I concur in the holding of the majority opinion that the marriage fund is a private trust, and, as such, is not subject to control by mandamus. I am also of the opinion that the county board has power to appropriate funds to pay such actual, necessary expenses of visiting judges holding court in Cook county, as necessarily arise from that *Page 106 service, but, in my opinion, only such expenses. More than the amount expended, whether great or small, is an increase in the salary of such judges.
A definite distinction is to be drawn between expenses necessary to the discharge of the duties of an office and those personal to the officer. The latter are prohibited, the former are not. (Fergus v. Russel, 270 Ill. 304.) Obviously, some showing is necessary to differentiate between the two before public funds can be so used.
I do not concur, either in the holding of the majority opinion that $20 per day has been appropriated by the county board, or that such a sum can be considered expenses necessary to the services of visiting judges, — i.e., necessary to the office. In my opinion, these holdings are supported by neither the facts nor the law of this case. The appropriation of the county board is of the sum of $4500 to pay the expenses of the office or services of visiting judges, and is valid for that purpose and to that extent only. It can be used only on a showing that the expenses sought to be paid out of it are the actual necessary expenses of the office occasioned by the service rendered. This is the basis and heart of the decision of this court in Fergus v. Russel, supra.
In the Fergus case, the decision, controlling here, arose on appropriations made to State officers, including the Governor, Lieutenant Governor, Secretary of State and Superintendent of Public Instruction. The appropriation act required that those appropriations be paid out by warrants on the State Treasury, which warrants "shall, when not otherwise provided by law, be drawn only on itemized bills, accompanied by receipted vouchers, showing the expenditure of moneys named in the itemized bills." The objection was that those appropriations increased the compensation of the officers to whom they were appropriated, contrary to constitutional inhibition. This court said, (pages 326, 7,): "that no money was intended to be appropriated except so *Page 107 much as is necessary to meet the ordinary and contingent expenses of the State government; * * * it was the intention of the General Assembly to make these appropriations only for such expenses as the officers to whom the appropriations were made are authorized to incur, and to prevent the payment of the money except on a receipted voucher showing that the expenses had actually been incurred and paid. It is apparent that none of these appropriations were intended to be for the personal benefit of the officer to whom the appropriation was made. It is only necessary to determine, therefore, whether the expenses for which the appropriations were made are such as would properly constitute a charge against the State or should be borne personally by the officer to whom the appropriation was made."
It was held that such expenses were not personal to the officers to whom the appropriations were made, and could not be considered a "shift, device or subterfuge" to increase their salaries. This decision is based on the proposition that the expenses of a public officer, whose salary may not be increased, which are necessary to the discharge of his duties, and these only, may be appropriated for. The appropriation to the Lieutenant Governor for traveling expenses was held valid only to the extent that it refunded his traveling expenses. Of the appropriation to the Secretary of State "For editing the Blue Book, $2000," it was there said: (page 331) "That it was not contemplated or intended that the Secretary of State should personally edit the Blue Book and receive this compensation is too clear to admit of argument; and should he do so, this appropriation would not be available, as he must by his receipted vouchers show that the money secured from this appropriation has been expended by him for this purpose." The repeatedly expressed ground of the opinion in the Fergus case is that appropriations for expenses are valid only for money actually expended in meeting the expenses of the *Page 108 office, and for no more. It is clear from that decision that anything above such amounts would add to the compensation of the officer and result in an increase of his salary.
The majority opinion proceeds on the theory that the county board appropriated the lump sum of $20 per day for the expenses of the visiting judges and, having done so, this court could not say that $20 per day is unreasonable. In my opinion, this theory is based on erroneous assumptions, both of law and fact. The county board did not fix a lump sum of $20 per day for expenses nor appropriate for such a per diem. The petition alleges, and the motion to strike admits, that "the county commissioners of Cook county have appropriated by their annual appropriation bill the sum of $4500 to be used for the payment of the expenses of judges of courts outside of Cook county called in to serve as judges of the circuit court of Cook county."
The petition also alleges, and the motion to strike admits, "that prior to adoption of the 1937 annual appropriation bill by the Cook county commissioners it was resolved by the judges of the circuit and superior courts of Cook county, with the knowledge of said commissioners of Cook county, that judges of courts outside of said county, should be reimbursed for their expenses of up-keep and maintenance while holding court in Cook county, the lump sum of $20 per day and that petitioner consented to accept the same, and the said Cook county commissioners acted pursuant thereto and since the adoption of said appropriation bill paid such lump sums to various judges from other courts so serving in Cook county, including petitioner, for expenses incurred on dates prior to the dates involved herein."
