerial form to the Secretary of State, the county

recorder, and the clerk of the court for filing in each of their respective offices (Code ‚§5-1-10). If

a majority of the electors vote ‚“no,‚ the question may not be submitted again for 22 months. Code

‚§5-1-8.

3. [1.56] Representation

Upon adopting the managerial form of government, the city or village can elect

simultaneously to retain wards or districts. Illinois Municipal Code ‚§‚§5-1-4, 5-2-1. If it does not,

the municipality thereafter elects council members or trustees at large rather than from wards or

districts. In this case, the number of aldermen and their terms of office are controlled by the

remainder of Division 2 of Article 5 of the Code. It should be noted, however, that included in

Division 2 are specific statutory procedures that (a) restrict the number of aldermen or trustees;

(b) stagger terms; (c) govern redistricting, changing from representatives at large to

representatives from wards or districts and vice versa, or instituting selection in part at large and

in part from wards or districts; and (d) provide specific forms for ballots to be used in each of the

foregoing types of election.

4. [1.57] Chief Administrative Officer

The great diversity of forms for electing aldermen or trustees under the managerial form of

government noted in ‚§1.56 above flows from the fact that a single person appointed as manager

has almost total responsibility for carrying into effect and implementing the policies articulated

by the city council or village board. The manager’s duties, powers, obligations, and other

responsibilities are fully set forth in Illinois Municipal Code ‚§5-3-7, most of which is reproduced

below:

The council or board of trustees, as the case may be, shall appoint a municipal

manager, who shall be the administrative head of the municipal government and

who shall be responsible for the efficient administration of all departments. He shall

be appointed without regard to his political beliefs and need not be a resident of the

city or village when appointed. The manager shall be appointed for an indefinite

term, and the conditions of the manager’s employment may be set forth in an

agreement. In the case of the absence or disability of the manager, the council or

village board may designate a qualified administrative officer of the municipality to

perform the duties of the manager during such absence or disability. The manager

may at any time be removed from office by a majority vote of the members of the

council or the board.

The powers and duties of the manager shall be:

(1) To enforce the laws and ordinances within the municipality;

(2) To appoint and remove all directors of departments. No appointment shall

be made upon any basis other than that of merit and fitness . . . ;

(3) To exercise control of all departments and divisions thereof created in this

Article 5, or that may be created by the council or board of trustees;

(4) If the city or village was subject to the aldermanic form provisions of Article

3 at the time of adoption of this Article 5 to appoint and remove all officers who are

not required to be elected by Article 3;

(5) To have all the powers and exercise all the duties granted elsewhere in this

Code to municipal clerks and comptrollers with respect to the preparation of a

report of estimated funds necessary to defray the expenses of the city or village for

the fiscal year for the consideration of the corporate authorities prior to the

preparation of the annual appropriation ordinance;

(6) To attend all meetings of the council or board of trustees with the right to

take part in the discussions, but with no right to vote;

(7) To recommend to the council or board of trustees for adoption such

measures as he may deem necessary or expedient;

(8) To perform such other duties as may be prescribed by this Article 5 or may

be required of him by ordinance or resolution of the board of trustees or council.

Under the manager form, however, the mayor or president does appoint all members of

boards and commissions not established in Article 3 or Article 4 of the Code in the manner there

provided and also appoints the membership of the board of local improvements with the consent

of the council or board. Code ‚§‚§5-3-1, 5-3-11.

5. [1.58] Passage of Ordinance Pursuant to Referendum

To assure the proper implementation of the managerial form of government after the election

to adopt it, the law provides that the corporate authorities at their first meeting must pass an

ordinance that (a) amplifies the powers and duties of the manager in conformity with Article 5,

(b) defines the scope of each department and of each division thereunder, (c) defines and

prescribes the powers and duties of appointive officers and employees, (d) fixes the salaries of all

appointive officers and employees, and (e) provides for independent audits of all accounts of the

city or village conducted independently of the manager by some person selected by the council or

the village board. In addition, the council or board may in that ordinance (a) assign appointive

officers and employees to one or more of the departments, (b) require an appointive officer or

employee to perform duties in two or more departments, and (c) make such rules and regulations

as may be necessary or proper for the efficient and economical conduct of the business of the city

or village. Illinois Municipal Code ‚§5-3-10.

6. [1.59] Practical Effect of Form

In practice, the managerial form of government is far different from any other form presently

known in municipal government. It represents a firm and often very proper cleavage between

municipal officials who are elected and those who are appointed or who are employees. It offers

an opportunity for many small municipalities to effect efficient government when there are no

persons among the citizenry who would otherwise have the time or the expertise to take on both

the policy-making legislative functions of elected office while sitting as mayor, president,

alderman, or trustee and the administrative functions of appointed officers involved with the dayto-

day running of the various departments. When the form is properly carried out, no alderman or

trustee communicates with any appointed personnel except through the city or village manager.

The alderman’s or trustee’s role as an elected official is to legislate and set the municipal policy

as a member of the council or board, not to get involved personally with the actual

implementation of that law and policy; that function is the manager’s. The manager is, by law, to

be present at all meetings of the council or board, to take part in the discussions of that body with

no right to vote, and to make recommendations to those corporate authorities as the manager sees

fit. Illinois Municipal Code ‚§5-3-7.

7. [1.60] Abandonment of Form

A city or village that has operated under the managerial form for at least four years after the

first manager is appointed may abandon the managerial form. In such case, a petition to abandon

must be signed by electors equal in number to at least ten percent of the votes cast for mayor at

the last preceding quadrennial municipal election and be filed with the circuit court. The court

shall set a date not less than ten nor more than thirty days thereafter for a hearing on the

sufficiency of the petition, and notice thereof must be given the clerk or the mayor at least seven

days prior to the hearing. If the court finds the petition is sufficient, it shall order that the

proposition be submitted to the voters of the municipality at an election other than a primary

election. The clerk of the court shall certify the proposition to the election authorities in the

following form: ‚“Shall (name of city or village) retain the managerial form of municipal

government?‚ Illinois Municipal Code ‚§5-5-1(a).

If a majority of the electors voting vote ‚“yes,‚ the proposition to abandon is rejected; if a

majority of the electors voting vote ‚“no,‚ the proposition is approved. Code ‚§5-5-1(b). If

approved, the abandonment shall not affect the rights or liabilities of the city or village, and the

elected officials in office at the time of the abandonment shall continue in office until the

expiration of their respective terms. However, the municipality shall become subject to the form

contained in Article 3.1 or Article 4 of the Code, whichever was in force in the municipality at the

time it adopted the managerial form. Following approval of abandonment, the next succeeding

election and qualification of officers shall be those prescribed in the Article 3.1 or Article 4 form.

Code ‚§5-5-1(c). If they are elected from wards or districts, the officers to be elected shall be

elected from the same wards or districts as existed immediately before the abandonment. Code

‚§5-5-1(d).

On the other hand, if the officers to be elected were elected at large but prior to the adoption

of the managerial form were elected from wards or districts, then after approval of abandonment

the first group of aldermen, trustees, or commissioners (as the case may be) shall be of the same

number and run from the same wards or districts as provided for at the time of the adoption of the

managerial form. However, if during the time the managerial form was in existence the district or

ward boundaries changed, after abandonment the corporate authorities shall alter the boundaries

so as to conform as nearly as possible to the former division of the corporate area of the

municipality in existence immediately before the adoption of Article 5 and the next general

municipal election for officers shall be held at the time specified in ‚§3.1-10-75 or ‚§3.1-25-15. In

the event the terms of the aldermen or trustees operating under Article 3 were staggered prior to

adoption of the managerial form, they shall choose by lot which of them shall serve initial twoyear

terms as in the case of a first election after incorporation as provided by ‚§3.1-20-35 or ‚§3.1-

15-5, as the case may be. Code ‚§5-5-1(e). No proposition to abandon the managerial form can be

submitted to the voters more often than once in 46 months. Code ‚§5-5-1(f).

Accordingly, upon abandonment, the city or village normally reverts to the form of

government it used immediately before adoption of the managerial form. Nevertheless, even this

may be changed. Under the provisions of Code ‚§‚§5-5-5 and 5-5-6, upon abandonment, the

commission or strong mayor forms may be adopted, or the abandoning municipality may revert to

the aldermanic or trustee form.

D. [1.61] Administrator Form

Sometimes cities or villages adopt a managerial form of government by ordinance only and

erroneously refer to what is actually a manager (albeit without the security of manager-byreferendum

discussed above) as an ‚“administrator.‚ Actually, an administrator is no more than

the right arm of the mayor or president. There may be many names used instead of ‚“city

administrator‚ or ‚“village administrator,‚ including ‚“chief administrator,‚ ‚“managing director,‚

‚“executive director,‚ ‚“executive assistant,‚ ‚“business administrator,‚ or ‚“chief administrative

officer.‚ Whatever the title used, however, in most cases the administrator is only the mayor’s or

president’s appointed aide, with no authority other than what the mayor or president may confer

to implement ideas, techniques, and/or methods of conducting the day-to-day affairs of the

municipality.

While the administrator has no voice at council or board meetings and cannot directly affect

the policy-making decisions of that body the way a manager can, the administrator does,

nevertheless, offer the city or village the same expertise as a manager by bringing professional

management into municipal administration. As in the managerial form, the elected mayor or

president is freed to focus on policy-making. The mayor or president remains the chief

administrative officer as well as the chief executive officer. Furthermore, depending on local

ordinances, customs, and usage, the mayor or president may have sole authority and say in

appointing the administrator, or the appointment may require the advice and consent of the

council or board. Also, the mayor or president may be empowered to remove the administrator or

may need the approval of the council or board. All or some of the duties of the administrator may

be assigned by the mayor or president, or they may be determined entirely by the council or

board. The mayor or president usually appoints all department heads, but sometimes this

responsibility is left to the administrator.

