{ "id": 3091934, "name": "RONALD PROSSER, Appellee, v. THE VILLAGE OF FOX LAKE et al., Appellants", "name_abbreviation": "Prosser v. Village of Fox Lake", "decision_date": "1982-06-18", "docket_number": "No. 54922", "first_page": "389", "last_page": "404", "citations": [ { "type": "official", "cite": "91 Ill. 2d 389" } ], "court": { "name_abbreviation": "Ill.", "id": 8772, "name": "Illinois Supreme Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "63 A.L.R.3d 1072", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "weight": 2, "year": 1975, "pin_cites": [ { "page": "1083" }, { "page": "1083" } ], "opinion_index": 0 }, { "cite": "47 P. 1004", "category": "reporters:state_regional", "reporter": "P.", "opinion_index": 0 }, { "cite": "19 Mont. 239", "category": "reporters:state", "reporter": "Mont.", "case_ids": [ 4371296 ], "opinion_index": 0, "case_paths": [ "/mont/19/0239-01" ] }, { "cite": "396 Ill. 466", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2467626 ], "opinion_index": 0, "case_paths": [ "/ill/396/0466-01" ] }, { "cite": "113 Ill. 137", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2864436 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/ill/113/0137-01" ] }, { "cite": "94 Ill. App. 3d 78", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3129900 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/94/0078-01" ] }, { "cite": "340 N.Y.S.2d 513", "category": "reporters:state", "reporter": "N.Y.S.2d", "weight": 2, "year": 1954, "opinion_index": 1 }, { "cite": "40 App. Div. 2d 385", "category": "reporters:state", "reporter": "A.D.2d", "case_ids": [ 3274955 ], "weight": 2, "year": 1954, "opinion_index": 1, "case_paths": [ "/ad2d/40/0385-01" ] }, { "cite": "240 So.2d 700", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 9788721 ], "year": 1973, "opinion_index": 1, "case_paths": [ "/so2d/240/0700-01" ] }, { "cite": "13 N.W.2d 467", "category": "reporters:state_regional", "reporter": "N.W.2d", "year": 1970, "opinion_index": 1 }, { "cite": "216 Minn. 500", "category": "reporters:state", "reporter": "Minn.", "case_ids": [ 258167 ], "year": 1970, "opinion_index": 1, "case_paths": [ "/minn/216/0500-01" ] }, { "cite": "114 P. 748", "category": "reporters:state_regional", "reporter": "P.", "pin_cites": [ { "page": "752" } ], "opinion_index": 1 }, { "cite": "5 Okla. Crim. 325", "category": "reporters:state", "reporter": "Okla. Crim.", "case_ids": [ 8743528 ], "pin_cites": [ { "page": "333" } ], "opinion_index": 1, "case_paths": [ "/okla-crim/5/0325-01" ] }, { "cite": "136 Vt. 506", "category": "reporters:state", "reporter": "Vt.", "case_ids": [ 8544867 ], "weight": 2, "year": 1911, "opinion_index": 1, "case_paths": [ "/vt/136/0506-01" ] }, { "cite": "9 N.W. 554", "category": "reporters:state_regional", "reporter": "N.W.", "year": 1978, "opinion_index": 1 }, { "cite": "11 Neb. 419", "category": "reporters:state", "reporter": "Neb.", "case_ids": [ 4398214 ], "year": 1978, "opinion_index": 1, "case_paths": [ "/neb/11/0419-01" ] }, { "cite": "219 S.W. 311", "category": "reporters:state_regional", "reporter": "S.W.", "pin_cites": [ { "page": "312" } ], "opinion_index": 1 }, { "cite": "142 Ark. 293", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1590507 ], "pin_cites": [ { "page": "297" } ], "opinion_index": 1, "case_paths": [ "/ark/142/0293-01" ] }, { "cite": "89 A.2d 725", "category": "reporters:state_regional", "reporter": "A.2d", "pin_cites": [ { "page": "727" } ], "opinion_index": 1 }, { "cite": "20 N.J. Super. 276", "category": "reporters:state", "reporter": "N.J. Super.", "case_ids": [ 452043 ], "pin_cites": [ { "page": "279" } ], "opinion_index": 1, "case_paths": [ "/nj-super/20/0276-01" ] }, { "cite": "231 Or. 494", "category": "reporters:state", "reporter": "Or.", "case_ids": [ 4873528 ], "weight": 6, "pin_cites": [ { "page": "500" }, { "page": "660" }, { "page": "500-01" }, { "page": "660" } ], "opinion_index": 1, "case_paths": [ "/or/231/0494-01" ] }, { "cite": "129 N.Y.S.2d 403", "category": "reporters:state", "reporter": "N.Y.S.2d", "weight": 2, "year": 1962, "opinion_index": 1 }, { "cite": "201 Ark. 370", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8720663 ], "weight": 4, "year": 1954, "opinion_index": 1, "case_paths": [ "/ark/201/0370-01" ] }, { "cite": "184 Ala. 36", "category": "reporters:state", "reporter": "Ala.", "case_ids": [ 5685499 ], "weight": 2, "year": 1940, "opinion_index": 1, "case_paths": [ "/ala/184/0036-01" ] }, { "cite": "32 S.W.2d 828", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 10281474 ], "year": 1913, "opinion_index": 1, "case_paths": [ "/sw2d/32/0828-01" ] }, { "cite": "193 Okla. 444", "category": "reporters:state", "reporter": "Okla.", "case_ids": [ 1622226 ], "weight": 4, "year": 1930, "opinion_index": 1, "case_paths": [ "/okla/193/0444-01" ] }, { "cite": "244 N.W.2d 110", "category": "reporters:state_regional", "reporter": "N.W.2d", "case_ids": [ 899280 ], "year": 1944, "opinion_index": 1, "case_paths": [ "/minn/309/0139-01" ] }, { "cite": "77 N.W. 841", "category": "reporters:state_regional", "reporter": "N.W.", "year": 1976, "opinion_index": 1 }, { "cite": "107 Iowa 177", "category": "reporters:state", "reporter": "Iowa", "case_ids": [ 2111155 ], "year": 1976, "opinion_index": 1, "case_paths": [ "/iowa/107/0177-01" ] }, { "cite": "345 So.2d 293", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 9683515 ], "year": 1899, "opinion_index": 1, "case_paths": [ "/so2d/345/0293-01" ] }, { "cite": "182 N.E.2d 552", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 5, "year": 1977, "pin_cites": [ { "page": "556" } ], "opinion_index": 1 }, { "cite": "173 Ohio St. 338", "category": "reporters:state", "reporter": "Ohio St.", "case_ids": [ 1750143 ], "weight": 5, "year": 1977, "pin_cites": [ { "page": "344" } ], "opinion_index": 1, "case_paths": [ "/ohio-st/173/0338-01" ] }, { "cite": "154 N.E.2d 14", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 1 }, { "cite": "106 Ohio App. 191", "category": "reporters:state", "reporter": "Ohio App.", "case_ids": [ 1432840 ], "opinion_index": 1, "case_paths": [ "/ohio-app/106/0191-01" ] }, { "cite": "211 N.W.2d 399", "category": "reporters:state_regional", "reporter": "N.W.2d", "case_ids": [ 10762893 ], "weight": 2, "pin_cites": [ { "page": "404" } ], "opinion_index": 1, "case_paths": [ "/nw2d/211/0399-01" ] }, { "cite": "63 A.L.R.3d 1072", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "year": 1975, "opinion_index": 1 }, { "cite": "47 P. 1004", "category": "reporters:state_regional", "reporter": "P.", "opinion_index": 1 }, { "cite": "19 Mont. 239", "category": "reporters:state", "reporter": "Mont.", "case_ids": [ 4371296 ], "opinion_index": 1, "case_paths": [ "/mont/19/0239-01" ] }, { "cite": "113 Ill. 137", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2864436 ], "opinion_index": 1, "case_paths": [ "/ill/113/0137-01" ] } ], "analysis": { "cardinality": 1035, "char_count": 24873, "ocr_confidence": 0.737, "pagerank": { "raw": 3.186241233336425e-07, "percentile": 0.8648558275019123 }, "sha256": "2997833d6033f5ee8c4ccd32fa8f1269de840cfab6b6cc30471fecb3d8d0a34c", "simhash": "1:8f67b111a5a73e5b", "word_count": 4275 }, "last_updated": "2023-07-14T20:04:00.855642+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "RONALD PROSSER, Appellee, v. THE VILLAGE OF FOX LAKE et al., Appellants." ], "opinions": [ { "text": "JUSTICE WARD\ndelivered the opinion of the court:\nThe plaintiff, Ronald Prosser, a trustee of the village of Fox Lake, brought an action against the village and several of the trustees and officers of the village for a permanent injunction against the operation of two ordinances that he claimed were passed in violation of section 3 \u2014 11\u201417 of the Illinois Municipal Code (Ill. Rev. Stat. 1979, ch. 24, par. 3 \u2014 11\u201417). Section 3 \u2014 11\u201417 requires \u201cthe concurrence of a majority of all members then holding office\u201d on a village\u2019s board of trustees for the passage of an ordinance. The issue for our review is whether the failure of an elected trustee, who serves also as the acting village president, to vote on a proposed ordinance during a meeting of the trustees at which he was present constitutes concurrence in the action taken by the majority of those voting.