join, dissenting:
Mr. Justice Kluczynski, Mr. Justice Crebs and I are of the opinion that the judgment of the appellate court should be affirmed.
The majority apparently reverses that judgment because it feels that “the public interest will not be served in permitting persons, without limitation, to institute actions of this nature against public officials when the Attorney General has declined to act.” By this means the majority has avoided the necessity of determining the legality of the conduct of the defendants and their right to retain the profits they realized by that conduct. If the plaintiff taxpayer is correct in his legal theory, and can prove the facts alleged, the State of Illinois would recover a sum well in excess of $300,000. The facts alleged are admitted by the defendants’ motions to dismiss, and in our opinion the public interest clearly requires that the merits of this claim be decided. Instead, the majority avoids that important decision by giving the Attorney General the exclusive right to bring this action — a right which he has not claimed and does not want.
What was said in Paepcke v. Public Building Com. (1970), 46 Ill. 2d 330, 341, is pertinent here:
“In Droste v. Kerner, 34 Ill. 2d 495, 504, this court held that an individual taxpayer or property owner, in the absence of statutory authority conferring that right, had no standing in equity to enjoin an alleged misuse of property held in trust for the public unless he alleges and proves that he will suffer special damage, different in degree and kind from that suffered by the public at large. There was a dissent in the Droste case in which it was pointed out that the alleged cause of action in such cases is based upon the individual’s status as a taxpayer and that it is his equitable interest, as a taxpayer, in the public property which he claims, is being illegally disposed of that determines his standing to maintain the action; that his right to sue does not depend on any injury to his property and that he should not be forced to rely solely upon the efforts of public law officers for the protection of public rights. Authorities were cited to support this position and distinctions were observed as to the authorities relied upon by the majority. Upon serious reconsideration of this question we now believe that portion of the opinion in Droste dealing with the right and standing of the plaintiff to sue should be overruled, as should any other former decisions of this court holding that a citizen and taxpayer has no right, in the absence of statute, to bring an action to enforce the trust upon which public property is held unless he is able to allege and prove special damage to his property. If the ‘public trust’ doctrine is to have any meaning or vitality at all, the members of the public, at least taxpayers who are the beneficiaries of that trust, must have the right and standing to enforce it. To tell them that they must wait upon governmental action is often an effectual denial of the right for all time.”
The majority acknowledges that a host of decisions support the proposition that a taxpayer has standing to maintain an action to recover public funds (or public lands) that are alleged to have been “misappropriated, misapplied or wrongfully retained.” But it seems to say that the title to the funds or property in question must be undisputed if the action is to be maintained. That has never before, so far as we are aware, been held to be an essential prerequisite to such an action, and no reason or authority is stated to support the imposition of such a requirement.
The defendants argue that a legislator is not a fiduciary. They say:
“The cases cited by the Appellate Court in its opinion, U. S. v. Drumm, 329 F.2d 109; Williams v. State, 85 Ariz. 34; Jersey City v. Hague, 18 N.J. 584; and U. S. v. Carter, 217 U.S. 286, all involved government employees or executive officers, and not Legislators.”
We reject this proposition, which amounts to an assertion that legislators may retain amounts paid to them as bribes, while “government employees and executive officers” can not.
That the value of the stock sold to the defendants was not alleged to be any greater than the one dollar per share which they paid, and that no agreement by Everett to repurchase was alleged, are irrelevant. The complaint alleges that the defendants had power and influence with respect to the passage of legislation directly affecting the operations and profitability of thoroughbred and harness racing in Illinois because both kinds of racing were licensed, regulated, and taxed by statutes, the provisions of which are summarized in the complaint. By acquiring the stock with the knowledge that Mrs. Everett made it available to them so that her racing businesses would profit from their power and influence, the defendants put themselves in a position where they could, by their legislative action — or inaction — enhance the value of their stock. The complaint alleges that the stock was repurchased in a very short time at prices that yielded the defendants extraordinary profits. And of course a fiduciary is liable for the income and gain on property he acquires in breach of his duty. (See Restatement of Agency (Second) sec. 407 (1958).) A public officer is not to be held to a lower standard of morality than a private citizen.