Basically, it is the administrator’s job to render administrative counsel and advice to the

mayor or president, coordinate the various departments and personnel, recommend the hiring and

firing of employees, prepare the municipal budget (often under the mayor’s or president’s direct

supervision) for its presentation by the mayor or president to the council or board, administer the

budget after its approval, represent the mayor or president and/or the city or village at various

affairs and functions, and generally accomplish such other duties as the mayor or president may

from time to time assign. THE MUNICIPAL YEAR BOOK, p. 3 (40th ed. 1973).

E. [1.62] Commission Form

Any municipality of less than 200,000 population may elect by referendum to operate under

the commission form of government. Illinois Municipal Code ‚§4-2-1.

1. [1.63] Petition and Hearing

Before a referendum may be held, the circuit court of the county must be petitioned by a

number of electors from the city or village equal to one tenth of the number of votes cast for all

candidates for mayor or president at the last municipal election for that office. The court must

then conduct a hearing on a date not more than thirty nor less than ten days after the petition has

been filed. Notice of filing and of the date of hearing must be given to the mayor or president and

to the municipal clerk at least seven days before the hearing. Illinois Municipal Code ‚§4-2-2.

2. [1.64] Notice

If the petition to hold a referendum is found sufficient based on the law and the form

contained in Illinois Municipal Code ‚§4-2-3, the court will enter an order certifying the

proposition for submission to the electorate in accord with the Election Code. Notice of this

referendum concerning whether the municipality will adopt the commission form of government

is to be given in the same fashion as provided for general municipal elections. Code ‚§4-2-2.

3. [1.65] Referendum

The canvass of the election is to be made by the proper officers of the election, who are to

forward a certified copy of the results to the municipal clerk and to the clerk of the court, who in

turn enter the results on their records. Illinois Municipal Code ‚§4-2-6. If a majority votes against

adopting the commission form of government, no referendum can be held again on the matter for

a period of 22 months, but if a majority votes in favor of the proposition, the commission form of

government goes into effect on the date of the next general municipal election. Code ‚§4-2-5.

Immediately after that election, the mayor or president must send a certificate stating that the

municipality has adopted the commission form to the Secretary of State, the county recorder, and

the clerk of the circuit court, each of whom files the certificate in the respective office. Code ‚§4-

2-7.

4. [1.66] First Officers and Meetings

At the next following April of an odd-numbered year (being the next general municipal

election), the municipalities adopting the commission form of government shall elect a mayor and

four commissioners following the expiration of the term of office of the mayor or president (a)

holding office when the change of form is adopted, (b) elected when the change of form is made,

or (c) elected at the next biennial election held after the adoption of the form. Illinois Municipal

Code ‚§4-3-2. The municipality also shall discontinue its wards or districts since the entire council

(the mayor and four commissioners) must run at large. Id. The terms of office, conduct of primary

and general elections, petitions and statements of candidacy, registration and qualifications of

voters, and forms of ballots are controlled by Code ‚§‚§4-3-4 through 4-3-18 and as provided for in

the Election Code.

The conduct and time of council meetings, regular and special, are regulated by Municipal

Code ‚§4-5-12. Under this section, the mayor and four commissioners each have the right to vote

on all questions coming before the council. While the mayor has no veto power, each ordinance,

resolution, or warrant passed or ordered by the council must be signed by the mayor or any two

commissioners, and all ordinances and resolutions also must be filed for record before they are

considered to be in force. Id.

5. Specific Officers

a. [1.67] Petition and Referendum

A separate referendum or separate ballot at the initial election for mayor and commissioners

may be held upon petition to require candidates for commissioner to run for a specific office.

Illinois Municipal Code ‚§4-3-19. The petition need contain signatures equal to only ten percent of

the number of electors voting for mayor at the last preceding mayoral election. The proposition

must be substantially in the form set out in Code ‚§4-3-19. If the majority of those voting vote in

favor of the proposition, thereafter candidates run for specific offices, i.e., commissioner of

accounts and finances, commissioner of public health and safety, commissioner of streets and

public improvements (who, per Code ‚§4-5-3, serves ex-officio as commissioner of public works),

and commissioner of public property. Code ‚§4-3-19. The mayor is commissioner of public

affairs. The commissioner of each department is superintendent of that department. Code ‚§4-5-3.

b. [1.68] Principal Officers

Pursuant to Illinois Municipal Code ‚§4-5-1, ‚“[t]he mayor shall be the president of the council

and preside at its meetings, and he shall supervise all departments and report to the council for its

action all matters requiring attention in any department. The commissioner of accounts and

finances shall be vice president of the council, and in case of a vacancy in the office of mayor or

the absence or inability of the mayor, shall perform the duties of the mayor.‚

c. [1.69] Departments and Personnel

To carry out the executive and administrative powers and duties distributed among the five

departments mentioned in ‚§1.67 above, the council by ordinance must determine the parameters

of authority of each department, officer, and employee and by ordinance must make additional

rules to carry out the business of the municipality in the most efficient and economical manner.

Illinois Municipal Code ‚§4-5-2.

Normally, which commissioner is responsible for each department is determined by majority

vote at the very first meeting of the new council unless, of course, this has already been

accomplished by adoption of the requirement that commissioners run for specific office. Code ‚§4-

5-3. In any event, by majority vote and with slight variation depending on local law, the council

usually appoints a municipal clerk, corporation counsel, city attorney, assistant city attorney, city

treasurer, library trustees, commissioner of streets and public improvements, superintendent of

streets, superintendent of special assessments, superintendent of sewers, city engineer, and any

other necessary additional officers. Code ‚§4-5-4(a). In addition, in those cities over 50,000

population that have adopted the Civil Service Act, the police department is part of the

department of public affairs and the offices of corporate counsel, city attorney, assistant city

attorney, and all other members of the legal department are assigned to that department and

appointed by the mayor. Code ‚§4-5-4(b).

Unless it is provided by ordinance that the superintendent or commissioner of each

department has the power, the council has the right to hire and fire the heads of all departments

that are subordinate to or within the five principal departments. Code ‚§‚§4-5-5, 4-5-9. Without

question, all other officers and employees (exclusive of those under the Civil Service Act or Fire

and Police Commissioners Act) are subject to appointment and discharge by the commissioner of

their department. Code ‚§‚§4-5-6, 4-5-7.

6. [1.70] Practical Disadvantages

The hiring and firing provisions noted in ‚§1.69 above seem to be the biggest drawbacks of the

commission form of government in that they tend to foster a patronage system. The concern of

the author regarding patronage is underscored by specific penalty provisions contained in Illinois

Municipal Code ‚§‚§4-8-2 through 4-8-7. Penalties are provided for bribery, promises of

appointment, illegal campaign contributions, and conflicts of interest and are obviously intended

to dissuade unethical and immoral activity engendered by the power in the law as presently in

force.

An additional drawback to the commission form of government involves an alternate method

of causing the construction of any public improvements. As is usual for most municipalities,

whatever the form, contracts for public improvements or maintenance of public property over

$10,000 must be based on specifications approved by the council, any work or other public

improvement exceeding $20,000 that is not to be paid for in whole or in part by special

assessment or special taxation must be let to the lowest responsible bidder unless four of five

commissioners vote to award the contract without advertising for bids, in which case the proper

officers can enter into the contract. Code ‚§4-5-11(1). However, an alternate method provides that

if authorized by a vote of four of the five council members, the commissioner of public works or

other proper officer designated by ordinance shall superintend and cause to be carried out the

construction of the public improvements and shall employ exclusively for the performance of all

manual labor thereon laborers and artisans whom the municipality shall pay by the day or hour.

All material of the value of $20,000 or more used in the construction of that work or

improvement shall be purchased by contract let to the lowest responsible bidder in the manner

prescribed by ordinance. Code ‚§4-5-11(2).

The commission form of government is also criticized for developing special interests of the

commissioners as opposed to general concern for the welfare of the community because each

legislator is interested only in the department he or she supervises.

7. [1.71] Advantages

Extraordinary control over certain public utilities seems to be one of the reasons the

commission form of government came into existence. See Illinois Municipal Code ‚§‚§4-5-10, 4-9-

3. Another obvious advantage of the commission form flows from the fact that the commissioners

are the superintendents of departments. This cuts administrative costs and can be a boon to the

taxpayers of smaller communities in which part-time commissioners accomplish much of the

routine paperwork, especially as additional full-time administrative staff would otherwise be

unwarranted and extravagant.

8. [1.72] Abandonment

After the municipality has operated under the commission form of government for at least

two years, the question of abandonment may be considered. Illinois Municipal Code ‚§4-10-1. The

proceedings necessary to abandon the commission form are commenced by filing with the

municipal clerk a petition containing the proposition signed by a number of electors equal to 25

percent of the number of votes cast for mayor at the last preceding general municipal mayoral

election. The municipal clerk then certifies the proposition to the proper election authorities for

submission to the electors of the municipality. If the court finds the petition sufficient, it orders

the proposition to be submitted to the electorate at the next regular municipal election. Id.

Note that in cities and villages with fewer than 50,000 citizens, the issue can be submitted

only within the year preceding the expiration of the terms of office of the elective officers and

cannot be submitted more than once in that year. In municipalities of 50,000 or more, the

question of abandonment cannot be submitted more than once in 22 months. Id. Although the

statute indicates that if the majority vote in favor of abandonment the city or village reverts to a

city or village under the general law contained in Article 3 of the Code, there is no reason to

believe that another proposition to adopt the managerial form or the strong mayor form, presented

on a separate ballot, could not also be voted on in the same election in which the issue of

abandonment is submitted to the voters. This procedure has, in fact, been followed in many

managerial-form cities and villages that were previously under the commission form. See also

Code ‚§‚§5-5-5, 5-5-6.

