Baldacchino v. Thompson

                                                  Fourth Division
                                                  June 19, 1997








No. 1-95-3184, 1-96-0226, Cons.


CHARLES S. BALDACCHINO; and             )    APPEAL FROM THE 
ROBERT M. SROKA, individually and       )    CIRCUIT COURT OF
on behalf of a majority of the          )    COOK COUNTY.
Electors of the Town of Maine,          )
                                        )
     Plaintiffs-Appellants,             )
                                        )
          v.                            )                        
                                        )
MARK THOMPSON, individually and as      )
Supervisor of the Town of Maine;        )
CAROL TESCHKY, individually and as      )
Trustee of the Town of Maine; ROBERT    )
PROVENZANO, individually and as         )
Trustee of the Town of Maine; PAMELA    )    
ANDERSON, Administrator of the Town of  )    
Maine; and GARY WARNER, individually    )    
and as Town Clerk,                      )    HONORABLE
                                        )    EDWIN M. BERMAN,
     Defendants-Appellees.              )    JUDGE PRESIDING.
     


     PRESIDING JUSTICE WOLFSON delivered the opinion of the

court:

     When a township form of government is in place, who makes
the decisions for the town -- the township board of trustees or
the townspeople?  Members of the Maine Township Board of Trustees
thought they had the right to decide to build an addition to
their town hall.  Some of the town's residents did not think the
Board should make that decision without the consent of the
townspeople.  In accord with the provisions of the Town Code,
these residents gathered at the annual Town meeting and, as
"electors," voted against the addition.  This court must decide
whether the townspeople had the authority to overrule the Board
on this and other matters.
FACTS
     The Town of Maine is organized as a township and, as such, 
is governed by the Illinois Township Code, 60 ILCS 1/1-1 et seq.
(West 1996).  On April 11, 1995, Maine held its annual town
meeting in accord with section 30-5 of the Township Code.  60
ILCS 1/30-5 (West 1996).  At the meeting, a slim majority of the
Townships' electors (Electors) voted in favor of the following
measures:
     (1)  To rescind the prior action of the Board of Trustees
          regarding the construction of an addition to the Town
          Hall and direct the Board to take no further action to
          construct such addition or to incur any further
          expenses therefore, unless approved by a majority of
          the Electors in a binding referendum;
     (2)  To direct the Board to transfer $467,000 from the
          General Town fund (building fund) to the Highway
          Department Reserve Contingency Fund to be utilized for
          flood control, or for tax abatement in the next fiscal
          year;
     (3)  To direct the Board to reimburse Trustee Ebert for
          legal expenses incurred in earlier litigation against
          Town Supervisor Thompson and Town Administrator
          Anderson;
     (4)  To direct the Board to place a cap of $300/month or
          $3,600/year, on expenses to public relations
          consultants and employees;
     (5)  To direct Town Clerk Warner to tape record all town
          meetings open to the public and make copies of the tape
          available within seven (7) days of the meeting;
     (6)  To direct the Board to implement a policy whereby
          members of the public are provided the opportunity to
          speak for a maximum of five (5) minutes at all public
          meetings, without having to register or give prior
          notice of the intention to speak to any Township
          officials; and
     (7)  To direct the Board to limit salary increases for the
          Town Administrator and department heads in the next
          fiscal year to the cost of living.
     At the Board's next regularly-scheduled, bi-monthly meeting,
on April 25, 1995, Trustee Elliot moved that the Board implement
each of the Electors' directives, as listed above.  By a vote of
three to two, the Board voted to table Trustee Elliot's motions. 
In addition, the Town Clerk admitted that he was not tape-
recording the meeting and indicated that he would not comply with
the Electors' directive to tape record future Board meetings. 
The Board also refused to recognize members of the public who
attempted to speak at the meeting without having given prior
notice.
     On May 1, 1995, certain Electors (plaintiffs) filed a
complaint against the Town Clerk, the Town Supervisor, the Town
Administrator and two Town Trustees, individually and in their
official capacities, (collectively referred to as defendants) for
a "Writ of Mandamus and Other Relief."  The plaintiffs said that
they were bringing the action individually and on behalf of a
majority of Electors of the Township of Maine.
