Fergus v. Russel

Mr. Justice Craig,

dissenting:

The appropriations attacked in' this suit as having been made for unlawful purposes have been held valid with the exception of the appropriations to the State Treasurer for refund of taxes, the appropriation to the Secretary of State for telephone tolls for members of the General Assembly, and the appropriation for legal services and traveling expenses of attorneys and court costs for the insurance department. I do not concur with the foregoing opinion as to the last two appropriations; and as to the relief sought by the bill filed in this case, it is not, in my opinion, of such character as would authorize a court of equity to entertain this suit without the intervention of the Attorney General.

The appropriation for telephone tolls is not for the benefit of the General Assembly that made the appropriation or for the members thereof, but is to' the Secretary of State as custodian of the capítol building and is for the benefit of the succeeding General Assembly. It is in no way an allowance or emolument or perquisite to any member nor is it an incidental expense to be paid to the members. It is customary in all legislative bodies to provide pages, messengers, stenographers, etc., to perform services for the members. While in one sense this is an additional expense which is incurred for the benefit of each individual member, the members are not supposed to pay these employees out of their own pockets, and such items of expense are not considered as incidental expenses personal to the members but as an incidental expense of holding a session of a legislative body. I think that the appropriation in question can properly be classed as one of the incidental expenses of that body as a whole which is necessary to enable it to more expeditiously discharge its business as a body. Adequate telephone service is as essential to the proper discharge of the duties of the members of the General Assembly as it is for the proper discharge of the duties of the officers and employees of the other departments of the State government. The Omnibus Bill includes numerous items of appropriation for the various State offices, none of which are challenged in this suit, for telephones, telegraph and express charges, etc., which will necessarily be incurred in the proper discharge of the business of those offices, and in my judgment the appropriation in question for the members of the succeeding General Assembly is of the same character and should be sustained as such.

As to the appropriation for legal services, etc., for the insurance department, it is true that the office of Attorney General was known to the common law. • Just what his duties and prerogatives weré, as a matter of judicial history, is involved in some doubt, to say the least, as may be gathered from the reports of the common law courts cited in the majority opinion, particularly the opinion in the case of Wilkes v. Rex, on appeal from the court of King’s Bench to the House of Lords, as reported in Wilmot’s Notes of Opinions, on page 322, in which it is said: “The great abilities of the persons appointed to the office have made it figure high in the imagination and annexed ideas to it which do not belong to it, for he is but an attorney, though to the king, and in no other or different relation to him than every other attorney is to his employer.” The same case as reported in Brown’s Cases in Parliament (vol. 4, p. 360,) holds that the Solicitor General might file an information •as well as the Attorney General, and such'had been the common practice. About all that can be said is that he was an attorney for the crown, but, as stated in the majority opinion, he was not the sole representative of the crown in the common law courts.

The extent to which the common law is made a part of our system of laws is fixed by the single section of chapter 28 of the Revised Statutes. As stated by Judge Cooley in his work on Constitutional Limitations (yth ed. p. 94) : “It is also a very reasonable rule that a State constitution shall be understood and construed in the light and by the assistance of the common law and with the fact in view that its rules are still left in force. By this we do not mean that the common law is to control the constitution, or that the latter is to be warped and perverted in its meaning in order that no inroads, or as few as possible, may be made in the system of common law rules, but only that for its definitions we are to draw from that great fountain, and that in judging'what it means we are to keep in mind that it is not the beginning of law for the State, but that it assumes the existence of a well understood system, which is still to remain in force and be administered but under such limitations and restrictions as that instrument imposes.” While it is proper to refer to the common law for assistance in construing a constitution, it does not follow simply because an officer was known to the common law and is also named in the constitution by the same name or common law designation, that there is thereby engrafted into the constitution, as a part thereof, all of the powers, duties and prerogatives of such officer at common law, to the extent that such powers, duties and prerogatives would become constitutional provisions and that the legislative department of the government would have no power to abolish, modify or restrict such common law powers. That would make the common law control the constitution. The constitution of 1818 did not'create the office of Attorney General. By paragraph 10 of the schedule it was left optional with the legislature to appoint an Attorney General and prescribe his duties. The constitution of 1848 did not provide for the election or appointment of an Attorney General. Between 1848 and 1867 the State had no Attorney General, so that from 1818 to 1870 every Attorney General of this State was an officer provided for by the statute and whose duties were regulated and prescribed by legislative enactment. It is reasonable to suppose that in adopting the constitution of 1870 the people had in mind by the term “Attorney General” the officer that was known to the law of the State before that time and not the officer existing in England centuries before that time, whose duties and powers could only be ascertained by an examination of the early English Reports, if at all. In the case of Dahnke v. People, 168 Ill. 102, as to the powers of the sheriff, a reading of the opinion will disclose that the court based its opinion upon the exact question at issue, more upon the powers of the sheriff as conferred upon him by statute than upon his common law powers and prerogatives. In the case of Chicago Mutual Life Indemnity Ass'n v. Hunt, 127 Ill. 257, it was merely held that in that particular case the Attorney General had power to act. The question was not involved as to whether, in a proper case, other officers or attorneys could by law be empowered to also act in similar suits.