\nOrdinance No. 79 \u2014 5 established the office of village president as a full-time position. Ordinance No. 79 \u2014 6 set the annual salary of the village president at $22,000 and fixed the compensation of village trustees at $75 for each regular meeting attended and $50 for each special meeting attended. At a meeting of the village\u2019s board of trustees on April 16, 1979, roll-call votes were taken on the proposed ordinances. Five of the village\u2019s six trustees, including the acting president, were present. The recorded minutes of the meeting show that trustees Kiesgen, Berdnick, and Krueger voted \u201caye\u201d on each proposal; trustee Misiek voted \u201cnay\u201d on each; trustee Prosser was absent; and trustee Hamm, who was the acting village president, did not vote. The record shows that Hamm did not vote on the advice of the village attorney that his vote was not necessary for passage. Both ordinances were designated \u201capproved,\u201d signed by Hamm as acting president, attested to by the village clerk, and published within the 30-day period prescribed by section 1 \u2014 2\u20144 of the Illinois Municipal Code (Ill. Rev. Stat. 1979, ch. 24, par. 1\u20142\u20144).\nThe plaintiff sought to enjoin enforcement of the ordinances on the ground that the three \u201caye\u201d votes did not constitute \u201cthe concurrence of a majority\u201d of the six board members. (Trustee Hamm was legally qualified to serve as acting village president, but under section 3\u201411\u201414 of the Illinois Municipal Code (Ill. Rev. Stat. 1979, ch. 24, par. 3\u201411\u201414) he was prohibited from voting in both of his capacities, i.e., as trustee and as acting president.) The plaintiff and the defendants filed motions for summary judgment. The circuit court of Lake County, interpreting the acting president\u2019s signing of the ordinances as a \u201cconcurrence\u201d within the meaning of section 3 \u2014 11\u201417, entered summary judgment in favor of the defendants. The appellate court, with one justice dissenting, reversed and entered summary judgment in favor of the plaintiff (94 Ill. App. 3d 78). We granted the defendants\u2019 petition for leave to appeal. 73 Ill. 2d R. 315.\nWe would note that many of the provisions of the Illinois Municipal Code make reference to \u201ccity council\u201d and \u201cmayor.\u201d Those provisions are applicable also to village government, since section 3 \u2014 12\u20145 (Ill. Rev. Stat. 1979, ch. 24, par. 3\u201412\u20145) provides that a village\u2019s board of trustees, consisting of the president and the trustees, \u201cshall pass ordinances, resolutions, and motions in the same manner as a city council.\u201d See also Ill. Rev. Stat. 1979, ch. 24, pars. 3-12-2, 3-12-3.\nThough the legislative body of a municipality may determine its own rules of procedure in the adoption of ordinances (Ill. Rev. Stat. 1979, ch. 24, par. 3\u201411\u201411), the record does not show that the village of Fox Lake had done so. The proceeding here was governed by the pertinent statutory provisions.\nSection 3 \u2014 11\u201417 states that \u201c[t]he yeas and nays shall be taken upon the question of the passage of the designated ordinances, resolutions, or motions and recorded in the journal of the city council.\u201d (Ill. Rev. Stat. 1979, ch. 24, par. 3\u201411\u201417.) The statute provides for the taking of only two types of votes \u2014 \u201cyeas\u201d and \u201cnays.\u201d Thus, an attempt to vote other than \u201cyea\u201d (\u201caye\u201d) or \u201cnay,\u201d for example \u201cabstain\u201d or \u201cpresent,\u201d is not deemed to be a vote. See Launtz v. People ex rel. Sullivan (1885), 113 Ill. 137.\nIf a quorum is present, municipal legislators cannot avoid their voting responsibilities by refusing to vote when present at a meeting. (See Launtz v. People ex rel. Sullivan (1885), 113 Ill. 137; see also People ex rel. Anderson v. Chicago & North Western Ry. Co. (1947), 396 Ill. 466.) A legal significance or effect must be given to each failure to vote by a municipal legislator who is present at a board meeting in order to prevent frustration or abuse of the legislative process. (State ex rel. Young v. Yates (1897), 19 Mont. 239, 47 P. 1004.) He should not be allowed to have his physical presence counted toward the constitution of a quorum and at the same time be allowed to deny, in effect, his official presence by a failure to vote. Thus, a municipal legislator\u2019s failure to vote either \u201cyea\u201d or \u201cnay\u201d on a proposed ordinance must be interpreted to have the same effect as either a \u201cyea\u201d or a \u201cnay\u201d vote.