# McHenry State Bank v. Harris > Illinois Supreme Court · April 16, 1982 · 89 Ill. 2d 542 URL: https://www.frixlaw.com/law-library/cases/6984578 ## Case - **Full name:** McHENRY STATE BANK v. WILLIAM C. HARRIS, Commissioner of Banks and Trust Companies - **Court:** Illinois Supreme Court - **Decided:** April 16, 1982 - **Citations:** 89 Ill. 2d 542; 61 Ill. Dec. 547; 434 N.E.2d 1144; 1982 Ill. LEXIS 259 - **Precedential status:** Published - **Opinion:** Concurrence by Simon - **Judges:** Goldenhersh, Simon - **Cited by:** 1 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6984578 ## Opinion text JUSTICE SIMON, specially concurring: Rather than tackle the difficult issue of what constitutes branch banking, an issue upon which the majority opinion sheds little light, I prefer to rest my decision on my belief that, whatever the nature of the statute in issue, it received the required three-fifths majority of the members voting on the issue. The 1970 Illinois Constitution provides: “Branch banking shall be authorized only by law approved by three-fifths of the members voting on the question or a majority of the members elected, whichever is greater, in each house of the General Assembly.” (Ill. Const. 1970, art. XIII, sec. 8.) The measure in question received 99 “yes,” 59 “no,” and 12 “present” votes, with seven members not voting in the House of Representatives. It received 34 “yes,” 20 “no,” and three “present” votes, with two members not voting in the Senate. In issue is whether a vote of “present” should be counted in calculating the number of members “voting on the question,” since if they are to be so counted, the bill did not pass either house by the required three-fifths majority. The 1970 Illinois Constitution does not explain what is meant by “three-fifths of the members voting on the question.” Perhaps the intention was to leave that determination to the legislature, since the Constitution expressly commands that “ [e]ach house shall determine the rules of its proceedings ***.” (Ill. Const. 1970, art. IV, sec. 6(d).) Whether one looks primarily to the intent of the constitutional convention or to the procedure adopted by the houses of the General Assembly, however, the result is the same: a vote of “present” is not a vote on the question. The 1970 Illinois Constitution provides that a record vote, which is necessary for the passage of any law, is “a vote by yeas and nays ***.” (Ill. Const. 1970, art. IV, sec. 8(c).) No mention is made of votes of “present,” thus indicating that such a vote was not considered to be a true vote at all by the delegates to the constitutional convention. In fact, the parliamentary rules adopted to govern the proceedings of the constitutional convention itself specifically provide that present votes were not to be counted. Rule 72 stated: “Votes cast as ‘present’ shall be recorded in the Journal as ‘present,’ but such votes shall not be counted in determining the required number of votes on those measures or questions needing the affirmative vote of those ‘present and voting.’ ” 1 Record of Proceedings, Sixth Illinois Constitutional Convention 851. This was in keeping with established practice before the adoption of the Constitution. In Bunsen v. County Board of School Trustees (1964), 48 Ill. App. 2d 291 , the Illinois Appellate Court concluded that a vote of three “yes,” two “no,” and one “pass,” with the president not voting, constituted a majority of those members of the seven-member county board of school trustees “voting on the measure.” I see no distinction between a vote of “pass” and one of “present.” Both signify an abstention from the issue. It would be unrealistic to attribute special properties to one but not the other, and neither should be treated as a vote on the question. “Voting on the question” has been defined in other States to mean “ ‘ “expressing the will, mind or preference.” ’ ” (Kellams v. Compton (Mo. 1947), 206 S.W.2d 498 , 499. Accord, State ex rel. Travers v. McBride (Mo. App. 1980), 607 S.W.2d 851 .) In those cases, void votes were held not to be part of the total votes on the question. In Wooley v. Sterrett (Tex. Civ. App. 1965), 387 S.W.2d 734 , the court stated that the word “vote” cannot be equated with total failure of choice; therefore, the court held that blank ballots should not be counted in tallying the total number of votes on the issue. I believe these cases are applicable here. A vote of “present,” like a blank ballot, is not an expression of choice. The major handbook on parliamentary procedure, Robert’s Rules of Order, in the edition available at the