F. [1.73] Strong Mayor Form of Government

When the Cities and Villages Act was amended and revised in 1941, most of the law

regulating municipalities was placed into ten articles. It seems that the authors of the Act wished

to revise the existing laws simply by recodifying them and, as a result, limited the amount of

substantive revision. The drafters of the 1961 version of the Illinois Municipal Code apparently

had the same problem.

Initially, Article 6 of the Illinois Municipal Code was to have been a recodification of the law

concerning the City of Chicago, but for reasons not germane to this discussion the law was left

outside the Code. As a result, the Municipal Code of 1961 contained only ten articles even though

the last article was Article 11. George M. Platt, The Illinois Municipal Code, 65 ILCS (S.H.A.) 5.

In 1969, however, the General Assembly did pass a law, P.A. 76-746, adding an Article 6 to the

Code. That article is known as ‚“The Strong Mayor Form of Municipal Government.‚ Code ‚§6-1-

1. This form of government is available to any municipality that (1) does not have less than 5,000

nor more than 500,000 population (Code ‚§6-2-1) and (2) is not an incorporated town that has

superseded a civil township (Code ‚§6-1-3).

1. [1.74] Petition

The procedure for adoption of the strong mayor form of government is similar to that for

adoption of the managerial and commission forms of government in that a petition must first be

submitted and an election held on the issue of whether the municipality should adopt the strong

mayor form of government. Electors equal to one tenth of the number of votes cast for all

candidates for mayor or president at the last preceding municipal election must petition the circuit

court in the county in which the municipality is located in order for the proposition to be

submitted to a vote. Illinois Municipal Code ‚§6-2-2.

2. [1.75] Hearing

Once the court receives a petition to adopt the strong mayor form of government, it must set a

date not less than ten days nor more than thirty days after filing of the petition for a hearing on its

sufficiency and must give notice of the hearing in writing to the city or village clerk and to the

mayor or village president at least seven days before the date of the hearing. Illinois Municipal

Code ‚§6-2-2. If the court finds the petition sufficient, it orders the proposition to be submitted to

the electorate at the next regular municipal election, and the clerk of the court certifies the

proposition to the proper election authorities for submission to the electors of the municipality in

accord with the Election Code. Id. The form of the petition and the form of the proposition are

contained in Municipal Code ‚§‚§6-2-3 and 6-2-5 respectively.

3. [1.76] Result of Referendum

Following the election to adopt the strong mayor form of government, a canvass of the votes

on the proposition is transmitted to the village or city clerk and to the county clerk, both of whom

transcribe the canvass on their records. Illinois Municipal Code ‚§6-2-6. In the event the strong

mayor form is adopted by the electors, the mayor or village president must immediately transmit

a certificate to that effect to the Secretary of State, the county clerk, and the county recorder, all

of whom must file or record this certificate in their offices. Code ‚§6-2-7.

4. [1.77] Powers of Mayor

The concept of the strong mayor form of government is to emphasize the role of the mayor

and to give the mayor certain additional powers and duties over and above those of a mayor or

president in a city or village operating under a different form. It should be noted, however, that if

any other article of the Illinois Municipal Code or any other regulation provides for appointments

to boards, commissions, or other agencies by the mayor and the corporate authorities, when the

village board or city council actually creates such boards and commissions, the appointments to

those agencies must be made in the manner so provided and, hence, not necessarily by the mayor.

Code ‚§6-4-1.

The mayor’s powers under this form include

a. enforcing laws within the municipality;

b. appointing and removing administrative assistants, the budget and finance director, the

heads of all other departments, and all other officers of the municipality, commissions,

boards, and other agencies, except those covered by the Civil Service Act in

municipalities that have adopted it as provided in Code ‚§6-4-14, but ‚“[n]o appointment

shall be made upon any basis other than that of merit and fitness and in compliance with

provisions of [the Code] and with qualifications established by the city council or

village‚;

c. controlling all departments and divisions of the municipality created by the council;

d. recommending to the council the adoption of such measures as the mayor deems

necessary or expedient; and

e. performing such other duties as may be prescribed by Article 6 of the Code or may be

required by ordinance. Code ‚§6-4-7.

In addition, the mayor can approve or disapprove ordinances passed by the council. If the

mayor approves the ordinance, the mayor signs it. If the mayor disapproves the ordinance, he or

she returns it to the council with written objections at the next regular meeting of the council not

less than five days after its passage. If the mayor fails to return the ordinance in the manner set

forth, it becomes effective despite the absence of a signature. Code ‚§6-4-2.

5. [1.78] Representation by Wards or Districts

When the strong mayor form of government has been adopted by referendum as discussed in

‚§1.76 above, the corporate authorities must divide the municipality into wards no later than 30

days before the first day on which candidate petitions may be filed for the primary election at

which the first municipal officers are to be nominated for office. Illinois Municipal Code ‚§6-3-1.

As a result, the terms of office of the elected officials holding office at the time of the issuance of

the mayor’s certificate that the strong mayor form of government has been adopted terminate

upon the election of the officers of the new form of government unless the existing municipality

was a city divided into an equal number of wards as the city under the new strong mayor form, in

which case the aldermen holding office continue to serve until the expiration of the terms for

which they were elected. Code ‚§6-3-2. The voters in the city under the new form elect a mayor, a

clerk, and a municipal treasurer at large and from 8 to 20 aldermen from wards. Code ‚§6-3-3.

Two aldermen are elected to represent each ward, and the number of aldermen is determined by

population according to a schedule set out in ‚§6-3-3. Division into wards, redistricting of the city,

resignation of an alderman or other officer and other vacancies in office, and qualifications for

city office are covered in Code ‚§‚§6-3-4 through 6-3-9.

6. [1.79] Passage of Ordinance Pursuant to Referendum

At the first meeting of the council after Article 6 and the strong mayor form of government

become effective in any city or village, pursuant to the terms of Illinois Municipal Code ‚§6-4-10,

the council must pass a general ordinance

(1) amplifying the powers and duties of the mayor in conformity with this Article 6,

(2) defining the scope of each department and of each division thereunder, (3)

defining and prescribing the qualifications, powers and duties of appointive officers

and employees, (4) fixing the salaries of all appointive officers and employees, (5)

providing for independent audits of all accounts of the city or village, which audits

shall be conducted independently of the mayor by some person selected by the

council, (6) repealing all city ordinances in conflict with the provisions of this

statute. Full reports of such audits shall be filed with the public records of the city

or village. The power with respect to such audits shall not be construed to limit the

responsibility of the mayor for the proper expenditure of city or village funds.

Note carefully that the statute continuously uses the words ‚“city,‚ ‚“wards,‚ ‚“council,‚ and

‚“aldermen‚ when it is fairly obvious from the outset that the form of government is available to

villages also. Code ‚§1-1-2(8). As a result, one must keep in mind while reading the statute that if

the subject municipality is a village, the term ‚“trustee‚ should be substituted for ‚“alderman‚ and

the term ‚“district‚ should be substituted for ‚“ward.‚ The Code, then, would be applicable to

trustees as well as aldermen in this particular instance. Code ‚§6-1-2.

G. [1.80] Constitutional Form

Since 1970, cities and villages have been given the added advantage of tailoring the form of

government under which they wish to operate to the specific needs and requirements of the

community. The 1970 Constitution provides that counties and municipalities other than home rule

units have the powers ‚“by referendum, to adopt, alter or repeal their forms of government

provided by law.‚ ILL.CONST. art. VII, ‚§7. Home rule units are also given similar power

‚“subject to approval by referendum to adopt, alter or repeal a form of government provided by

law.‚ ILL.CONST. art. VII, ‚§6(f). This section further states, ‚“A home rule municipality shall

have the power to provide for its officers, their manner of selection and terms of office only as

approved by referendum or as otherwise authorized by law.‚

It appears, then, that any existing city or village can, by suitable election, amend its current

form. For example, a city could increase the number of aldermen per ward to three, or a village

could increase the number of trustees from six to eight or ten or even to authorize trustees to run

from more than six districts ‚” thereby accomplishing whatever advantage there may be for that

particular community without the necessity of changing from a village to a city.

In Clarke v. Village of Arlington Heights, 57 Ill.2d 50, 309 N.E.2d 576 (1974), the

Village of Arlington Heights, a home rule municipality in northwest Cook County, after a

referendum on the issues, adopted an ordinance changing the office of village clerk from an

elected position to an appointed position and increased the number of trustees from six to

eight. One resident, John Clarke, filed suit to challenge the village’s authority to change to a

form of government not provided in the Illinois Municipal Code. In addition, he argued that

the general law required the village clerk to be elected. In deciding the issues and in allowing

the referendum and subsequent ordinance to stand, the court quoted Kanellos v. County of

Cook, 53 Ill.2d 161, 290 N.E.2d 240, 243 (1972).

The concept of home rule adopted under the provisions of the 1970 constitution

was designed to drastically alter the relationship which previously existed between

local and State government. Formerly, the actions of local governmental units were

limited to those powers which were expressly authorized, implied or essential in

carrying out the legislature’s grant of authority. Under the home-rule provisions of

the 1970 constitution, however, the power of the General Assembly to limit the

actions of home-rule units has been circumscribed and home-rule units have been

constitutionally delegated greater autonomy in the determination of their

government and affairs. To accomplish this independence the constitution conferred

substantial powers upon home-rule units subject only to those restrictions imposed

or authorized therein. 309 N.E.2d at 578.

The court in Clarke further stated:

We find that the Village of Arlington Heights may effect these structural revisions of

its government pursuant to its constitutional authority explicitly set forth in section

6(f), which empowers it to provide for its municipal officers, the manner of their

selection and term of office. (See generally Parkhurst, Two Years Later: The Status of

Home Rule in Illinois, University of Illinois Bulletin, Vol. 71, No. 52, pp. 26 ‚”œ 27

(1973).) This action take[s] precedence over the present legislative provisions of the

Municipal Code limiting the number of Village trustees to six (par. 3-5-2) and

requiring the election of a Village clerk (par. 3-5-9). As Kanellos and [People ex rel.