To hold that it is the duty of the Attorney General to conduct the entire law business of the State, and that he is the sole official adviser of all boards,. commissions and departments of the State government, in my opinion is unwarranted, and such holding is not supported by the common law authorities, is contrary to the constitution and the statutes which fix the duties of that office, and is opposed both to the letter and spirit of our laws. There would be just as much reason for saying that such officers as justices of the peace, constables and coroners, which were all known to the common law and had duties, powers and prerogatives which they do not have in this State, and who are also mentioned in the constitution, have all the powers, duties and prerogatives of the officers of the same name at common law, and that the enactments of the General Assembly fixing the duties of these officers which in any way deprive them of their common law powers and prerogatives are all invalid. If the Attorney General of this State were appointed by the Governor and held office at his pleasure, as the Attorney General of England was appointed by the crown and held office and as the Attorney General of the United States is appointed by the President and holds office, there would be more reason for holding that he is the chief adviser of State officers and the different State boards and commissions. Under our system the different boards and commissions appointed by the Governor, as head of the executive department of the State, have to deal with so many questions of law and procedure which directly affect the objects and purposes for which they were created, that when all these matters are put under the control of an officer who is not responsible tO' the executive who appoints these boards and who controls and directs their policies, it cannot help but create confusion and substitute the Attorney General as the directing head of all such boards and commissions instead of the chief executive, who is by law entrusted with such matters.

Whatever the duties and prerogatives of the Attorney General were at common law, his right or duty to act as legal adviser of the officers or departments of State in insurance matters was not one of them. Regulation of insurance matters was unknown to the common law up to the time when the common law was adopted as a part of our system of laws, and in this State insurance is a matter altogether for statutory regulation. The duties of the Attorney General are not prescribed by the constitution,, except that he is to perform such duties as may be prescribed by law. Unquestionably, the legislature has a right to-require the Attorney General to perform such legal duties as may be necessary in behalf of the insurance department or in insurance matters, and for the same reason that he may be required to act, and as these matters are altogether matters of statute law, it would seem that the legislature has the further right to relieve him of those duties by providing for other attorneys or counsel for the insurance department. We have held repeatedly that when an office which the legislature has the right to create has been created by statute, such office is wholly within the control of the legislature creating it, (People v. Loeffler, 175 Ill. 585, and cases cited,) and it necessarily follows that the legislature has the full power to prescribe the duties pertaining to that office and declare what officers shall manage its affairs and what appropriations are necessary therefor. While it is not the duty of courts to question the wisdom of such laws as the legislature has the right to enact, it may be said that in view of the fact that insurance law is a branch by itself and that the insurance business is one of the most important matters with which the State authorities have to deal, the legislature, in creating an insurance department and placing all matters relating to insurance in the hands of a superintendent of insurance, saw fit to allow the Insurance Superintendent his own counsel, who would be in touch with him and responsible to him in much the same manner that many large private businesses retain individual attorneys who are skilled in the particular lines in which they are engaged and who are employed to devote their time exclusively to such matters.

