McLean v. City of East St. Louis

• Decision Date: 17 October 1906
• Citation: 78 N.E. 815,222 Ill. 510
• Parties: McLEAN v. CITY OF EAST ST. LOUIS.
• Court: Illinois Supreme Court

222 Ill. 510

78 N.E. 815

McLEAN

v.CITY OF EAST ST. LOUIS.

Supreme Court of Illinois.

Oct. 17, 1906.

Appeal from City Court of East St. Louis; J. E. Dunnegan, Judge.

Application by the city of East St. Louis for the confirmation of a special assessment for the cost of a sewerage pumping station and sewer system to which N. C. McLean filed objections. From a judgment in favor of complainant, objector appeals. Reversed and remanded.

C. E. Pope (Forman & Whitnel, Dan McGlynn, E. R. Davis, Charles B. Carroll, H. L. Browning, N. C. Lyrla, L. H. Hite, M. D. Baker, and J. J. Rafter, of counsel), for appellant.

Freels & Joyce, M. Millard, and Keefe & Sullivan, for appellee.

CARTWRIGHT, J.

Upon the application of the city of East St. Louis, appellee, for the confirmation of a special assessment levied to defray the cost of a sewerage pumping station and a system of sewers connected therewith, N. C. McLean, appellant, whose property was assessed, filed an objection that the ordinance providing for the improvement was not legally passed by the city council, and was therefore void and of no effect. The court overruled the objection, and, appellant waiving further controversy as to questions triable by jury, the court entered judgment confirming the assessment.

Article 3 of the act for the incorporation of cities and villages relates to the city council. Section 1 (Hurd's Rev. St. 1905, c. 24, § 29) provides that the city council shall consist of the mayor and aldermen; section 2 (section 30) that a city shall be divided into wards and two aldermen shall be elected from each ward; section 3 (section 31) that aldermen shall hold their office for a term of two years and until their successors are elected and qualified; section 4 (section 32) that if any vacancy shall occur by death, resignation, removal, or otherwise, such vacancy shall be filled by election; and section 13 (section 41) is as follows: ‘The yeas and nays shall be taken upon the passage of all ordinances and on all propositions to create any liability against the city, or for the expenditure or appropriation of its money, and in all other cases at the request of any member, which shall be entered on the journal of its proceedings; and the concurrence of a majority of all the members elected in the city council shall be necessary to the passage of any such ordinance or proposition: Provided, it shall require two-thirds of all the aldermen elect to sell any city or school property.’

The city of East St. Louis is divided into seven wards, and the city council consists of the mayor and 14 aldermen. Charles B. Goedde, an alderman elected in the sixth ward, qualified as city treasurer of said city and acted as such from May 1, 1905. He presented his resignation to the city council, and a resolution was passed accepting it. No election was called or held to elect his successor, and, more than five months having elapsed after he ceased to act as alderman, the city council met on October 16, 1905. There were present at that meeting 12 aldermen, and the ordinance in question was placed upon its passage. Seven aldermen voted ‘aye’ and five voted ‘nay,’ whereupon it was declared passed and the next day it was approved by the mayor. Appellant contends that the ordinance did not receive a majority of the votes of all the members elected in the city council, within the meaning of said section 13, and appellee contends that all the section requires is an affirmative vote of a majority of the aldermen elected who remain qualified to act as aldermen. Fourteen aldermen were elected under the act providing that they should hold their office for the term of two years, and until their successors were elected and qualified, but appellee's position is that there was a vacancy which had not been filled by election, and therefore there were only 13 aldermen elected and composing the city council when the ordinance was voted upon.

Some of the counsel for appellee argue that section 13 relates only to ordinances and propositions creating a liability against a city or providing for the expenditure or appropriation of its money, and that all other ordinances may be passed by a majority of a quorum. They say that it is not unusual for courts, in the construction of statutes, to substitute one word for another where the plain meaning of the statute will justify it, and that, by eliminating some words and substituting others, this section will express what they think was the intention of the Legislature. It is the rule that, where the intention of the Legislature is ascertained with reasonable certainty and it appears that words have been used inconsistent with such intention, a word erroneously used for another may be eliminated and the proper word substituted. Where the context affords the means of correcting a mistake in the use of language, the correction may be made for the purpose of giving effect to the intention plainly manifested in the act as a whole. But we do not agree with the theory that the Legislature, in this instance, intended to limit the requirement of a majority vote to ordinances creating a liability or appropriating money. On our opinion, to make the changes suggested would be merely juggling with the words of the statute to give it a different meaning from...