Hanrahan v. Beck, 54 Ill.2d 561, 301 N.E.2d 281 (1973)] make clear, a home-rule unit

may preempt statutory provisions enacted prior to the adoption of our present

Constitution, as was accomplished in the present instance. 309 N.E.2d at 579.

Clearly, then, the provisions of the 1970 Constitution are not deemed to restrict municipalities in

the form of government impressed by general statute on any given city or village. On the

contrary, once cities and villages have been organized under the general law, their municipal

status alone will allow the residents by referendum to use the 1970 Constitution in choosing

whatever form of government they desire or modifying any form to meet the needs of the

community. See also Boytor v. City of Aurora, 81 Ill.2d 308, 410 N.E.2d 1, 43 Ill.Dec. 1 (1980);

Marshall v. City of Chicago Heights, 59 Ill.App.3d 986, 376 N.E.2d 657, 17 Ill.Dec. 511 (1st

Dist. 1978); Pechous v. Slawko, 64 Ill.2d 576, 357 N.E.2d 1144, 2 Ill.Dec. 701 (1976).

V. [1.81] DISSOLUTION AND CONSOLIDATION OF MUNICIPALITIES

Like private corporations, municipal corporations can be and sometimes ought to be

dissolved. The general rule, though, is that continued existence of a municipal corporation cannot

be questioned collaterally. Town of Geneva v. Cole, 61 Ill. 397 (1871). In addition, in People ex

rel. Petty v. Thomas, 361 Ill. 448, 198 N.E. 363 (1935), it was held that the officers of a

municipal corporation, as well as the residents living within its boundaries, are just as powerless

to dissolve it except in the manner prescribed by statute. Logically, it would appear from the very

short division on dissolution in the Illinois Municipal Code (Code ‚§‚§7-6-1 through 7-6-8), as well

as from the obvious problems involved with existing bonds and other liabilities, that the

continued existence of a body politic and corporate is something to be encouraged. To that end,

the General Assembly added a division, Consolidations (Code ‚§‚§7-7-1 through 7-7-12), to the

Code. A ‚“consolidation‚ pursuant to this division is the method by which two or more

municipalities are dissolved simultaneously and a new municipality is incorporated. In connection

with any dissolution, while it is not clear whether the constitutional creation of home rule units

under the 1970 Constitution has changed the ultimate power of the legislature over the existence

of such home rule units, it can be argued that just as the authority must first be granted by the

General Assembly to incorporate, so too it must be granted to dissolve. The power of the General

Assembly to create municipal corporations is based on the preemption sections of the 1970

Constitution. ILL.CONST. art. VII, ‚§‚§6(g), 6(h), 6(i). Accordingly, no nonexistent municipality

can become a home rule unit by creating itself. Therefore, because cities and villages cannot be

created except in the manner provided by law, the author believes that municipalities cannot be

dissolved or consolidated except in the manner provided by law.

A. [1.82] Involuntary Dissolution

Any time there are fewer than 50 persons populating any given city or village, upon petition

by the county board to the circuit court of the county within which that municipality is located,

that particular city or village may be ordered to dissolve after a hearing upon notice as directed by

the court. Illinois Municipal Code ‚§7-6-7. The steps that must be taken to wind up the affairs of

the corporation are then substantially identical to those procedures for the acting officers of a

municipality to follow in the voluntary dissolution of a corporation. See Code ‚§‚§7-6-4 through 7-

6-6.

B. [1.83] Voluntary Dissolution

Voluntary dissolution occurs after a referendum on the proposition to dissolve is petitioned

for by a number of electors equal to a simple majority of the total votes cast at the last preceding

general municipal election. Illinois Municipal Code ‚§7-6-1. When the municipal clerk receives

such a petition, the clerk certifies the question of whether the municipality should be dissolved to

the proper election authorities, who submit the proposition to the electors of the municipality in

accordance with the Election Code (id.) and in substantially the form set out in Municipal Code

‚§7-6-2. If a majority of votes cast on the question are affirmative, the municipality is dissolved,

and if a majority are negative, the municipality continues. Code ‚§7-6-3. If defeated, the

proposition cannot be resubmitted to a vote for a period of 22 months. Id.

1. [1.84] Action by Officers

If the vote is in favor of dissolution, those holding elected office become mere acting officers

whose sole object is to wind up the affairs of the corporation. Illinois Municipal Code ‚§7-6-4. By

statute, there will be no further elections for municipal officers since that municipal corporation is

automatically dissolved upon the returns being made and canvassed. Id. Pursuant to Division 6 of

Article 7 of the Code, those acting officers, in closing up the business affairs of that municipality,

must do the following:

a. give notice of the result of the election to the Secretary of State within ten days after the

election and file a copy of the notice with the county clerk (‚§7-6-5);

b. make the necessary conveyances of title to municipal properties (‚§7-6-4);

c. levy and collect taxes for the purposes of paying debts and obligations but create no new

obligations of the municipality (id.);

d. distribute all money remaining after winding up the affairs of the municipality to the

school treasurer for the township or school unit, as the case may be, in which the greater

part of the municipality was situated (id.); and

e. file with the county clerk a statement under oath reflecting all of the closing-up

transactions (‚§7-6-6).

2. [1.85] Action by Creditors and Others

It would appear that the assignment of elected officers to wind up the affairs of the

municipality and the power granted to them to levy and collect taxes should, in the ordinary

circumstances, assure that all claims against the municipality will be paid upon its dissolution.

However, there is a line of cases holding that when there is a complete dissolution of a

corporation and no officers remain to wind up its affairs, creditors of the corporation are

practically without remedy as far as an appeal to the judiciary is concerned. Rees v. City of

Watertown, 86 U.S. (19 Wall.) 107, 22 L.Ed. 72 (1873); Supervisors v. Rogers, 74 U.S. (7 Wall.)

175, 19 L.Ed. 162 (1868); Ernest M. Loeb Co. v. Avoyelles Drainage District No. 8, 92 F.Supp.

126 (W.D.La. 1950), aff’d, 189 F.2d 965 (5th Cir. 1951). In Barkley v. Levee Commissioners, 93

U.S. (3 Otto) 258, 23 L.Ed. 893 (1876), the United States Supreme Court held that the only

recourse for such creditors of a defunct and dissolved municipal corporation is an appeal to the

legislature of the state in which the city or village was located. In another case, it was held that (a)

the courts have the power to compel the levy and collection of taxes by mandamus, but when no

officer can be found to perform the duty of levying and collecting them, there is no sufficient

ground for equity jurisdiction; (b) the principle is the same when no one can be found to accept

the office of collector of taxes that have already been levied; and (c) no power exists in either a

court of equity or a court of law to fill the office of tax collector. Thompson v. Allen County, 115

U.S. 550, 29 L.Ed. 472, 6 S.Ct. 140 (1885), aff’g 13 F. 97 (D.Ky. 1882). Both Barkley and

Thompson have been cited regularly as authority. See Rorick v. United States Sugar Corp., 120

F.2d 418 (5th Cir. 1941); Board of Education of Independent School District 20, Muskogee,

Oklahoma v. State of Oklahoma, 409 F.2d 665 (10th Cir. 1969).

C. Consolidation of Municipalities

1. [1.86] Power To Consolidate

The provisions of Illinois Municipal Code ‚§7-7-1, et seq., offer an alternative to any other

method of unifying municipal corporations allowed by law. Any two or more municipalities

located in one or more counties may consolidate provided each county has a population of not

more than 200,000 based on the most recent federal census and the municipalities are contiguous

to each other or will be contiguous upon consolidation. Municipalities are not precluded from

consolidating and deemed to be contiguous regardless of whether the municipalities are separated

by a park or forest preserve district, railroad or public utility right-of-way, or highway or toll

highway under the jurisdiction of any township or any department or division of the state.

However, any such park or forest preserve district, railroad or public utility right-of-way, or

highway or toll highway under the jurisdiction of any township or any department or division of

the state is not considered part of the consolidated municipality. Code ‚§7-7-3. Once consolidated,

the new (consolidated) municipality shall comprise the entire territory and all of the inhabitants of

all of the dissolved (consolidating) municipalities combined. It shall also ‚“inherit‚ all of the

liabilities and assets of the consolidating municipalities, including pending lawsuits, and must

honor vested rights of individuals (including bondholders) and afford them all remedies they had

prior to the consolidation as well as those afforded as new remedies by reason of the

consolidation. Code ‚§7-7-12.

2. [1.87] Resolution or Petition; Referendum

Before any simultaneous dissolution and consolidation shall be effective, the Illinois

Municipal Code requires a specific question (the form of which is found in Code ‚§7-7-9) to be

put to the voters in each of the consolidating municipalities. Code ‚§7-7-4. No proposed

consolidation ordinance shall be effective unless approved by a referendum conducted in accord

with ‚§28-7 of the Election Code, 10 ILCS 5/28-7. See Municipal Code ‚§7-7-7. If the

consolidation referendum is approved by voters in fewer than all of the consolidating

municipalities, the consolidation shall be effective only as to those municipalities in which the

question is approved and that will be contiguous as of the date of the consolidation. However, in

those situations involving three or more municipalities, the form of the proposed ordinance could

require that the question be approved by a majority of the voters voting in each of the

consolidating municipalities in order to become effective. Code ‚§7-7-8.