     In count I of the complaint, plaintiffs sought to compel the
named town officers to act in accord with the mandates issued by
the majority of the Electors at the April 11, 1995, annual town
meeting.  In count II, plaintiffs alleged that $47,000 had been
paid to an architectural consultant for the Town Hall addition
and that the payment, having been made in direct violation of the
Electors' directive, constituted a breach of fiduciary duty by
the Town officers.  The plaintiffs requested compensatory and
punitive damages.
     In a separate pleading, plaintiffs sought a preliminary
injunction against the Town officers, seeking to enjoin them from
taking any further steps toward the construction of the Town Hall
addition.  Plaintiffs also sought affirmative relief -- a
directive to the Town Clerk to tape record all future Board
meetings.
     On May 25, 1995, defendants responded by filing a motion
seeking dismissal of count I of the complaint and summary
judgment on count II of the complaint.
     On June 1, 1995, plaintiffs filed a motion for summary
judgment as to count I; a motion to strike defendant's Exhibit A
(a purported copy of the "official minutes" of the annual
meeting); and a response to defendants' motion for summary
judgment.
     On June 8, 1995, the circuit court denied the request for
preliminary injunction.  On August 7, 1995, the court issued the
following rulings: plaintiffs' motion for summary judgment on
count I was denied; defendants' motion to dismiss with prejudice
count I of plaintiffs' complaint was granted; and defendants were
granted summary judgment as to count II of the complaint.  The
trial court added Rule 304(a) language to the order.
     A notice of appeal was filed from this August 7, 1995, order
on September 5, 1995.  Appeal was brought by two of the three
plaintiffs in the action below.  They ask this court to reverse
the trial court's determination and to issue the writ of mandamus
to compel the named members of the Town Board to obey the
specific orders and directives issued to them by the electors at
the April 11, 1995, annual meeting.
PRELIMINARY MATTERS
     Before addressing the merits of any issues this appeal
raises, there are two preliminary matters to consider.
     First, this court must consider defendants' challenge to the
appellants' standing to pursue this appeal.  Defendants point out
that one of the plaintiffs in the trial court (Danette Matyas)
failed to join in the appeal.  Defendants claim, without citation
to authority, that because Matyas joined in the action in the
trial court as a representative of the Electors of the Town of
Maine, her failure to join in the appeal gives defendants a final
judgment as to the Electors, which negates the other town
representatives' ability to proceed.
     Appellants deny that Matyas' failure to join in the appeal
robs them of standing to bring the appeal.  Because the initial
complaint for mandamus identified each of the plaintiffs as
residents and domicillaries of the Town of Maine, properly within
the class of persons defined as "electors" by the Town Code,
appellants say, each plaintiff had the independent capacity to
bring suit and appeal from the adverse ruling.  We agree.
     There is no basis for adopting the defendants' position. 
Basic principles of standing support a determination that each of
the named plaintiffs had the independent capacity to sue (see,
for example, Egidi v. Town of Libertyville, 218 Ill. App. 3d 596,
578 N.E.2d 1300 (1991)), and, thus, pursue this appeal.  
     Second, the parties to this appeal dispute the standard of
review to be applied by this court.  Appellants contend that our
review is de novo since the trial court ruled on matters of law
when it dismissed with prejudice count I seeking a writ of
mandamus and granted summary judgment as to count II for damages. 
Defendants contend that, because the grant of a writ of mandamus
is within the discretion of the trial court, we should review the
trial court's rulings for an abuse of discretion.
     We have reviewed the case law concerning mandamus actions
and have determined that mandamus is an extraordinary remedy
awarded in the exercise of sound judicial discretion according to
legal principles.  People ex rel. Kula v. O'Connell, 394 Ill. 409, 68 N.E.2d 758 (1946).  Mandamus is proper when one seeks to
compel a public officer to perform duties which are purely
ministerial in nature and which require no exercise of judgment
on the part of the public officer.  People ex rel. Pyrzynski v.
Daley, 34 Ill. App. 3d 1077, 1080, 341 N.E.2d 24 (1975). 
Mandamus is available only when the plaintiff has set forth every
material fact needed to prove that he has a clear, legal right
and is entitled to the performance of the act he seeks to compel. 