\nLauntz v. People ex rel. Sullivan (1885), 113 Ill. 137, involved a city council\u2019s vote on a motion to approve the city treasurer\u2019s bond. Four aldermen voted in favor of the motion and the remaining four refused to vote. The mayor also voted in favor of the motion and declared that the motion had carried. This court did not invoke the common law rule that a failure to vote constitutes acquiescence with the majority of those voting. Instead it said that the motion has passed regardless of whether the four refusals to vote were considered as \u201cyeas\u201d or \u201cnays.\u201d If considered to be \u201cyeas,\u201d the motion carried eight votes to none. If the refusals to vote were considered to be \u201cnays,\u201d the aldermen were deadlocked at four votes in favor and four votes against. In that event, the mayor was entitled to cast his \u201cyea\u201d vote and the motion carried. It is to be observed that while the court did not decide whether the refusals to vote were to be deemed \u201cyeas\u201d or \u201cnays,\u201d it is clear that it judged that the refusal to vote was not to be considered of no significance. The court\u2019s reasoning shows that it deemed that the refusal to vote was to have a legal effect on the balloting.\nThe effect of voting to \u201cabstain,.\u201d or to \u201cpass,\u201d or voting \u201cpresent\u201d or of refusing to vote when present at a meeting depends on whether \u201cthe affirmative vote\u201d of a majority or \u201cthe concurrence\u201d of a majority, of either the quorum or of all members then holding office, is required for passage. If \u201cthe affirmative vote\u201d of a majority of either standard is required (e.g., Ill. Rev. Stat. 1979, ch. 24, par. 11\u201474\u20146), then nothing less than a majority of \u201cyea\u201d or \u201caye\u201d votes will result in passage. An attempt to vote to \u201cabstain\u201d or in any manner other than \u201cyea\u201d or \u201cnay,\u201d or a failure to vote shall be considered to have the effect of a \u201cnay\u201d vote. Where the \u201cconcurrence\u201d of a majority is required for passage, the holding in most of the jurisdictions where the issue has been considered is that a vote of \u201cpass,\u201d \u201cpresent,\u201d or \u201cabstain\u201d or a failure to vote when present constitutes an acquiescence or concurrence with the members of the majority who did vote on the question involved. This is described in The Law of Local Government Operations: \u201cIt is a general rule that those members present at a meeting consisting of a quorum must vote against a proposal in order to defeat it. If members are present and refuse to vote, they are deemed to have consented to the majority decision.\u201d (Rhyne, The Law of Local Government Operations sec. 5.6, at 77 (1980). (See also Annot., 63 A.L.R.3d 1072, 1083 (1975); Froehlich, Effect of Council Members Voting \u201cAbstain, \u201d \u201cPass,\u201d or \u201cPresent\u201d 59 Ill. Municipal Rev. 15 (June 1980).) This holding of a majority of jurisdictions developed from the common law rule pertaining to elections announced in Rex v. Foxcroft (1760), 2 Burr. 1017, 1021, 97 Eng. Rep. 683, 685: \u201cWhenever electors are present, and do not vote at all (as they have done here,) \u2018they virtually acquiesce in the election made by those who do.\u2019 \u201d\nHamm\u2019s failure to vote as a trustee operated as a concurrence with the approving votes of the three trustees, i.e., Kiesgen, Berdnick, and Krueger, who constituted a majority of the trustees who actually voted. Trustee Misiek voted against the ordinances. Thus, ordinances 79 \u2014 5 and 79 \u2014 6 were passed by a margin of four to one. See Annot., 63 A.L.R.3d 1072, 1083 (1975); Froehlich, Effect of Council Members Voting \u201cAbstain,\u201d \u201cPass,\u201d or \u201cPresent, \u201d 59 Ill. Municipal Rev. 15 (June 1980).