3. [1.88] Proposed Ordinances; Form of Government

While the public question for consolidation is initiated in accord with ‚§28-7 of the Election

Code, Illinois Municipal Code ‚§7-7-4 requires that the petition or resolution of each consolidating

municipality must be accompanied by and incorporate by reference a proposed consolidation

ordinance ‚” each of which is entitled ‚“Ordinance Providing for the Consolidation of the Cities,

Villages, or Incorporated Towns of ____________ into a Single Municipality with the Interim

Name of ____________‚ and shall otherwise be identical except as to form. In substance, at a

minimum the proposed ordinance must designate the municipal clerk of one of the consolidating

municipalities who shall perform the duties of the local election official (see Code ‚§7-7-11) and

contain the items and information set forth with specificity in ‚§7-7-4, as follows:

(1) the minimum number of municipalities or the specific municipalities in which

the approval of the voters shall be necessary to effect the consolidation; (2)

procedures for the selection of the permanent name of the consolidated

municipality; (3) the compensation of the corporate authorities of the consolidated

municipality; (4) the date the consolidation shall be effective; (5) procedures for the

orderly succession of powers, functions, assets, liabilities and personnel and the

merger of the administrative offices of the consolidating municipalities; (6) the dates

for election of the initial corporate authorities and other elected officers of the

consolidated municipality; (7) the identity of the members of the transition

committee; and (8) a form of government for the consolidated municipality,

including: (i) the powers and functions of the various officers; (ii) their terms of

office, whether those terms shall be staggered and if so, the procedure for staggering

the terms of the initial officers; (iii) the manner of selection of the officers; and (iv) if

the form of government is other than a form established by this Code, whether the

positions of treasurer and clerk are elective or appointive.

The consolidation ordinance may contain such other matters as are necessary or appropriate for

the purposes of implementing the consolidation, including specifications of the form of

government, whether an existing one established by the Illinois Municipal Code or one created

pursuant to Article VII of the Illinois Constitution. Code ‚§7-7-5. The ordinance in its proposed

form must be filed with the clerk of each consolidating municipality and be made available to the

public by those clerks. Code ‚§7-7-4. Each such clerk must also publish the ordinance in its

proposed form in a newspaper of general circulation in each consolidating municipality not less

than 30 nor more than 60 days prior to the referendum. Code ‚§7-7-6.

4. [1.89] Transition

Provided the referendum question has been approved, the corporate authorities of each

consolidating municipality shall adopt their consolidation ordinance during their first regular

meeting following the declaration of the results of the referendum. Within five days after the

adoption of the consolidation ordinance by each of the consolidating municipalities, the transition

committee shall conduct its first meeting. Thereafter, the transition committee shall exercise the

power and undertake the functions set forth in the consolidation ordinance, which shall take effect

as an intergovernmental agreement, and shall prepare a code of ordinances for the consolidated

municipality. However, an ordinance that was in effect within the corporate limits of a

consolidating municipality shall remain in effect within the territory of the dissolved

consolidating municipality until expressly or impliedly repealed by the corporate authorities of

the new (consolidated) municipality, unless the consolidating ordinance provides otherwise.

Illinois Municipal Code ‚§7-7-10.

5. [1.90] Permanent Name

Illinois Municipal Code ‚§7-7-10 states that in determining the permanent name of the new

(consolidated) municipality, the transition committee and the Secretary of State shall follow the

applicable provision of Code ‚§2-1-7.

6. [1.91] Effective Date of Consolidation

It is anticipated that the transition committee will have ample opportunity to finalize its work

because the automatic dissolution of the original municipalities and the consolidation forming the

new municipality occur as soon as the newly elected officers of the consolidated municipality

take office. Except for the notice procedures contained in Illinois Municipal Code ‚§7-6-5 (see

‚§1.84 above), the dissolution procedures of Division 6 of Article 7 of the Code do not apply.

However, the chief executive officer of the new (consolidated) municipality shall comply with the

requirements of Code ‚§2-1-5 relating to records. Code ‚§7-7-12.

7. [1.92] Election of Officers

In accordance with Illinois Municipal Code ‚§7-7-11, following the referendum, the first

election of officers of the new (consolidated) municipality shall occur at the next consolidated

election established pursuant to ‚§2A-1.1 of the Election Code, 10 ILCS 5/2A-1.1, and shall be

conducted in accord with the Election Code, except that the municipal clerk designated in the

consolidation ordinance shall perform the duties of the local election official and all of the

municipal clerks of the consolidating municipalities shall constitute the electoral board and the

canvassing board. As set forth in Municipal Code ‚§7-7-11, the method of computing the number

of signatures required for the nominating petitions for the primary and consolidated elections also

comprise deviations from the Election Code.

VI. APPENDIX

A. [1.93] Manager Ordinance ‚” By Referendum

ORDINANCE NO. ________

AN ORDINANCE AMPLIFYING THE POWERS AND DUTIES OF

THE VILLAGE MANAGER AND ESTABLISHING VARIOUS DEPARTMENTS

WHEREAS, on __________, 20__, the electorate of the Village of _______________ adopted

the managerial form of municipal government; and

WHEREAS, pursuant to Chapter 65, Section 5-3-10 of the Illinois Compiled Statutes, a

general ordinance is to be adopted by the President and Board of Trustees elaborating the

powers and duties of the Village Manager and establishing the various departments of the

municipal government; and

WHEREAS, the President and Board of Trustees have determined that the following

Ordinance is in the best interests of the residents of the Village of _______________;

NOW, THEREFORE, BE IT ORDAINED BY THE PRESIDENT AND BOARD OF

TRUSTEES OF THE VILLAGE OF _______________, ____________ COUNTY,

ILLINOIS:

SECTION ONE: That Article I of Chapter 4 of the Municipal Code of the

_______________, as amended, is hereby further amended in its entirety so that Article I of

Chapter 4 shall hereafter be and read as follows:

ARTICLE I: Village Manager

Section 4.101. Office. The position of Village Manager as defined by the Illinois Compiled

Statutes is hereby established.

Section 4.102. Appointment and Removal of Village Manager. The Village Manager shall be

appointed by the President and Board of Trustees for an indefinite term. He shall be

appointed without regard to his political beliefs, and need not be a resident of the Village

when appointed, but during his tenure of office, he shall reside within the Village. He shall

be chosen on the basis of his executive and administrative qualifications with special

reference to his actual experience in or his knowledge of accepted practice in respect to the

duties of his office hereinafter set forth. Neither the Village President, the Village Clerk, nor

any Village Trustee shall receive such appointment during the term for which he will have

been elected or within one year after the expiration of his term.

The Village Manager may be removed by the President and Board of Trustees by a

majority vote of the entire Board at any time.

Any vacancy in the office of the Village Manager shall be filled within 90 days after the

effective date of such vacancy. In the case of the absence or disability of the Manager, the

Village Board may designate a qualified administrative official of the municipality to

perform the duties of the Manager during such absence or disability.

Section 4.103. Powers and Duties of the Village Manager. The Village Manager shall be the

administrative head of the Village government, and he shall be responsible for the efficient

administration of all departments.

The powers and duties of the Manager shall be as follows:

A. To enforce the laws and ordinances within the municipality;

B. To appoint and remove departments heads and to appoint and remove all directors

of departments and all other appointed officials and employees except when the

appointment power is vested in the elected officials of the Village under the Statutes

of the State of Illinois or under local ordinances; no appointment shall be made on

any basis other than that of merit and fitness;

C. To exercise control of all departments and divisions thereof that may be created by

the Board of Trustees;

D. To attend all meetings of the Village Board unless excused therefrom by the Board;

the Manager shall have the privilege of taking a part in the discussion of all matters

coming before the Board but shall have no vote therein; he shall be entitled to notice

of all meetings, regular and special, of the Board;

E. To recommend to the Board of Trustees for adoption such measures as he may

deem necessary or expedient;

F. To have all the powers and exercise all the duties granted to the Village Clerk and

Comptroller with respect to the preparation of a report of estimated funds

necessary to defray the expenses of the Village for the fiscal year for the

consideration of the Board of Trustees prior to the preparation of the annual

appropriation ordinance;

G. To prepare and submit to the Board of Trustees a monthly report of activities of all

departments under his jurisdiction;

H. To purchase all materials, supplies and equipment for which funds are provided in

the budget, but he may not purchase any items that exceed any working budget

until the Village Board has increased the appropriation; provided that for

purchases of more than $500 he shall be required to receive sealed bids and shall

present such bids to the Village Board for approval or rejection; the Manager shall

advise the Village Board as to whether any contract offered is desirable, or which of

several contracts offered is most desirable for the Village; in case of accidents or

other circumstances creating an emergency, the Village Manager may award

contracts, acquire services, and make purchases for the purposes of repairing

damages caused by the accident or meeting the public emergency; but he shall file

promptly within 14 days with the Village Board a certificate showing such

emergency and the necessity of such action, together with an itemized account of all

expenditures; and

I. To perform such other duties as may be prescribed by Article 5 of Chapter 65 of the

Illinois Compiled Statutes or as may be required of him by ordinance or resolution

of the Board of Trustees.

Section 4.104. Bonds and Compensation. The Village Manager shall furnish a public

employee’s fidelity and performance surety bond as provided by statute, but not less than

the amount of $100,000, to be approved by the Village Board, said bond to be conditioned

on the faithful performance of his duties. The premium of the bond shall be paid by the

Village.

The Village Manager shall receive such compensation as the Village Board shall fix from

time to time by ordinance or resolution.

Section 4.105. Saving Clause. If any section, subsection, or sentence, clause, or phrase of this

Article is for any reason held invalid, such decision or decisions shall not affect the validity

of the remaining portions of this Article. All ordinances of the Village prescribing the duties

of heads of departments shall remain in full force and effect except insofar as they conflict

with the provisions of this Article, in which case the provisions of this Article shall govern.

SECTION TWO: That Article II of Chapter 4 of the Municipal Code of the Village of

_______________, as amended, is hereby further amended in its entirety so that Article II of

Chapter 4 shall hereafter be and read as follows:

ARTICLE II: Department of Law

Section 4.201. Creation of Department ‚” Appointment. There is hereby established a

Department of Law, which shall be under the jurisdiction and control of the Village

Manager. The head of the Department of Law shall be the Village Attorney, appointed by

the Village Manager for an indefinite period of time. The Department of Law shall embrace

such attorneys, clerks, and any other employees as the Village Board may provide by

annual appropriation ordinance.