Vanko v. Sheahan, 278 Ill. App. 3d 302, 303, 662 N.E.2d 512
(1996).  The decision to grant or deny a writ of mandamus should
be reversed on appeal only when the decision is against the
manifest weight of the evidence.  Taylor v. Wentz, 15 Ill. 2d 83,
153 N.E.2d 812 (1958);  Machinis v. Board of Election
Commissioners, 164 Ill. App. 3d 763, 518 N.E.2d 270 (1987). 
Since plaintiffs sought a writ of mandamus, this is the standard
by which this court reviews the appeal.
OPINION
     When the trial court granted defendants' motion to dismiss
the complaint for a writ of mandamus and awarded defendants
summary judgment on count II for damages, the court expressed an
opinion that the township form of government, where both the
towns people (electors) and the elected officials share
authority, was outmoded.  In denying the writ of mandamus, the
court ruled that Evers v. Collinsville Township, 269 Ill. App. 3d
1069, 647 N.E.2d 1058 (1995), provided a basis for finding that a
township board, not the electors, has the authority to act on
behalf of the town with regard to the construction of a town hall
and that the electors' only redress on the matter is "at the
ballot box."  The court failed, however, to analyze the Town Code
to determine what authority, if any, the electors have concerning
the town hall.  
     Though we find that the denial of the writ of mandamus
should be affirmed, we do not adopt the trial court's reasoning.
     The Town Code clearly provides for a form of government in
which the town's legislative powers are not exclusively reserved
for the elected town officials who comprise the Township Board,
but are shared with the "electors," the townspeople who are
present and vote at the annual town meeting.  See Opinion Letter,
Office of the Attorney General, State of Illinois, File No. 96-
019, March 7, 1996.
     The distribution of power between these two entities (the
town board and the electors) is defined, for the most part, by
the Town Code.  In general, the powers allocated to the electors
are enumerated in Article 30, while the powers of the town board,
as a whole, and of the individual town officers, can be found at
various locations throughout the Code.
     Still, as with any statute, a problem arises where a
particular matter does not fall neatly into any one pigeon hole. 
When the Town Code does not explicitly address a particular topic
or make an action the responsibility of one particular officer or
entity, conflict arises.  Then the Town Code, like any statute,
must be interpreted to determine whether actions taken by an
entity exceeded the lawful authority granted to that entity.
     In the present case, what emerges from the record is a sense
that certain townspeople were disgruntled over the Town Board's
apparently unilateral decision to construct an addition to the
town hall.  These disgruntled townspeople appeared at the annual
town meeting to assert their authority to prohibit the Board from
continuing with its plans to construct the addition, at least
until such time as the townspeople could vote in a referendum on
whether the addition was necessary.
     These townspeople voted at the annual town meeting to stop
the construction plans.  A directive was issued by the electors
advising the Board that it must cease all acts in furtherance of
the new construction.  The second directive, commanding the Board
to transfer the funds allocated for the construction to another
account, was an attempt to remove the funds necessary for the
construction from the Board's control.
     The question that must be answered is whether the decision
to construct an addition to the town hall falls within the scope
of authority afforded the Board or the electors.  As both sides'
briefs make clear, the Town Code provides no clear and distinct
answer to this question.
     The appellants claim the right to make determinations
regarding an addition to the town hall by virtue of their
authority under section 30-50(a), which states:
     "Purchase and use of Property.  (a) The electors may
     make all orders for the purchase, sale, conveyance,
     regulation, or use of the township's corporate property
     (including the direct sale of single township road
     district property) that may be conducive to the
     interests of its inhabitants, including the lease, for
     up to 10 years at fair market value, of corporate
     property for which no use or need during the lease
     period is anticipated at the time of leasing."
They claim that a referendum on the issue should have been held
pursuant to section 30-205.  This section, entitled "Advisory
referenda" states:
     "By a vote of the majority of electors present at a town
     meeting, the electors may authorize that an advisory
     question of public policy be placed on the ballot at the
     next regularly scheduled election in the township.  The
     township board shall certify the question to the proper
     election officials, who shall submit the question in
     accordance with the general election law."
     The electors, say appellants, had the right to transfer
funds pursuant to section 245-5 of the Code, which provides that
"the legal voters of a township at the annual township meeting...
may, by a written resolution by a majority vote of the legal
voters present and voting on the resolution, transfer from one or
more township funds to any other township fund..."
     Defendants do not explain why these provisions do not apply
to the construction of the town hall.  They merely contend that
because the provisions do not explicitly mention the town hall,
the electors' right to govern this matter is "unclear." 