\nThe plaintiff contends that even if Hamm\u2019s failure to vote is considered as a concurrence with the majority, the ordinances are invalid, since no vote was recorded for Hamm as section 3 \u2014 11\u201417 of the Illinois Municipal Code requires. There is no merit in this. Under the circumstances, the village clerk could not reasonably be expected to describe the conduct of Hamm other than as a failure to vote. It was only after prolonged litigation that it has been determined that Hamm\u2019s inaction or failure to vote should be given the effect of a \u201cyea\u201d vote.\nFor the reasons given, the judgment of the appellate court is reversed. The judgment of the circuit court of Lake County is affirmed.\nAppellate court reversed; circuit court affirmed.", "type": "majority", "author": "JUSTICE WARD" }, { "text": "JUSTICE SIMON,\ndissenting:\nSection 3 \u2014 11\u201417 of the Illinois Municipal Code (Ill. Rev. Stat. 1979, ch. 24, par. 3\u201411\u201417) requires \u201cthe concurrence of a majority of all members then holding office\u201d before an ordinance may be passed by a village board of trustees. The two ordinances in issue received only three \u201caye\u201d votes \u2014 not a majority of the six-member board. One member voted against the measures; one, Richard Hamm, did not vote because the measures concerned his salary; and one member was absent. Unlike the majority, I am forced to conclude that the ordinances did not pass.\nThe majority contends that trustee Hamm\u2019s failure to vote can be counted with the \u201caye\u201d votes so that the ordinances did have the concurrence of four members necessary for passage. In arriving at this peculiar rule, it relies on what it calls the common law rule of Rex v. Foxcroft (1760), 2 Burr. 1017, 1021, 97 Eng. Rep. 683, 685 (also known as Oldknow v. Wainwright), in which Lord Mansfield stated in a one-line opinion that \u201c[wjhenever electors are present, and do not vote at all (as they have done here,) \u2018they virtually acquiesce in the election made by those who do.\u2019 \u201d The majority states that this is the appropriate rule to apply when a statute requires \u201cthe concurrence\u201d of a majority of all members as opposed to the \u201caffirmative vote\u201d of such a majority, and that under that rule, Hamm\u2019s abstention would be counted with the \u201caye\u201d votes.\nThe majority\u2019s reliance on Rex v. Foxcroft is misplaced. That case had little to do with the issues presented here. First, I believe the majority\u2019s interpretation of what Lord Mansfield said is incorrect. Second, even if the majority is correct in its interpretation of his statement, to take such a hoary case out of its common law context and apply it to this case in which a special rule for the passage of ordinances is given in the Illinois Municipal Code is error. Admittedly, there are a few cases that seem to support the majority\u2019s interpretation of the rule in Rex v. Foxcroft and its application to cases like the one presented here. (See, e.g., State ex rel. Young v. Yates (1897), 19 Mont. 239, 47 P. 1004 (dictum); Northwestern Bell Telephone Co. v. Board of Commissioners (N.D. 1973), 211 N.W.2d 399 (relying on Babyak and Yates, not Rex v. Foxcroft); Babyak v. Alten (1958), 106 Ohio App. 191, 154 N.E.2d 14 (dictum and probably overruled sub silentio in Davis v. City of Willoughby (1962), 173 Ohio St. 338, 182 N.E.2d 552).) The weight of authority appears, however, to be against the application of any such rule to cases involving statutes which require the agreement of the majority of the total membership (see, e.g., Mann v. Key (Ala. 1977), 345 So.2d 293; State ex rel. Deal v. Alexander (1899), 107 Iowa 177, 77 N.W. 841; Ram Development Co. v. Shaw (Minn. 1976), 244 N.W.2d 110; Caffey v. Veale (1944), 193 Okla. 444, 145 P.2d 961; State ex rel. Rea v. Etheridge (Tex. Com. App. 1930), 32 S.W.2d 828), even when the statute requires a \u201cconcurrence.\u201d See, e.g., Reese v. State ex rel. Carswell (1913), 184 Ala. 36, 62 So. 847; Van Hovenberg v. Holeman (1940), 201 Ark. 370, 144 S.W.2d 718; Steers Sand & Gravel Corp. v. Village Board (N.Y. Sup. Ct. 1954), 129 N.Y.S.2d 403; Davis v. City of Willoughby (1962), 173 Ohio St. 338, 182 N.E.2d 552; State ex rel. Roberts v. Gruber (1962), 231 Or. 494, 500, 373 P.2d 657, 660 (condemning Babyak and State ex rel. Young v. Yates as an unwarranted extension of Rex v. Foxcroft).