Section 4.202. Special Counsel. The Village Manager with the consent of the President and

Board of Trustees may from time to time retain special counsel to represent or advise the

Village on legal maters if no Village Attorney has been appointed or to assist the Village

Attorney in those instances deemed necessary.

Section 4.203. Suits and Actions. The Village Attorney shall prosecute or defend any and all

suits or actions at law or in equity to which the Village may be a party, or in which it may

be interested, or that may be brought against or by any officer of the Village on behalf of

the Village or in the capacity of such person as an officer of the Village. With regard to

matters in litigation, the Village Attorney shall have the right of direct communication to

the Village Board. He shall also perform such other duties as may be required of him from

time to time by the Village Manager.

Section 4.204. Judgments. It shall be the duty of the Village Attorney to see to the full

enforcement of all judgments or decrees entered in favor of the Village and of all similar

interlocutory orders.

Section 4.205. Advice. The Village Attorney shall be the legal advisor of the Village and shall

render advice on all legal questions affecting it whenever requested to do so by any Village

official through and with the approval of the Village Manager, except as provided for in

Section 4.203. Upon request by the President and Board of Trustees or the Village Manager,

he shall reduce any such opinion to writing.

Section 4.206. Creation of Office of Village Prosecutor ‚” Appointment. There is hereby

created the office of Village Prosecutor, which is part of the Department of Law under the

control of the Village Attorney. The Village Prosecutor shall be appointed by the Village

Manager and may be the same appointed officer occupying the position of Village Attorney.

Section 4.207. Duties of Village Prosecutor. The Village Prosecutor shall prepare all charges

and complaints against, and shall appear in the appropriate court in the prosecution of,

every person charged with a violation of a Village Ordinance or any regulations adopted

under authority of the Village or charged with the commission of a misdemeanor as

declared by the corporate authorities, or by virtue of its authority. He shall advise and assist

all Village officers or employees, having first obtained consent from the Village Manager,

on questions of law, in filing complaints, making arrests, and preparing for the prosecution

of ordinance violations. He shall also perform such other duties as may be required of him

from time to time by the Village Manager.

SECTION THREE: That Article III and Article VI of Chapter 4 of the Municipal Code of

the Village of _______________, as amended, are hereby further amended by adding

thereto an entirely new Article III of Chapter 4, said Article to be and read as follows:

ARTICLE III: Department of Building and Zoning

Section 4.301. Creation of Department ‚” Appointment. There is hereby established a

Department of Building and Zoning, which shall be under the jurisdiction and control of

the Village Manager. The head of the Department shall be the Director of Building and

Zoning appointed by the Village Manager for an indefinite period of time. The Department

of Building and Zoning shall embrace such inspectors, clerks, and any other employees as

the Village Board may provide by annual appropriation ordinance.

Section 4.302. Duties. It shall be the duty of the Director of Building and Zoning to see to the

enforcement of all ordinances and provisions relating to building, plumbing, or zoning and

to inspect all buildings or structures being erected or altered, as frequently as may be

necessary to insure compliance with the applicable Village Ordinances. He shall perform

such other duties as may be required of him from time to time by the Village Manager.

Section 4.303. Powers. The Director of Building and Zoning shall have the power to order

all work stopped on construction, alteration, or repair of buildings in the corporate limits of

the Village of _______________ when such work is being done in violation of any provisions

of any Ordinance relating thereto, or in violation of the Zoning Ordinance of the Village of

_______________.

A. The Director of Building and Zoning has the stop-order power as set forth in the

Municipal Code of the Village of _______________.

B. The Director of Building and Zoning shall have the power to make or cause to be

made an entry into any building or premises where the work of altering, repairing, or

construction of any building or structure is going on for the purpose of making

inspections at any reasonable hour.

C. The Director of Building and Zoning shall have all the necessary powers as set

forth in the pertinent sections of the Municipal Code of the Village of _______________

relating to building and zoning so as to enforce the Ordinances of the Village of

_______________.

Section 4.304. Chief Electrical Inspector. There is hereby created the office of Chief

Electrical Inspector, who shall be the head of the Electrical Department and ex-officio

Chairman of the Electrical Commission. The Chief Electrical Inspector shall be appointed

by the President with the advice and consent of the Board of Trustees and may be the same

appointed officer occupying the position of Director of Building and Zoning.

Section 4.305. Duties. The duties of the Chief Electrical Inspector shall be the enforcement

of the ordinances of the Village of _______________ relating to electricity and to supervise,

inspect, and approve all electric wires and apparatus. Should any such electric wires or

apparatus be found unsafe to life or property, he shall notify the person, firm, or

corporation owning, using, installing, or operating them to place them in safe condition

within a reasonable time not to exceed five days thereafter. It shall be the duty of such

person, firm, company, or corporation to put such equipment in safe condition.

SECTION FOUR: That Article IV and Article V of Chapter 4 of the Municipal Code of the

Village of _______________, as amended, are hereby further amended so that Article IV of

Chapter 4 shall hereafter be and read as follows:

ARTICLE IV: Department of Public Works

Section 4.401. Creation of Department ‚” Appointment. There is hereby established a

Department of Public Works, which shall be under the jurisdiction and control of the

Village Manager. The head of the Department shall be the Director of Public Works,

appointed by the Village Manager for an indefinite period of time. Within this Department

there must be an individual certified as a Public Water Supply Operator Class A, pursuant

to the Illinois Compiled Statutes, Chapter 415, Sections 45/1 ‚”œ 45/23. The Department of

Public Works shall also embrace such foremen, maintenance personnel, clerks, and any

other employees as the Village Board may provide by annual appropriation ordinance.

Section 4.402. Duties. The Director of Public Works shall be charged with the following

duties:

A. To keep the streets and alleys clear, free from obstructions, and in good repair;

B. To have the care and custody of the municipal water supply system and all

equipment, pipes and machinery pertaining thereto;

C. To be responsible for the care of all such property, and for the efficient management

of the water supply system;

D. To perform all functions and duties that are imposed by any provision of this Code

on the Director of Public Works, the Superintendent of Streets, or the

Superintendent of Water;

E. To be responsible for the care of all public parkways, trees located on public

property, public properties, and municipal buildings; and

F. To perform such other duties as may be required of him from time to time by the

Village Manager.

Section 4.403. Construction. The Street Department and the Water Department are hereby

combined into a single Department of Public Works, and all employees of the Village of

_______________ who are, as of the date of this Ordinance, employees of the Water

Department and the Street Department shall be employees of the Department of Public

Works. The Department of Public Works shall be under the supervision and direction of

the Director of Public Works. Whenever this Code imposes any function or duties on the

Superintendent of Streets or the Superintendent of Water, such functions or duties shall be

performed by the Director of Public Works.

Section 4.404. Ordinances. The Director of Public Works shall report to the Village

Manager any ordinance violation with respect to the use or care of the streets, alleys, or

sidewalks of the Village of which he may become cognizant. The Director of Public Works,

and all employees of the Department of Public Works, shall be charged with, and shall see

to the enforcement of, any ordinance provisions relating to the streets, alleys, sidewalks, and

water supply system when no provision to the contrary is made.

SECTION FIVE: That Articles VI, VIII, and IX of Chapter 4 of the Municipal Code of the

Village of _______________, as amended, are hereby further amended in their entirety so

that the new Article V shall hereafter be and read as follows:

ARTICLE V: Department of Finance

Section 4.501. Creation of Department ‚” Appointment. There is hereby established a

Department of Finance, which shall be under the jurisdiction and control of the Village

Manager. The head of the Department shall be the Director of Finance, appointed by the

Village Manager for an indefinite period of time. The Department of Finance shall embrace

such accountants, clerks, and any other employees as the Village Board may provide by

annual appropriation ordinance.

Section 4.502. Duties of Director. The Director of Finance shall be the head of the

Department of Finance and shall be the ex-officio Village Comptroller. In addition to the

duties required by state law and in all cases in which the duty is not expressly charged to

any other department or office, it shall be the duty of the Director of Finance to act,

promote, secure, and preserve the financial and property interests of the Village. He shall

have the following duties, functions and responsibilities:

A. To supervise the Village treasury;

B. To maintain all accounting records, and reports as to Village finance in accordance

with state law and generally accepted accounting principles;

C. To report at least monthly on financial matters to the Village Manager;

D. To establish all procedures relating to the collection, encumbrance, and

disbursement of the Village’s funds;

E. To make recommendations to the Village Manager as to the financial condition of

the Village and suggestions as to its improvement;

F. To approve all building permits before issuance so as to insure the applicant’s

financial compliance with Village ordinances;

G. To maintain an inventory of real and personal property owned or leased by the

Village together with tax exempt records;

H. To supervise all other offices of the Village insofar as they relate to the collection or

disbursement of Village funds;

I. To perform all duties and responsibilities charged to a Village Comptroller,

including the maintenance of special assessment accounts and general obligation

and revenue bond accounts; and

J. To perform such other duties as may be required of him from time to time by the

Village Manager.

Section 4.503. Treasurer. There is hereby created the position of Village Treasurer who shall

be appointed by the Village Manager and shall serve under the Director of Finance. He may

be the same appointed officer occupying the position of Finance Director.

Section 4.504. Bond. The Treasurer shall give a bond before entering upon the duties of his

office in the sum required by the Board of Trustees, but such amount shall not be less than

that required by statute. This bond shall be conditioned on the faithful performance of his

duties by the Treasurer and shall be conditioned to indemnify the Village for any loss by

reason of any neglect of duty or any act of the Treasurer. The premium of the bond shall be

paid by the Village.