As to the right of -the complainant in the original bill to maintain this suit, it is true that we have held that a tax-payér may resort to a court of equity to prevent the misapplication of public funds. With the exception of the appropriations mentioned and those disposed of on their merits by the foregoing opinion, this case in no way involves the misappropriation of public funds or the expendíture of such funds for what is claimed to be or could reasonably be deemed an improper or unlawful purpose. The cases cited in support of the right of a tax-payer to maintain this suit involved different questions from those presented in the case at bar. In all those cases there was involved but the simple proposition whether in the final outcome of the suit money would be saved to all the taxpayers. In this suit an individual tax-payer, while attacking certain relatively unimportant appropriations, has, in effect, asked for the construction of certain other appropriation measures which are by far the most important matters involved, thereby risking an adverse decision and imperiling the 'interests of all the tax-payers in the State to that extent, and by the ultimate action of this court in declaring the Governor’s veto of certain appropriations unlawful, the result has been, in that respect alone, to materially increase the burden of the tax-payers. No such alternative was involved and such an outcome was not possible in the cases cited.- In the case of Jones v. O’Connell, 266 Ill. 443, the only question in controversy was whether a county treasurer had the right to retain and appropriate to his own use certain fees which would otherwise be the property of the State or county. In the case of Burke v. Snively, 208 Ill. 328, there was involved an appropriation for the maintenance of the Illinois and Michigan canal, and the only issue involved was whether or not such appropriation was unconstitutional. This court held that such appropriation was unconstitutional because of the constitutional provision directly prohibiting an appropriation of money from the State treasury in aid of the said canal. In the case of Adams v. Brenan, 177 Ill. 194, it was held that a tax-payer may maintain a bill in equity to enjoin a board of education from appropriating school funds to a purpose not warranted by law. In the case of City of Chicago v. Nichols, 177 Ill. 97, it was held that a tax-payer of a city could enjoin an illegal or unauthorized diversion of the public funds of the muñidpality or the execution of illegal contracts or the incurring of illegal indebtedness. The question involved was the right of the city council of the city of Chicago to make an appropriation for additional lights in excess of the amount provided in the annual appropriation bill of the year for which the lights were to be used, except in case of casualty or accident happening after such appropriation was made. In the case of Stevens v. St. Mary’s Training School, 144 Ill. 336, it was held that a court of equity had the power to enjoin the appropriation and payment of county funds in aid or support of sectarian schools or any school controlled by a church or religious denomination, such an appropriation being prohibited in express terms by section 3 of article 8 of the constitution. In the case of Littler v. Jayne, 124 Ill. 123, it was held that a tax-payer could enjoin the State House Commissioners from making or approving vouchers for the expenses incurred in making certain statues to be placed in the State house on the ground that the contract for this work was not made by advertising for bids, in compliance with the law which authorized such work to be done, and a misappropriation of the public money was threatened. In the case of McCord v. Pike, 121 Ill. 288, a bill was filed to enjoin the sale of property belonging to the county for a lower.price than had been offered for it, and it was held that if an unjust and illegal burden was attempted to be imposed on the tax-payers by county authorities, or the money or property of the county, to replace which taxes must be levied, is being wasted or squandered, any tax-payer will have such a direct interest as will authorize him to maintain a bill to enjoin the threatened burden or illegal act. Jackson v. Norris, 72 Ill. 364, was for an injunction to restrain the mayor and city council of a city from donating the funds of the city to a manufacturing company, a private corporation, and it was held that a court of equity will entertain a bill on behalf of tax-payers to relieve against such misappropriation of public corporate funds. In Chestnutwood v. Hood, 68 Ill. 132, a bill was filed by tax-payers to enjoin the corporate authorities of the county from issuing bonds in aid of a railroad enterprise. The~question of issuing such bonds had been submitted to the voters of the county at an election as provided by law, and it appeared that a majority of all those voting at such election had not voted in favor of such bond issue. Perry v. Kinnear, 42 Ill. 160, was an injunction suit to restrain a county clerk from issuing an order, and the county treasurer from paying such order, issued pursuant to authority of the county board for the amount of an appropriation from county funds to pay a judge of the circuit court in addition to the salary allowed by law. In Colton v. Hanchett, 13 Ill. 615, it is held that a tax-payer had the right to enjoin the supervisors of a county from appropriating county funds to aid a private individual in the construction of a toll bridge.

In all of the above cases in which appropriations were involved it was the illegality of the purpose of the appropriation, as distinguished from the irregularity of the manner of making the appropriation, that gave a court of equity jurisdiction to entertain such suits. All that was decided in them was, that when public funds are appropriated or being applied to an illegal or unlawful purpose a tax-payer might resort to a court of equity to restrain such illegal appropriation or misapplication of the public funds. The reason assigned for entertaining jurisdiction in those cases was, that if the ultimate objects of such suits were attained there would be a saving of public funds to the tax-payers which otherwise would be wasted or squandered and must be replaced by a new tax levy and the burdens of the taxpayers to that extent proportionately increased. Such is not the situation presented by this case. Instead of money being saved to the tax-payers just the reverse is true. Applying the reasoning upon which the decisions in those cases are based to the situation presented by the case at bar, it will be seen appellees have no standing in a court of equity to maintain this suit.

