People ex rel. Daesch v. Mayor of City of Belleville

• Decision Date: 19 May 1961
• Docket Number: No. 36197,36197
• Citation: 22 Ill.2d 226,174 N.E.2d 678
• Parties: PEOPLE ex rel. Donald DAESCH et al., Appellees, v. MAYOR OF CITY OF BELLEVILLE et al., Appellants.
• Court: Illinois Supreme Court

Page 678

174 N.E.2d 678

22 Ill.2d 226

PEOPLE ex rel. Donald DAESCH et al., Appellees, v. MAYOR OF CITY OF BELLEVILLE et al., Appellants.

No. 36197.

Supreme Court of Illinois.

May 19, 1961.

Eugene H. Widman, City Attorney, Belleville, for appellants.

Melvin W. Trotier, East St. Louis, for appellees.

SOLFISBURG, Justice.

Relator, who is a member of the Belleville Fire Department sought and obtained a writ of mandamus from the circuit court of St. Clair County requiring the defendants, members of the city council of the city of Belleville, to adopt an ordinance providing for an election of officers in the fire department of the city of Belleville, and also directing the city treasurer to pay to the fire department treasurer the money collected from the levy of a tax on gross receipts of fire insurance sold within the city, pursuant to sections 38-1, 38-2 of the Revised Cities and Villages Act. (Ill.Rev.Stat.1959, chap. 24, pars. 38-1, 38-2). Defendants appeal from the judgment ordering the issuance of the writ of mandamus. The constitutionality of a statute is involved and accordingly we assume jurisdiction.

The statutes involved provide as follows:

'Section 38-1. In each municipality or fire protection district, whether incorporated under a general or special law, which has a fire department established and maintained by municipal or fire protection district ordinances, every corporation, company, and association which is not incorporated under the laws of this State and which is engaged in effecting fire insurance in the municipality or fire protection district, shall pay to the treasurer of the municipality or fire protection district for the maintenance, use, and benefit of the fire department thereof, a sum not exceeding two percent of the gross receipts received from fire insurance upon property * * * within the municipality or district * * *'

'Section 38-2. The corporate authorities of any municipality containing less than 50,000 inhabitants which has an organized fire department shall pass an ordinance providing for the election of officers of that department, by the members of the department. These officers shall include a treasurer, and they shall make all needful rules and regulations with respect to the department and the management of the money to be paid to the treasurer. In all such municipalities the municipal treasurer shall pay the sums received from the insurance companies specified in Section 38-1 to the treasurer of the fire department of the municipality in which it is collected. The treasurer of that fire department shall give a sufficient bond to the municipality in which the fire department is organized. This bond shall be approved by the mayor or president, as the case may be, conditioned upon the faithful performance by the treasurer of his duties under the ordinance and the rules and regulations provided for in this section. The treasurer of the fire department shall receive the money so paid and shall pay out the money upon the order of the fire department for the maintenance, use and benefit of the department.

'However, in any municipality where a fireman's pension fund is or may be established under other laws of this State, all of the money paid to the municipal treasurer as provided in Section 38-1 may be set apart and appropriated by the municipality to the fund for the pensioning of disabled and auperannuated members of the fire department, and of the widows and orphans of deceased members of the fire department.'

Since 1925 the city of Belleville has had a department of the municipal government known as the fire department, which was established by ordinance which provides for a fire warden who shall be ex officio chief of the fire department, to be appointed by the mayor. They also have an ordinance licensing foreign fire insurance companies which provides that such companies shall pay to the city treasurer the sum of two per centum of the gross receipts of the premiums received by such company for business effected for fire insurance within the city. A fireman's pension fund has also been established in the city of Belleville.

The fire insurance companies have paid their two per centum tax money to the city treasurer and the city treasurer testified that the money collected heretofore has been kept in a separate account and used solely for the maintenance, use and benefit of the fire department, by order and approval of the city council. The balance in the fund on June 30, 1960, was $58,321.62.

The relator contends that the city council had a mandatory duty to pass an ordinance providing for the election of officers within the fire department pursuant to statute, and to pay over monies received from foreign fire insurance companies. Defendants however insist that section 38-2 is void as an unconstitutional delegation of legislative power, and that mandamus will not lie to compel the city council to act in a matter of discretion.

Although similar statutory provisions have been in effect since 1895 (Laws of 1895, p. 104, secs. 1-2), their validity has not heretofore been questioned in this court. In essence the statute purports to compel a municipality of less than 50,000 having an organized fire department, to provide for the election of officers of that department. The statute then delegates to these elected officers the power to make 'all needful rules and regulations with respect to the department and...