Section 4.505. General Duties. The Treasurer shall perform such duties as may be

prescribed for him by statute or ordinance. In addition to other duties, the Treasurer shall

act as Village Collector and perform all duties of such office as may be prescribed by statute

or ordinance and shall preserve all warrants returned to him. He shall receive all money

paid into the Village, and he shall pay out money only on vouchers or orders properly

signed by the President.

Section 4.506. Deposit of Funds. The Treasurer shall deposit the Village funds in such

depositories as may be selected from time to time as provided by statute or ordinance, and

he shall keep the deposit of the Village money separate and distinct from his own money,

and shall not make private or personal use of any Village money.

Section 4.507. Records. The Treasurer shall keep records showing all money received by

him, showing the source from which it is received and the purpose for which it is paid, and

he shall keep records at all times showing the financial status of the Village.

Section 4.508. Accounting. The Treasurer shall keep such books and accounts as may be

required by statute or ordinance, and he shall keep them in the manner required by law

and good accounting principles and as directed by the Director of Finance.

Section 4.509. Special Assessment Funds. All moneys received on any special assessment

shall be held by the Treasurer as a special fund to be applied only to the payment of the

improvement, or bonds and vouchers issued therefor, together with the interest thereon, for

which the assessment was made, and such moneys shall be used for no other purpose, unless

to reimburse the Village for money expended for such improvement. Payments on bonds or

vouchers shall be made in accordance with the statutes and the laws, and the Treasurer

shall keep his books and accounts in such a manner so that proper prorations in payment of

principal and interest can be made and ascertained.

Section 4.510. Warrants ‚” Transfer of Funds. All warrants drawn on the Treasurer must be

signed by the President, stating the particular funds or appropriation to which they are

chargeable and the person to whom payable, and no money shall be otherwise paid except

as may be provided by statute. Money shall not be transferred by the Treasurer from one

fund to another, after it has been received by him, nor appropriated or paid, except as may

be ordered by the President and Board of Trustees in manner and form prescribed by

statute.

SECTION SIX: That Article X of Chapter 4 of the Municipal Code of the Village of

_______________, as amended, is hereby further amended in its entirety so that the new

Article VI shall hereafter be and read as follows:

ARTICLE VI: Department of Engineering

Section 4.601. Creation of Department ‚” Appointment. There is hereby established a

Department of Engineering, which shall be under the jurisdiction and control of the Village

Manager. The head of the Department shall be the Director of Engineering, appointed by

the Village Manager for an indefinite period of time. The Department of Engineering shall

also embrace such engineers, inspectors, clerks, and any other employees as the Village

Board may provide by annual appropriation ordinance.

Section 4.602. Appointment of Director of Engineering. The Director of Engineering shall be

appointed by the Village Manager for an indefinite term of office. He shall be chosen on the

basis of his professional and administrative competence. He shall have a degree in civil

engineering from an accredited college or university, shall have practical experience in

municipal engineering, and should be licensed as a professional engineer pursuant to the

applicable laws of the State of Illinois.

Section 4.603. Duties. The Director of Engineering shall be responsible for furnishing

professional engineering service to the Village in connection with planning and executing

public works and improvements. He will give technical advice to the Village President and

Board of Trustees upon request from the Village Manager on matters concerning the

development of the Village. His work shall be performed under the direction of the Village

Manager. He shall also perform such other duties as may be required of him from time to

time by the Village Manager.

SECTION SEVEN: That Article XI and Article XII of Chapter 4 of the Municipal Code of

the Village of _______________, as amended, are hereby further amended in their entirety

so that the new Article VII shall be and hereafter read as follows:

ARTICLE VII: Department of Health Services

Section 4.701. Creation of Department. There is hereby established a Department of Health

Services, which shall be under the jurisdiction and control of the Village Manager. The

head of the Department shall be the Director of Health Services appointed by the Village

Manager for an indefinite period of time. The Department of Health Services shall embrace

such inspectors and other employees as the Village Board may provide by annual

appropriation ordinance.

Section 4.702. Duties. It shall be the duty of the Director of Health Services to enforce all

rules, regulations, and orders of the Illinois and __________ County Departments of Public

Health and the ordinances of the Village in relation to matters pertaining to the

preservation of public health within the Village, and he shall

A. Execute and enforce all ordinances of the Village relating to public health and

sanitation;

B. Issue such orders as may be necessary to carry out the rules proposed by the Board

of Health and approved by the President and Board of Trustees;

C. Execute and enforce all ordinances of the Village relating to the health standards

maintained in every place of business in the Village where services of a personal

nature are furnished to the public or where foods, food products, milk, milk

products, and beverages of every nature and description whatsoever are handled,

sold, given away, stored, manufactured, or processed;

D. Investigate the existence of any contagious disease within the Village and report any

contagious disease discovered to the Village Board of Health and to the County

Board of Health, and act without delay in carrying out such measures for

controlling the progress of the disease as the County Board of Health shall propose;

E. Make all necessary sanitary and health investigations and inspections and cause all

nuisances, whether public or private, affecting the health of persons in private

employment and the public generally, to be abated with reasonable promptness;

F. Initiate plans for dealing with public health problems not already included in the

public health program;

G. Perform such other duties relating to health and sanitation as the Village Manager

shall direct; and

H. Request the Police Department of the Village and such other state or municipal

authorities for such assistance as he may deem necessary in the performance of the

duties of his office and cause the arrest of offenders violating any of the Village

ordinances relating to public or private nuisances, public health, and sanitation.

Section 4.703. Reports. The Director of Health Services shall furnish the Board of Health

and the Village Manager a written report ten days after the expiration of each month in

which shall be set forth his activities during the preceding month, the name and address of

each location in which a health violation was discovered, the condition found, the correction

required, and whether there has been compliance.

Section 4.704. Penalty. Any person violating or refusing to obey an order of the Director of

Health Services or concealing any notice posted by or under the authority of the Board of

Health shall be fined no less than $10 or more than $500.

Section 4.705. Office of Health Officer. There is hereby created the office of Health Officer.

The Health Officer shall be a licensed physician qualified to practice in the State of Illinois

who is a resident of and who practices in the Village of _______________. He shall be

appointed by the Village Manager with the approval and consent of the President and

Board of Trustees for an indefinite period. The Health Officer shall serve as a technical

advisor for the Board of Health. He shall supply such information to the best of his ability

on medical matters for consideration by the Board of Health or the Director of Health

Services. The Health Officer shall receive such compensation as may be provided by the

annual appropriation ordinance.

SECTION EIGHT: That Sections 6.101, 6.102, 6.103 and 6.104 of Chapter 6 of the

Municipal Code of the Village of _______________, as amended, are hereby deleted and

new Sections 4.801, 4.802, 4.803, and 4.804 are hereby created; new Sections 4.801, 4.802,

4.803, and 4.804 shall be and read as follows:

ARTICLE VIII: Department of Police

Section 4.801. Creation of Department ‚” Appointment. There is hereby established a

Department of Police, which shall be under the jurisdiction and control of the Village

Manager. The head of the Department shall be the Chief of Police appointed by the Village

Manager for an indefinite period of time. The Department of Police shall embrace such

officers and members in number and rank as may be provided for from time to time by

resolution of the President and Board of Trustees. The Department shall also embrace such

clerks, radio operators, and other employees as the Village Board may provide by annual

appropriation ordinance.

Section 4.802. Office of Chief of Police. Should the appointment to the position of the Chief

of Police be given to a member of the __________ Police Department, the appointee shall

not lose his then-existing rank as established by the Fire and Police Commission of the

Village of __________ during his tenure as Chief of Police.

Section 4.803. Duties of Chief of Police. The Chief of Police shall be the head of the

Department of Police and shall have the following duties, functions, and responsibilities:

A. To seek the enforcement of all ordinances of the Village and of all statutes effective

in the Village, to preserve order, to prevent infractions of law, and to arrest

violators thereof;

B. To be the keeper of the Village jail and have custody of all prisoners incarcerated

therein;

C. To keep such records and make such reports concerning the activities of his

Department as may be required by statute or ordinance;

D. To be responsible for the performance by the Department of Police of all its

functions;

E. To be the custodian of all lost, abandoned, or stolen property in the Village of

__________; and

F. To perform such other duties as may be required of him from time to time by the

Village Manager.

Section 4.804. Saving Clause. All ordinances or parts of ordinances in conflict herewith are

hereby repealed, and the remaining Sections of Chapter 6 of the Municipal Code of the

Village of _______________, as amended, not in conflict herewith shall remain in full force

and effect.

SECTION NINE: That Sections 7.101 and 7.102 (a) of Chapter 7 of the Municipal Code of

the Village of _______________, as amended, are hereby deleted and new Sections 9.101,

9.102, and 9.103 are hereby created; new sections 9.101, 9.102 and 9.103 shall be and read

as follows:

ARTICLE IX: Fire Department

Section 9.101. Creation of Department ‚” Appointment. There is hereby created a Fire

Department of the Village of _______________, which shall be under the jurisdiction and

control of the Village Manager. The head of the Department shall be the Fire Chief,

appointed by the Village Manager for an indefinite period of time. The Fire Department

shall embrace such officers and firefighters as may be provided for from time to time by

resolution of the President and Board of Trustees. The Fire Department shall also embrace

such other employees as the Village Board may provide by annual appropriation ordinance.

Section 9.102. Office of Fire Chief. Should the appointment to the position of Fire Chief be

given to a member of the __________ Fire Department, the appointee shall not lose his thenexisting

rank as established by the Fire and Police Commission of the Village of

_______________ during his tenure as Fire Chief.

Section 9.103. Saving Clause. All ordinances or parts of ordinances in conflict herewith are

hereby repealed, and the remaining Sections of Chapter 7 of the Municipal Code of the

Village of _______________, as amended, not in conflict herewith, shall remain in full force

and effect.