Defendants also claim that the Board has the right to decide to
construct the addition pursuant to its general grant of authority
to expend funds for "ordinary and necessary capital expenditures
authorized by law."
     Towns have only the powers granted to them by law (Ill.
Const. of 1970, art. VII, sec. 8), i.e., the corporate capacity
to exercise the powers granted to it, or necessarily implied, and
no others (60 ILCS 1/85-10(a) (West 1996).)  The Town Code
clearly provides that a "town" may construct a town hall.  See 60
ILCS 1/85-10(a) (West 1996).  But what entity (electors or board)
has the authority over such construction, is not stated.  The
Code provides in section 140-5(a):
     "Whenever it is desired to build, purchase, or lease, for a
     longer period than 5 years, a township hall, a multipurpose
     senior center, or a combined township hall and multi-purpose
     senior center in any township, at least 25 electors of the
     township may, before the time of giving notice of the annual
     township meeting, file with the township clerk a petition in
     writing that the proposition of building, purchasing, or
     leasing a township hall, a multi-purpose senior center, or a
     combined township hall and multi-purpose senior center and
     issuing bonds for the building, purchase, or lease be
     submitted to the voters of the township at the next ensuing
     general election."
     Though this provision seems to suggest that it is the
electors who have the power to make decisions regarding the
construction of a town hall, defendants say this provision does
not apply in this case because no bond was being sought.
     Defendants also cite Evers v. Collinsville Township, 269
Ill. App. 3d 1069, 647 N.E.2d 1058 (1995), as authority in
support of their claim that it is within the Board's power to
make decisions regarding the construction of a town hall.
     We must acknowledge that the Evers court does make the
explicit finding that "the town electors' enumerated powers do
not include the authority to construct a township hall or
township building."  The Evers court then goes on to state that
"the town supervisor acting in his capacity of chief executive
officer of the township (60 ILCS 5/11-3(a) (West 1992)) had the
specific authority to contract for the construction of a town
hall.  60 ILCS 5/4-2(c) (West 1992), now 60 ILCS 1/85-10 (West
1996)."
     These statements, however, are dicta.  In Evers, an
individual citizen, not the majority of the electors at an annual
town meeting, was challenging the Town Board's authority to
contract for the construction of a town hall.  The Evers court
was not required to decide between the two corporate entities
(electors and board) when deciding whether the Board had the
right to make decisions regarding the construction of the town
hall.  The Evers court makes passing reference to the electors'
enumerated powers, but does not address, specifically, the
electors' power over corporate property in section 30-50(a).
     In our case, the question squarely before the court is
whether the Town Code, by implication, gives the electors any
greater authority over the decision to construct a town hall than
it does to the Town Board.  Though we acknowledge that the Town
Code nowhere provides, explicitly, who has the authority to make
the decision to construct a town hall, a close reading of the
Town Code tends to supports the electors' position that the
construction of a town hall is an area in which the Town Board
has no independent power, but must act only upon direction of the
electors.
     Section 30-50(a) gives the electors, not the Board, the
power to regulate the "use" of corporate property.   When a
township desires to build a town hall and must borrow money and
issue a bond for that purpose, section 140-5 requires electors to
present the matter at the annual meeting and issue a referendum
on the bond issue.  These provisions suggest that the electors,
not the Board, must determine whether a town hall addition should
be built.  If the Board finds the Town Code too cumbersome or
overly laden with grass roots democracy, its remedy is in the
legislature, not in the courts.
     Having reached this determination, it does not follow,
however, that a writ of mandamus should have been granted.  As
stated earlier, mandamus is proper when one seeks to compel a
public officer to perform duties which are purely ministerial in
nature and which require no exercise of judgment on the part of
the public officer.  People ex rel. Pyrzynski v. Daley, 34 Ill.
App. 3d 1077, 1080, 341 N.E.2d 24 (1975).  A clear, legal right
to compel the performance of the act must be evident.  Vanko v.
Sheahan, 278 Ill. App. 3d 302, 303, 662 N.E.2d 512 (1996).  That
was not the case here.  Whether the town electors or the Town
Board had the authority to make decisions regarding the
construction of an addition to the town hall is not clearly
evident from the Code.  Arguments can be made for both sides.  It
is a matter of interpretation.  Though we would have resolved the
matter differently than the trial court, we cannot say that the
trial court abused its discretion by refusing to issue a writ of
mandamus.