\nRex v. Foxcroft involved the appointment of the town clerk of Nottingham by the mayor, aldermen, and common council. Of the 25 electors 21 were present at the meeting. Of those present, nine voted for Thomas Sea-grave, and 12 refused to vote entirely on the ground that the position was already occupied. In my view, the case stands for several propositions. First, the common law requirement for action by such a body is the agreement of a majority of those present and voting, and not a majority of those present. Next, the failure of abstainers to speak will not be construed as a \u201cno\u201d vote, even if their views on the election were clear. Finally, nonvoting members of the body may be counted in establishing the presence of a quorum without otherwise affecting the vote. In his characteristic style, Lord Mansfield rationalized his rule by saying that such members \u201cvirtually acquiesce\u201d in the election made by those who do vote. Rex v. Foxcroft (1760), 2 Burr. 1017,1021, 97 Eng. Rep. 683, 685.\nMy colleagues apparently interpret Lord Mansfield\u2019s statement to mean that while a majority of those present is necessary for a parliamentary body to take action, those who are present but do not vote are deemed to acquiesce, so that the requisite majority is achieved. This is a distortion, though not an original one, of what Lord Mansfield said. He did not say abstainers support the position of the majority so as to add to the majority; he said they accept the action taken by the entire body. They had a vote and they did not use it. The election was complete without their participation because only a majority of those present and voting is required.\nIn most situations the majority\u2019s misinterpretation of the Foxcrofi rule would cause no mischief. If the common law requirement of a majority of those present and voting is what should be applied and instead a court applies a rule that a majority of those present is necessary but abstainers will be counted with the majority, the result reached would still be the same. But even assuming the majority\u2019s loose definition of the Foxcrofi rule is correct, it has no place in a case in which a strict statutory requirement for the passage of legislation, namely a concurrence by a majority of those currently holding office, must be followed instead of the usual common law rule. The rule the majority applies is not so obvious or commonly known that one would expect the legislature to have been aware of it. In fact, as noted above, most cases do not apply such a rule to statutes like the one we have before us. As such, it is unlikely the legislature intended it to cover the situation. To apply it here, where the requirements for passage were purposely made stricter than the common law, would emasculate the special rule for ordinances that the legislature saw fit to impose. The statute would be avoided by the use of a legal fiction.\nThe majority does not recognize the distinction between cases involving the common law requirement for the passage of legislation and those involving a statutory requirement like that of the Illinois Municipal Code. Indeed, in marshaling support for its judgment, it cites an A.L.R. annotation on the subject (Annot., 63 A.L.R.3d 1072 (1975)), but rather than citing to the section of the annotation dealing with cases in which the requirement for passage was a majority of the total membership, it cites to the page of the section that discusses cases in which the common law requirement applied. The former section of the annotation cites many more cases against the majority\u2019s position than for it. The majority also cites Rhyne, Law of Local Government Operations sec. 5.6, at 77 (1980), as authority to apply the rule it advocates to the present case. Yet, taken in its proper context, Rhyne\u2019s statement is no such authority. None of the cases cited by Rhyne deal with a statutory imposition that a majority of the legislative body\u2019s membership agree. All concern a lesser requirement for passage. One such case, Mann v. Housing Authority (1952), 20 N.J. Super. 