As to the character of the appropriations chiefly complained of in appellees’ bill, there is no pretense but that-the purposes for which such appropriations were made were legal and lawful or that it was the duty of the General Assembly to make adequate appropriations for such purposes. On the contrary, the contention is that the Governor’s veto of certain items is invalid, and that appropriations were made for certain State officers in the Omnibus Bill which should have been made in another bill,—the State officers’ pay bill. Conceding that the Governor has no power to veto appropriation items in part, I am unable to see how the invalidating of such veto would in any manner inure to the benefit of the tax-payers of the State. The ultimate effect of raising that question is to increase—not decrease— the amount of such appropriations, in the aggregate amounting to hundreds of thousands of dollars, the burdens of the tax-payers being to that extent increased. As to those held to be State officers for whom appropriations were made in the Omnibus Bill, it is not claimed that they are not State officials and as such entitled to their salaries, and in an amount, in the aggregate, appropriated for that purpose. On the contrary, it is admitted that they are such officers, as it is charged in the bill that they are State officers but the appropriation for their salaries was improperly included in the Omnibus Bill. It being conceded that they are State officers, charged with the duty of rendering services to the State, it was incumbent upon the General Assembly, and it was in duty bound, to appropriate funds for the payment of their salaries, which can neither be increased nor decreased during their several respective terms of office. The General Assembly in making these appropriations had done no more than was its legal duty, but in an irregular manner.

While, it is true that the constitution defines what is an office and what an employment, it cannot be said but that the nature of the services performed by certain officials in the various departments of the State government are in many instances of such character that their status as officers or employees cannot be readily distinguished and determined. This is well illustrated here, where neither the counsel for the respective parties, the learned chancellor who heard the cause or this court agree as to the status of every officer or employee for whom an appropriation was made in the Omnibus Bill; and to hold that a court of equity will stay the levy and collection of State taxes at the instance of any tax-payer until, after all the delays incident to a proceeding in that form and an appeal to this court, it has been ascertained in each instance whether or not all of the persons for whom appropriations are made are offi- . cers or employees, is carrying the doctrine of the cases cited in the majority opinion entirely, too far. While, of course, these appropriations should be properly made, there was not such error committed by the legislature in merely getting some of these appropriations in the wrong bill as justifies, under all the circumstances, the action of a court of equity in setting them aside and thereby destroying the functions of certain of the most important branches of the State government. The State acts only through its employees and officers. The bill seeks to tie up the State Public Utilities Commission, the grain inspection department, the Live Stock Commission, the State "Highway Commission, the Mine Rescue Commission, and many others, amounting in all to over a hundred different lines of employment in the various departments of the State. As long as such officers as the Auditor and Attorney General have been elected by the people, and whose duty it is to guard the interests of the people in the matter of bringing suits on behalf of the State or which concern all the people of the. State, it would seem that before a suit of this kind would be entertained by any court they should be consulted in the matter, and should be allowed some discretion as to bringing such suits before imperiling the interests of all other tax-payers of the State, with the unfortunate- result that has been reached by the decision in this case. If they should refuse to bring such suits then the matter could be properly presented to the court by an aggrieved tax-payer to compel them to act.

Analogous, in principle, to the right of a tax-payer to enjoin the improper expenditure of public money is the right to enjoin the collection of an illegal tax. In the case of DuPage County v. Jenks, 65 Ill. 275, in discussing the right of an individual to restrain the collection of taxes, this court, speaking through Mr. Justice Walker, on page 281 said: “It may be, and is, no doubt, true, that many of the citizens of these towns felt themselves under at least a moral obligation to lend the necessary support to the State, county, town and municipal governments under which they lived and by which they were protected in their persons and property, and were willing to waive any irregularities that may have intervened in levying these taxes. They, no doubt, felt the duty they owed to support the State and county governments by paying these taxes. They seem to have had no disposition to engage in a cause that would tend to embarrass the State and to .disorganize the county and stop the administration of justice, even if the tax was not technically correct in the mode in which it was levied. * * * It cannot be held that a litigiously disposed person may, on his own motion, file a bill in his own name and on behalf of all other tax-payers of the county, and stop the collection of all the revenue for the support of the State, the county, townships, cities, towns, schools and other municipalities. Our government is not, and never can be, at the mercy of one or a few individuals thus to bring it to an end by the forms of law. To so hold would be a perversion of the purposes for which a court of chancery was created, and would be a power never conferred, destructive to the peace and good order of society, if not to the government itself. Such a power can never be exer-r cised by any court. It would be revolutionary and highly dangerous to all our institutions.” In Knopf v. First Nat. Bank of Chicago, 173 Ill. 331, it was held that a bank may file a bill in equity to enjoin the collection or extension of an illegal tax on its stockholders, and a number of former decisions of this court are cited in support of such holding in which such suits had been entertained., A distinction, however, is made between those cases and the case of DuPage County v. Jenks, supra, which applies with peculiar force to the facts in the case at bar. It was held in the Knopf case that the decision in the DuPage County case was unquestionably right. The language above quoted was set out in the opinion, and it was further said: “That case involved the entire machinery and existence of all government within those towns. The decision does not rest on the ground that a single wrongful act, which by its general nature inflicts the same injury 'upon every tax-payer, may not be prevented and relief given to- all at the suit of one, but it involved considerations of the existence and administration of government, and when such considerations and questions of public policy are involved they restrain or supplant the exercise of the power of the court, and sometimes even deny what would otherwise be a remedial right in the individual. The decision did not deny or limit the right of the individual to demand action even in such a case, but did require that his right should be limited to himself in a case where it could not be presumed that the other tax-payers desired to stop the administration of the govermnent and where such disastrous consequences would . surely result. The principle does not apply to mere cases of misrule in particular matters, such as .are involved in this case, where it cannot be presumed that the tax-payers desired the imposition and collection of an illegal burden, if it should be found to be such.” These two cases well illustrate the distinction between the case at bar and the cases cited in the majority opinion sustaining the right of an individual tax-payer to maintain such a suit.