SECTION TEN: That Section 8.102 of Chapter 8 of the Municipal Code of the Village of

_______________, as amended, is hereby further amended so that Section 8.102 shall be and

read as follows:

Section 8.102. Appointments. All officers shall be appointed or selected by the Village

Manager as provided by statute, ordinance, or resolution, exceptfor all elected officials and

those appointments expressly provided by statute, ordinance or resolution to be made by

the President and Board of Trustees.

SECTION ELEVEN: That Article I of Chapter 8 of the Municipal Code of the Village of

_______________, as amended, is hereby further amended by adding thereto an entirely

new Section 8.114, and 8.114 shall be and read as follows:

Section 8.114. Independent Audits. The President and Board of Trustees shall provide for an

annual independent audit of all accounts of the Village of _______________ for the prior

fiscal year, which audits shall be conducted independently of the Village Manager by some

person or firm selected by the President and Board of Trustees. Full reports of such audits

shall be filed in the public records of the Village. The power with respect to such audits by

the President and Board of Trustees shall not be construed in any manner to limit the

responsibility of the Village Manage for the proper expenditures of Village funds.

SECTION TWELVE: This Ordinance shall be in full force and effect from and after its

passage and approval in the manner prescribed by law.

B. [1.94] Manager Ordinance ‚” By Ordinance

No. ______

AN ORDINANCE CREATING

THE OFFICE OF CITY COMPTROLLER

AND CITY MANAGER AND PROVIDING

POWERS AND DUTIES THEREOF

BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF __________ AS

FOLLOWS:

SECTION 1. CREATION OF OFFICE.

There is hereby created the office of City Comptroller, an administrative office of the

City. There is hereby created the office of City Manager, an administrative office of the

City.

Both of these offices, with their functions, duties, and responsibilities, shall be combined

and be held by one person to be known as the City Manager. He shall be the administrative

officer of the City of __________.

SECTION 2. APPOINTMENT OF CITY MANAGER.

The City Manager shall be appointed by the Mayor by and with the advice and consent

of the City Council. The City Manager shall be chosen by the Mayor and that choice shall

be considered by the Council solely on the basis of his executive and administrative

qualification, with special reference to his actual experience in or his knowledge of accepted

practice in respect to the duties of his office hereinafter set forth, and such requirements

and qualifications are hereby declared to be of a nature as to require technical training or

knowledge, and for that purpose it is declared to be expedient that the person considered as

appointee be, if possible, one with an engineering background. At the time of his

appointment he need not be a resident of the City of __________ or of the State of Illinois,

but during his tenure of office he shall reside within the City of __________. No alderman

or Mayor shall receive such appointment during the term for which he shall have been

elected, nor within one year after the expiration of his term.

During the absence or disability of the City Manager, the Mayor with the advice and the

consent of the City Council may designate some properly qualified person to act as City

Manager pro tempore to perform the duties of the office.

SECTION 3. TENURE OF OFFICE.

The term of office of the City Manager shall be co-extensive with and shall not exceed

that of the Mayor appointing him. The City Manager may resign from his office or may be

removed therefrom only in such manner as is provided by the statutes of the State of Illinois

pertaining to the resignation or the removal of appointed officers.

SECTION 4. BOND AND OATH.

Before entering upon the duties of his office, the City Manager shall furnish a surety

bond to be approved by the City Council, said bond to be conditioned on the faithful

performance of his duties. The premium of the bond shall be paid by the City.

Before entering upon the duties of his office, the City Manager shall take and subscribe

the oath prescribed by the statutes of the State of Illinois in such case provided.

SECTION 5. COMPENSATION.

The City Manager shall receive compensation in such amount and manner as the City

Council shall fix from time to time by ordinance or resolution.

SECTION 6. POWERS AND DUTIES WITH REFERENCE TO FISCAL MATTERS.

The City Manager shall be the fiscal agent of the City, and as such shall be charged with

and shall exercise general supervision over all the officers of the City charged in any

manner with the receipt, collection, or disbursement of the City revenues and all funds

required to be in the custody of the City Treasurer.

He shall have custody and control of all documents, including debts, mortgages, leases,

contracts, judgment orders, notes, bonds, and evidences of indebtedness, belonging to the

City except such as are directed by law or ordinance to be deposited elsewhere. He shall

have supervision of the issuance and sale of all bonds, warrants, and obligations.

He shall have supervision over the accounting work of the City. Specifically, but not in

limitation of the above, he shall have the following powers and duties:

A. On or before the 15th day of May in each year and before the annual appropriation

ordinance is prepared by the corporate authorities, he shall submit to the corporate

authorities a report of his estimate, as nearly as may be, of the money necessary to

defray the expenses of the City during the next fiscal year, and in his report, he shall

classify and detail the purposes of expenditures, the aggregate income of the

preceding fiscal year, the City liabilities, and such other information as is necessary

to assist the Mayor and the City Council to adopt an appropriation ordinance.

B. For the purpose of preparing the estimate of income and expenditures, he is

authorized to require all officers to submit statements of the condition and expenses

of their respective offices or departments, a description of proposed City

improvements and the probable expense thereof, a description of all unperformed

contracts and a statement of the amount of all unexpired appropriations of the

preceding year.

C. He shall recommend to the Mayor and the City Council the salaries to be paid each

appointive subordinate employee of the City.

D. With the approval of the City Council, he shall consolidate, combine, or reorganize

positions or units under his jurisdiction, and in the event of any consolidation or

reorganization or the establishment or discontinuance of any places of employment,

he shall notify the Civil Service Commission in writing.

E. He shall purchase all materials, supplies, or equipment subject to and pursuant to

directives and appropriations made and provided by the Mayor and the City

Council, and subject also to the statutes of the State of Illinois pertaining to creation

of liabilities against the City and pertaining to the expenditures or appropriations of

the monies of the City.

F. He shall each month cause to be prepared and shall present to the Council a

statement showing the exact financial condition of the City as of the end of the

preceding month.

G. He shall give such additional reports and information concerning the fiscal matters

of the City as may from time to time be required by the City Council.

H. He shall perform such duties and have such powers as are fixed and conferred on

him as City Comptroller by the statutes of the State of Illinois.

SECTION 7. POWERS AND DUTIES WITH REFERENCE TO CITY MANAGER.

In addition to the above duties, the City Manager shall perform such other duties as are

herein provided.

The City Manager shall be the chief administrative officer of the City and shall be

responsible to the Mayor and to the City Council for the management and operation of all

of the affairs and the departments of the City. As chief administrative officer, he shall have

the management and control of all matters and things pertaining to the operation and

maintenance of the properties of the City and of all of the departments of the City,

including the Department of Public Works, the Fire Department, the Police Department,

the Water Department, the Health Department, the Department of Streets and Sewers, and

the general officers of the City; he shall also have supervision of such other administrative

agencies and departments and officers as may be hereafter created by the City Council

unless the management and control of such departments and officers is expressly delegated

elsewhere. He shall perform his duties in conformity with the civil service laws of the City,

and with the rules of the Police and Fire Commission. Specifically, but not in limitation of

the above, he shall have the following additional powers and duties:

A. He may recommend to the Mayor and to the Council the appointment of all officers

of the City who are required by law to be appointed by the Mayor with the advice

and consent of the City Council, and he may recommend to the Mayor the

appointment of employees and officers who are required to be appointed by the

Mayor. He shall further recommend the removal or suspension of any such officer

or employee when such removal or suspension shall be consistent with the best

interests of the City. All such recommendations for appointment or removal shall be

based on merit and on the qualifications or disqualifications of such officer or

employee without regard to political belief or affiliation.

B. He shall make all necessary purchases of supplies and equipment for all

departments of the City, and for that purpose he is authorized to make expenditures

of $500 or less without preliminary authorization by the Council, provided,

however, that all expenditures and payments, regardless of amount, shall be subject

to the confirmation or approval of the Council and to the limitations imposed by the

adoption of a budget or special appropriation.

C. He shall attend all meetings of the City Council unless excused therefrom by the

Council, except when his removal is under consideration by the Council. He shall

have the privilege of taking part in the discussion of all matters coming before the

Council and shall be entitled to notice of all meetings, regular and special, of the

Council.

D. He shall make investigations into the affairs of the City or any department or

division thereof and shall investigate all complaints in relation to matters

concerning City services and City administration.

E. He shall have the power to appoint and to discharge, subject to rules of the City civil

service, any employee of the City exclusive of employees and officers of the Police

Department and exclusive of regular firefighters employed on a full-time basis, and

as to these excluded employees he shall make his recommendations to the Police and

Fire Commission. Upon discharging any employee, he shall submit to the Council at

the next meeting following such removal a statement concerning the removal and

the reasons therefor.

F. He shall devote his entire time to the discharge of official duties.

G. He shall perform such other duties as may be required of him by the Council

consistent with the City ordinance or the statutes of the State of Illinois.

SECTION 8. OFFICERS NOT TO INTERFERE WITH APPOINTMENTS OR

REMOVALS.

No officer of the City shall dictate the appointment of any person to, or the removal of

any person from office by, the City Manager or by any of his subordinates. Except for the

purpose of inquiry, officers shall deal with the administrative service through the City

Manager, and officers shall not give orders to any subordinates of the City Manager, either

publicly or privately.

SECTION 9. SAVING CLAUSE.

If any section, subsection, or sentence, clause, or phrase of this ordinance is for any

reason held to be invalid, such decision or decisions shall not affect the validity of the

remaining portions of this ordinance. All ordinances of the City prescribing the duties of

heads of departments shall remain in full force and effect except insofar as they conflict

with the provisions of this ordinance, in which case the provisions of this ordinance shall

govern.

BE IT FURTHER ORDAINED by the City Council of the City of __________, Illinois,

that this ordinance shall be in full force and effect from and after its passage, approval, and

publication according to law.