276, 279, 89 A.2d 725, 727, holds that the rule my colleagues advocate applies only where \u201cno specified number of votes is required, but the majority of a board regularly convened is entitled to act.\u201d Since the statute the court in Mann was construing required at least three votes for passage of any legislation, the rule the majority here advances was not applied. The majority also supports its judgment with Launtz v. People ex rel. Sullivan (1885), 113 Ill. 137. That case too concerns only a common law requirement for the passage of the legislation and not a strict statutory requirement that a majority of the legislative body\u2019s membership agree.\nThe majority apparently recognizes, however, that applying its peculiar interpretation of the rule of Rex v. Foxcroft to all cases in which a statute requires the agreement of a majority of the body\u2019s membership to pass legislation could do serious harm to the legislative intent. Such a rule greatly lessens the effect of such rules. The majority therefore makes a distinction between statutes that require the \u201cconcurrence\u201d of such a majority and those that require the \u201caffirmative vote.\u201d The latter, it states, is the stricter requirement and does not allow for the fiction contained in Lord Mansfield\u2019s dictum,-, the former, it contends, is a looser standard for which an abstention may be treated as a vote with the majority. This distinction is made despite the fact that Rex v. Foxcroft itself suggests no such distinction.\nI do not agree that the word \u201cconcurrence\u201d in the context of the Illinois Municipal Code is subject to such an interpretation. In Blakemore v. Brown (1920), 142 Ark. 293, 297, 219 S.W. 311, 312, the Supreme Court of Arkansas stated that \u201c[t]he use of the word \u2018concurring\u2019 necessarily implied consent, evidenced in some overt way, and not a mere silent acquiescence or submission.\u201d (Accord, Dillon v. Scofield (1881), 11 Neb. 419, 9 N.W. 554; State v. Vermont Emergency Board (1978), 136 Vt. 506, 394 A.2d 1360.) In Eubanks v. State (1911), 5 Okla. Crim. 325, 333, 114 P. 748, 752, the Criminal Court of Appeals of Oklahoma held that the words \u201cconcurrence\u201d and \u201cconcurring\u201d within the context of the State constitution and grand jury statute \u201cmean \u2018assent,\u2019 or \u2018consent,\u2019 indicated by affirmative action on the part of the grand juror, by vote or ballot, showing direct approval.\u201d Perhaps most important, however, is Davis v. City of Willoughby (1962), 173 Ohio St. 338, 182 N.E.2d 552, a case not unlike the one at bar, involving the treatment of an abstention in a city council vote. Citing Dillon and Blackmore, the court found the word \u201cconcur,\u201d in the context of the Ohio statute requiring three-quarters of the members of the council to concur before certain public improvements could be made, to mean an actual vote for the proposition and not mere silent submission. (173 Ohio St. 338, 344, 182 N.E.2d 552, 556.) These cases solidly reject the majority\u2019s contention, and I think they are supported by logic and good sense.\nRules of parliamentary procedure tend to be rigid and formalistic. There is an excellent reason for this: Little room exists for judgment calls when it comes to determining whether or not a particular item of legislation has been passed or not; the law must be clear. I find it incredible to believe that our legislature would deliberately throw a wrench into the workings of our local legislative bodies by drafting a rule for the passage of ordinances that would inevitably lead to conflicts over whether a concurrence of the requisite majority had been achieved. If an abstention can be construed as a concurrence, think what other actions could also be so construed \u2014 like not showing up for the meeting at all. Perhaps no formal vote need even be taken. As soon as a majority of the members clearly appear to be like-minded, should the bill pass? Such rules would obviously lead to legislative chaos.\nInterestingly, the Illinois Constitution of 1970 uses the word \u201cconcurrence\u201d often in describing requirements for various bodies in reaching decision. For example, the \u201cconcurrence\u201d of four justices of the supreme court is necessary for a decision. (Ill. Const. 