The fact that the complaint does not allege that the defendants’ “failure to disclose” violated any statute or other duty is immaterial. It didn’t have to make such an allegation, although it may have been thought desirable to meet an anticipated defense of laches. In any event it is certainly a reasonable inference that if the defendants’ financial stake in the racing enterprises was known, their power and influence in the State legislature would have been eliminated. Secrecy was essential to the success of the plan.
One of the commonest forms of corruption is payment for “protection.” It involves law enforcement officers, but it does not involve payment for any action taken by them. It probably arises most frequently in connection with gambling and prostitution, and the protection payments are made for inaction as well as for action. To put the problem of the present case in a somewhat different context, the judges of a reviewing court, who buy a security not generally available, but which is offered to them with the expectation, made known to them, that they will use the power and influence of their offices to the offerors’ advantage, certainly could not retain their profit. This would be true even though no case involving the offeror came before them for decision. And of course the case with respect to these defendants is quite different, for there was actually legislation pending during all of the sessions referred to in the complaint, and even if there were not, these defendants had the power to initiate legislation — a power which judges do not have.
In United States v. Isaacs (7th Cir. 1974), 493 F.2d 1124, cert. denied, 417 U.S. 976, 41 L. Ed. 2d 1146, 94 S. Ct. 3183, the Federal criminal case against Theodore Isaacs and Otto Kemer, which also involved the distribution by Mrs. Everett of stock in her racing enterprises, the Seventh Circuit was confronted with the contention that the Illinois bribery statute (Ill. Rev. Stat. 1973, ch. 38, par. 33—1) required that some particular act be charged. The court rejected that claim, stating:
“Subsection 33 — 1(d) provides that bribery occurs when property is accepted by a public official with knowledge that it is offered with intent to influence the performance of any act related to his public position. No particular act need be contemplated by the offeror or offeree. There is bribery if the offer is made with intent that the offeree act favorably to the offeror when necessary.” (493 F.2d at 1145.)
In Commonwealth v. Lapham (1892), 156 Mass. 480, 484, 31 N.E. 638, 639, the Supreme Judicial Court said regarding a similar contention made in an appeal from a bribery conviction:
“Nor is it necessary in an indictment under the above mentioned section of the statute to aver that the corrupt intention to influence the act, opinion, decision or judgment of the inspector was in relation to any specific and particular matter then pending before him, or which was then expected to come before him. It is enough to aver a corrupt intention so to influence him in any matter which may then be pending, or which may by law come or be brought before him. If for example an executive, legislative or judicial officer is bribed corruptly to favor a particular person in any and all matters affecting that person which may come before such officer, without specification or knowledge of the particular matters likely to come up, the statute is broad enough to include such a case. A narrower construction of a similar statute has been adopted in Alabama, but we cannot follow it. Barefield v. State, 14 Ala. 603.”
In our view it would be anomalous to hold that if Mrs. Everett had concluded a bargain with the defendants on a retail basis, whereby they would support or oppose a specific bill affecting racing {e.g., a bill changing the amount of a tax on racing), an action for restitution would lie, but that if she bargained with defendants, as she did here on a wholesale basis, to secure their general favor on whatever matter might come up affecting her racing interests or racing interests in general, it would not.
It has been suggested that what happened here resembles the giving of campaign contributions, and from this resemblance the conclusion is drawn that the defendants in this case should be permitted to retain their profits. We do not agree.
The present case does not involve campaign contributions, and the conduct alleged in the complaint is not justified by the fact that campaign contributions are sometimes subject to abuse. Political contributions are tolerated because it is felt that without them only the wealthy could afford to be candidates for public office, not because they are inherently desirable. Such contributions are difficult to control and are obviously subject to abuse. The answer to thoses abuses lies in more effective control of contributions, and not in the lowering of standards which govern the conduct of public officers to the lowest possible common denominator. Efforts to bring them under control are being made both nationally and in the States by requirements of disclosure and accounting, as well as by limitations on amounts and by financing through tax deductions.