time of the constitutional convention, agrees at least insofar as votes of “abstain,” “present,” or blank ballots are concerned. See Rockland Woods, Inc. v. Incorporated Village of Suffern (1973), 40 App. Div. 2d 385, 340 N.Y.S.2d 513 (interpreting Robert’s Rules, 1970 edition, to mean an abstention should not be counted as a vote). The conclusion must be that the ordinary understanding of the words “members voting on the question” did not include members voting “present.” Sound rules of construction require that the terms be given the same interpretation in the Constitution unless it can be shown that some other meaning was intended. See Paper Supply Co. v. City of Chicago (1974), 57 Ill. 2d 553, 565 . The rules of procedure in effect in the two houses of the General Assembly also appear to exclude “present” votes from the total number of votes on the question. Because the legislators did not believe the measure in question concerned branch banking, the members were not careful in determining whether a three-fifths majority had been obtained. It seems clear, nevertheless, that under the House rules, a three-fifths majority was obtained. The House adopted temporary rules on January 14, 1981. (Rules of the House of Representatives, 82d General Assembly, House Resolution 5 (Jan. 14, 1981).) No permanent rules were ever adopted. House Rule 52 states: “A member who answers ‘present’ on a roll call shall be so recorded, but a vote of *present’ shall not be counted in determining the result of the roll call vote.” (Also, see House of Representatives Table of Extraordinary Vote Requirements.) The plaintiff does not dispute that Rule 52 applies in this case. The real dispute revolves around the Senate rule. The eighty-second Senate adopted no special rule with regard to “present” votes. Senate Rule 51, however, adopts Robert’s Rules of Order when Senate rules are silent on a question of parliamentary procedure. (Rules of the Senate, 82d General Assembly, Senate Resolution 2 (Feb. 17, 1981).) Robert’s Rules equates a vote of “present” with a vote of “abstain,” stating, “If [a member] does not wish to vote, he answers ’present’ (or ‘abstain’).” (H. Robert, Robert’s Rules of Order Newly Revised sec. 44 (S. Robert ed. 1981). It states further: “A two thirds vote — when the term is unqualified — means at least two thirds of the votes cast by persons entitled to vote, excluding blanks and abstentions ***.” The same rule applies to simple majorities. H. Robert, Robert’s Rules of Order Newly Revised sec. 43 (S. Robert ed. 1981). The plaintiff contends that the rule does not apply in this case because the required majority is qualified by the words “voting on the question.” I do not agree. If anything, those words emphasize the applicability of the general rule. Thus a vote of “present” is not a vote at all for the purpose of determining the result of a vote. Plaintiff also contends that because previous Senates have counted “present” votes in tallying the number of votes on the question, the same should be done now. During debates on branch banking measures in May of 1977 and again in May and June of 1979, the Senate President repeatedly ruled that “present” votes would be counted in determining whether a three-fifths majority of those voting on the question had been obtained. (Transcripts of 80th General Assembly Regular Session, at 50-51 (May 26, 1977); Transcripts of 81st General Assembly Regular Session, at 195 (May 25, 1979); Transcripts of 81st General Assembly Regular Session, at 166-67 (May 25, 1979); Transcripts of 81st General Assembly Regular Session, at 49 (June 30, 1979).) On one occasion, the President ruled: “Yes, under Article XIII, Section 8, which provides that branch banking shall be authorized only by law approved by three-fifths of the members voting on the question. We ruled in the past and I’m prepared again to rule today, that a vote Present on the question, when the bill is called, is a vote and will count in the group.” As I stated in Rock v. Thompson (1981), 85 Ill. 2d 410, 435 (Simon, J., concurring), “Referring to custom to apply past procedures to a new Senate imposes upon the electorate viewpoints they may have voted to replace.” The procedural interpretations of a previous Senate, particularly those contradicting that Senate’s written rules, should not be carried over to contravene the clear meaning of rules adopted by the present Senate. I therefore find that the new law, whether a branch banking law or not, was properly passed. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6984578. Public record. Not legal advice.