The appropriations to the State Treasurer for refund of taxes and the appropriation for the expenses of various commissions created by joint resolution are in the same category as the appropriations attacked in the Omnibus Bill. They were for proper purposes, but the appropriation to the Treasurer should have been for a definite amount and the commissions should have been created by regular enactment instead of by resolution.

No matter what motive prompted this proceeding, as a result of the unfortunate action of one tax-payer in instituting the suit not only have the appropriations and consequent burdens'of all of the tax-payers been materially increased by reason of the action of this court in nullifying the veto of the Governor as to parts of certain items, but the only possible result will be the necessary calling together of the General Assembly in special session, at an additional expense and burden to all the tax-payers, to properly provide the necessary funds with which to carry on the departments of the State government that are involved or else abandon them. As to the personal interest of the complainant in the original bill in the subject matter of this suit, the amount of the tax against his property is infinitesimal and the objections he urges to the appropriations in question are highly technical. If this were a suit in mandamus against the Attorney General or the Auditor of Public Accounts or other proper officer to compel him to institute this suit, the court would have the right to exercise a broad discretion in granting or refusing to award the writ, and would consider the interest of the complainant in the suit and the public inconvenience and embarrassment in the administration of State affairs that might ensue by awarding the writ. (People v. Lieb, 85 Ill. 484.) In my judgment a tax-payer has no right to institute a suit of this character in his own name, or in behalf of himself and all other tax-payers of the' State similarly situated, which he could not compel the proper State officer, under like circumstances, to institute in behalf of himself and all other citizens of the State. Courts of equity are not established for the purpose of deciding academic questions. Under the holding of the majority opinion a different rule is adopted, and any tax-payer of any county in the State now has the right to file a bill in chancery in the circuit court to enjoin the Auditor from issuing, and the State Treasurer from paying, warrants to the various officers and employees of the State because of some alleged irregularities in the enactment of the law making the appropriations for which the warrants are drawn. In self-protection these officers are justified in withholding the issuance and payment of such warrants until the matter can be heard and finally determined by the courts. This, in some instances, may take several months. In the meantime all of the employees and officers concerned are deprived of their compensation legitimately earned. This means that the entire business of the State will be hindered, embarrassed and in some instances stopped. The various State departments which have been affected and whose work has been hampered by this proceeding have been mentioned. A suit against a municipality, such as a county, city or town, or an officer thereof, to prevent an illegal and unlawful appropriation of its funds to a purpose not authorized by law,- which will in no way hinder or embarrass such municipality in the performance of its legitimate corporate powers, duties and functions, or a suit against an officer to prevent him from converting to his own use public funds in violation of law, presents an entirely different situation from the case at bar, where State officers are enjoined from paying to other State officers and -employees their legal and lawful salaries, and thereby the machinery of a sovereign State is thrown out of order. The consequences of such proceedings are bound to work a hardship, and in this case have worked a hardship, on many of the officers and employees of the State whose pay is involved and have interfered with their necessary duties in behalf of the State. I-f such cases are to be tolerated it is bound to result in hopeless confusion and disorganization of the State government.

There was no equity in the bill, and it should have been dismissed.