1970, art. VI, sec. 3.) During my tenure here, however, no one has ever suggested that an abstention should be counted with the majority, although there have been cases in which such a rule would have been decisive in preliminary vote taking. Four \u201cyes\u201d votes have always been thought to be required. Similar provisions appear in other parts of the Constitution. Ill. Const. 1970, art. IV, sec. 8(c) (the legislature), arts. VI, sec. 15(f) (the Courts Commission).\nI think that the application of the rule the majority has derived from Rex v. Foxcroft to the situation at bar cannot be justified by interpreting the words \u201cconcurrence of a majority\u201d to mean something less than the affirmative votes of a majority. The two cannot be treated differently. The issue must therefore be whether their rule can be applied to any case in which a statute requires a majority of the legislature\u2019s total membership either to agree, concur or affirmatively vote in order to pass legislation. As stated above, the weight of authority is clearly against its application. (See, e.g., Van Hovenberg v. Holeman (1940), 201 Ark. 370, 144 S.W.2d 718; Van Cleve v. Wallace (1944), 216 Minn. 500, 13 N.W.2d 467; Ezell v. City of Pascagoula (Miss. 1970), 240 So.2d 700; Rockland Woods, Inc. v. Incorporated Village of Suffern (1973), 40 App. Div. 2d 385, 340 N.Y.S.2d 513; Steers Sand & Gravel Corp. v. Village Board (N.Y. Sup. Ct. 1954), 129 N.Y.S.2d 403; Davis v. City of Willoughby (1962), 173 Ohio St. 338, 182 N.E.2d 552; Caffey v. Veale (1944), 193 Okla. 444, 145 P.2d 961; State ex rel. Roberts v. Gruber (1962), 231 Or. 494, 373 P.2d 657.) To follow these cases and reject the use of a legal fiction to achieve the necessary consensus would, I believe, be in harmony with the purpose of the statute \u2014 to ensure that before ordinances are passed by a village board of trustees there is clear and express approval of the measure. (See Rockland Woods, Inc. v. Incorporated Village of Suffern (1973), 40 App. Div. 2d 385, 340 N.Y.S.2d 513.) The statute is designed to prevent passage of ordinances on a whim or when a majority of the whole number is unwilling to stand up and be counted as supporters of the measure.\nThe only argument the majority can muster against such precedent is one of practicality. If abstentions are not counted as concurrences, they may prevent any action by the legislative body. (See Northwestern Bell Telephone Co. v. Board of Commissioners (N.D. 1973), 211 N.W.2d 399, 404.) The power of an abstainer to prevent action, however, would not be any greater in this case than that of a member who votes \u201cno.\u201d Furthermore, to such an argument, the Supreme Court of Oregon has said:\n\u201cWe are fully aware of the reasons of policy emphasized in some of the decisions which underlie the rule of Rex v. Foxcroft, that is to say, that it is the duty of members of a city council to vote and that they ought not \u2018by inaction, prevent action by the board.\u2019 [Citation.] It is quite as important, however, that a court does not close its eyes to the plain meaning of a statute or a charter provision in order to achieve a desired end.\u201d (State ex rel. Roberts v. Gruber (1962), 231 Or. 494, 500-01, 373 P.2d 657, 660.)\nThat is exactly what the majority has done here.\nI would affirm the appellate court\u2019s judgment.\nJUSTICE CLARK joins in this dissent.", "type": "dissent", "author": "JUSTICE SIMON," } ], "attorneys": [ "Soffietti, Johnson & Teegen, Ltd., of Fox Lake (Howard K Teegen, of counsel), for appellants.", "Brydges, Riseborough, Morris, Franke & Miller, of Waukegan (D. Richard Joslyn, of counsel), for appellee." ], "corrections": "", "head_matter": "(No. 54922.\nRONALD PROSSER, Appellee, v. THE VILLAGE OF FOX LAKE et al., Appellants.\nOpinion filed June 18, 1982.\nSIMON and CLARK, JJ., dissenting.\nSoffietti, Johnson & Teegen, Ltd., of Fox Lake (Howard K Teegen, of counsel), for appellants.\nBrydges, Riseborough, Morris, Franke & Miller, of Waukegan (D. Richard Joslyn, of counsel), for appellee." }, "file_name": "0389-01", "first_page_order": 401, "last_page_order": 416 }