[My Commentary] So, if we look at it in these terms, we cold 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 – 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 1½ 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 1½ 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 – 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 – 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 – 1.72), through a strong mayor (see §§1.73 – 1.79), or through a

manager or administrator (see §§1.53 – 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 – 215 (7th Cir. 1995).

A. Special Charter and General Law Forms

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 – 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

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