This is far from alleging that the county board appropriated $20 per day for such purpose or fixed such an amount, but it does disclose that the judges themselves fixed and determined what should be paid as reimbursement to visiting judges. Of course, no one can claim that the judges had a right to appropriate any amount, but it is *Page 109 claimed, and, in effect, held in the majority opinion, that such a determination, with knowledge of the county board and past payment by the comptroller of such lump sums, authorizes such payment as one appropriated for. It will be noted that payment is now refused because county authorities are advised that the same is illegal. It thus appears that the only authority for the payment of a lump sum of $20 per day to petitioner is the certificate of the chief justice of the circuit court that such sum is due him. How does the chief justice know this? What power has he to so certify such a lump sum? Why is not a certificate of petitioner's necessary expenses presented by him to the comptroller? Surely there is no justification in law for paying out public funds on the certificate of the chief justice that such sum is due or is reasonable. The county board has made no such an appropriation, and I repeat, therefore, that, in my opinion, the majority opinion proceeds on erroneous assumptions of law and fact.
The holding of the majority opinion that courts cannot say, in the absence of a showing that the amount of $20 per day is so excessive as to show a purpose to increase salaries, is based on the argument that such question rests in legislative discretion with which courts will not interfere. I have shown by the petition that the county board did not make such an appropriation. Language indicating that payments "are to be made upon certification of the amounts due by the chief justice of said court" do not and could not amount to an appropriation of such a per diem. While it is true that this court has nothing to do with the amount of an appropriation, actually made, — and if the complaint went only to the general appropriation of $4500 made by the board, such rule would be applicable, — such is not this case. The complaint also is that the county board did not appropriate $20 per day but this has been attempted by the judges by a certificate that such an amount is due petitioner. The county board did not and could not delegate to the *Page 110 chief justice of the circuit court, the power to certify what is a proper bill of expense.
I am further of the opinion that this court can and should say as a matter of common knowledge that $20 per day is substantially more than a visiting judge requires to meet the expenses necessitated by holding court in Cook county, and, therefore, payment of such sum results in increasing salary.
The majority opinion holds that the legislative body may consider the dignity of the office, but there is nothing to indicate that it has done so here. Certainly, the circuit and superior court judges are not a part of the legislative department of county government. They, and they only, have attempted to fix a per diem expense. This court, and by the same token the circuit and superior court judges, cannot say that $20, or any other sum, is to be paid as expenses of visiting judges. Courts are permitted to know matters of common knowledge, and I assert as a matter of common knowledge that no visiting judge requires $20 per day as necessary expenses for holding court in Cook county. Judges of city courts who live within commuting distance may come from and return to their homes each day, yet, in addition to railroad fare, also allowed, they are to receive $20 per day while serving as visiting judges. Surely the payment of a sum which has not been fixed by legislative enactment, nor certified as correct by the visiting judge, cannot be vitalized by the certificate of another judge who, necessarily, has no first-hand knowledge of the facts. This court in the Fergus case, and other cases, has set its face squarely against an increase in salary of public officials under the guise of expenses of the office. Hogan v. Stophlet, 179 Ill. 150; Hall v. Hamilton, 74 id. 437.
If the total involved here were but a matter of a few dollars in an expense account, this dissent would not have been written. The thing involved is of vastly greater importance. If payment of public funds in a lump sum without *Page 111 certificate of the visiting judge or other showing of his actual expense may be ordered by mandamus, when no such appropriation has been made, and the legislative department of the county has not declared such a payment proper, and which lump sum payment must look for its validity to the certificate of the chief justice, then, in my opinion, the door is opened for the payment of any sum under the guise of expense of the office, though it is, in fact, nothing but a gift, and, as such, an invalid increase in official salaries. The fact that no certificaate of actual expense is required of the visiting judge is the vice of this arrangement. In no other way can it be shown that a legal expenditure is being made. The judges of the circuit and superior courts may have intended to make it desirable to visiting judges to serve in Cook county, and so far as they use the private marriage fund for the purpose of such allowance, no one can complain, as that is not a public fund; but to so use public funds to pay such visiting judges a lump sum, without any showing that it was the amount paid out, is a pure gift of public funds.
In People ex rel. Bockes, v. Wemple, 115 N.Y. 302, the New York Court of Appeals held invalid, as providing additional salary, a statute providing that each judge of the Supreme Court should receive $1200 per year in lieu of all expenses. The act was characterized, "a clear grant of pay or compensation, having no connection with the expenses incurred by the justice."
It is elemental in the law of mandamus that the petitioner must show a clear right to the writ. This he has failed to do. The writ should be denied as to all defendants.
Mr. CHIEF JUSTICE FARTHING, also dissenting. *Page 112