     In addition, we note that the annual meeting took place in
April 1995 and the motion for preliminary injunction was denied
with no appeal taken.  The Town Hall addition has been completed. 
We cannot provide effective relief from the trial court's denial
of the writ of mandamus on the directives regarding the town hall
construction and the funds appropriated for that purpose. 
Matters pertaining to the construction and the transfer of funds
are moot.  See Owen v. Board of Education, 261 Ill. App. 3d 298,
300, 632 N.E.2d 1073 (1994) (case is moot where events occur
which render it impossible for the reviewing court to grant
effective relief to either party).  
     Regarding the three other directives -- to reimburse
Elliot's legal expenses, to cap expenditures for public relations
consultants, and the tape recording of town meetings -- these
directives involve matters where the Town Code provides no
explicit right or authority to the electors.  The electors
allege, however, that when they are gathered at an annual town
meeting, they share general corporate powers with the Board.  It
is by virtue of these alleged shared corporate powers that they
claim authority to issue these directives.
     In an opinion letter filed by the Office of the Attorney
General for the State of Illinois on March 7, 1996, File No. 96-
019, on the issue of the powers of township electors, the
Attorney General states:
     "It is well established that townships, like all other
     non-home-rule units of local government, have no
     inherent powers, but only those granted to them by the
     constitution or by statute.  Diversified Computer
     Service v. Town of York, 104 Ill. App. 3d 852, 857
     (1992).  Article VII, Section 8 of the Illinois
     Constitution of 1970 provides that townships shall have
     only the powers granted to them by law.  Clearly, the
     extent of the powers which may be exercised by township
     electors, and the apportionment of powers between the
     electors and the township board, is a matter of
     legislative prerogative, (see Hill v. Butler, 107 Ill.
     App. 3d 721, 725-26 (1982)), and is necessarily defined
     by the statutes which constitute grants of such powers. 
     The fact that electors have been delegated the right to
     act directly upon specified township matters, however,
     does not mean that the electors have the plenary power
     to act upon any matter which may in some way relate to
     the township, or to exercise those powers which the
     General Assembly has granted to the township board or
     other township officers."
     We agree with this opinion letter.  We hold that the
electors' powers and authority to act must be grounded upon some
specific statutory delegation of authority.  For the electors to
have control over any matter, they must be able to cite some
basis in the Town Code for finding that the authority was granted
to the electors to act.
     Also, electors may not exercise powers which are
specifically delegated to the Board or other town officers.  The
remaining three directives pertain to matters that are not within
the electors' scope of authority.  The payment of Elliot's legal
fees and the amount to be appropriated for public relations
consulting are budgetary matters.  Since the Board is
commissioned with the duty to comply with the Illinois Municipal
Budget Law (section 80-60 of the Code), such matters would be
within the Board's power to determine.
     The town clerk is given the duty of recording the
proceedings of all board meetings in section 80-45 of the Code. 
The manner in which this obligation is carried out should be left
to his discretion.
     With respect to count II, we agree with defendants that
summary judgment was properly granted.  Even if the electors had
the authority to regulate the construction of the town hall
addition, the directive issued by the electors was prospective in
nature.  The electors directed the board to cease taking any
further action toward the completion of the town hall
construction.  An affidavit submitted by the defendants indicated
that the payment to the architect was for work that had already
been completed at the time the directive was issued.  Thus, the
payment was not in violation of the electors' directive and no
damages should have been awarded.  The trial court did not err in
granting summary judgment to defendants on this count.
                          CONCLUSION
     In summary, though the electors may have authority to decide
matters pertaining to the construction of an addition to the town
hall and the power to authorize the transfer of funds, that right
was not so clear that the trial court was undoubtedly wrong when
it refused to issue a writ of mandamus on these two directives. 
Furthermore, relief is no longer available and the matter is now
moot.
     With respect to the other directives, appellants were unable
to show a clear, legal right to compel the Board to act as they
directed.  The directives pertained to matters which were not
within the electors' scope of authority to address.
     The trial court's orders dismissing count I of the complaint
and granting summary judgment as to count II, is affirmed.
     AFFIRMED.
     McNAMARA and CERDA, JJ., concur.