dissenting:
This is a taxpayer’s suit. Plaintiffs, Illinois citizens of Rock Island County, challenge the authority of the South Moline Township Eoard, the defendant, to pay its government officers lump-sum expense allowances regardless of the amount of actual expenditures incurred in connection with their official duties. A constitutional question is involved. My colleagues validate the board’s power to make such remittances, thereby reversing the trial court. I dissent.
On March 1, 1977, the board determined the following salaries and expense accounts for each of its officers:
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Elections were held on April 5, 1977. The new officers were sworn in on April 25, 1977. A year later the board passed two resolutions. The first required its officers to itemize their automobile expenses at $.17 per mile. The second motion authorized payment of such expenses monthly with itemizations to be submitted every two weeks. On October 16, 1979, the lump-sum allowances, without itemization for actual expenses, were reinstated by board resolution.
Plaintiffs contend the payment of lump-sum or flat-rate expenses without an accounting violates the Illinois Constitution of 1970 (Ill. Const. 1970, art. VII, sec. 9(b), which says: “An increase or decrease in the salary of an elected officer of any unit of local government shall not take effect during the term for which that officer is elected.” The trial judge concluded the board was merely increasing its officers salaries by means of unaudited expense accounts, thereby violating such provision. The officers were ordered to reimburse the township for those amounts not actually incurred for expenses but allocated by the board to such accounts.
My colleagues conclude the March 1, 1977, board resolution authorizing lump-sum expense accounts was constitutional since the Board intended the accounts to serve as compensation. And, since the allotments for such “compensation” were made prior to their election, no constitutional violation occurred. This reasoning ignores basic business accounting principles, as well as Illinois common law.
An expense is an outlay or disbursement for costs incurred in connection with an employee’s trade or business. It is actually incurred when the employee is indebted for its cost from his own individual funds. An expense is not actually incurred unless money is paid by, or credit is extended to, the debtor. A salary, on the other hand, is a fixed amount payable at specified intervals for personal services rendered. An account for expenses is not a salary. Nor is the opposite true. They are separate accounts on any business ledger. If an employee need not account for his expenses, that amount of money allocated to his expenses is nothing more than additional remuneration for his personal services. Otherwise, it is a gift. To conclude differently is merely artifice. The board’s March 1, 1977, resolution fixed the officers’ salaries and their individual expense accounts. These are separate, identifiable accounts. The resolution says, or intimates, nothing whereby such accounts are to be deemed interchangeable. Nor should we infer such a result as defendant insists we should. To say both accounts are to be deemed compensation reads into the board’s resolution something which is not there.
This constitutional proviso does not directly address the salaries or expenses of local government officials. Its concern is the compensation of such an officer. The compensation of such a township officer may or may not include the expenses of his office. (See Jennings v. Fayette County (1881), 97 Ill. 419, 422.) Accordingly, a township board may fix one of its officials’ compensation so it will include the expenses of his office as well as the personal services of the officer. (E.g., Kilgore v. People (1875), 76 Ill. 548.) The constitution only prohibits compensation from being increased or diminished during the official’s term of office. Expenses may be changed from time to time by a county or township board since the necessities of the official’s office rarely remain constant. Briscoe v. Clark County (1880), 95 Ill. 309, 311-12.
But none of these cases stand for the proposition that expenses which are not actually incurred by a local government officer can be paid as a salary, where no board resolution allowing this exists. Such are not expenses at all. Our Illinois Supreme Court so indicated 80 years ago:
“If the compensation, including the expenses, is fixed at one sum, the officer is entitled to retain that amount, if it is paid by the fees of his office. If it is fixed in separate sums — one sum for the compensation of the officer and another sum for the expenses — the officer can only retain out of the fees collected a sufficient sum to reimburse him for moneys actually paid out for reasonable and necessary expenses of his office. He may retain the whole compensation, but cannot retain what is either unnecessary for expenses or what is not actually paid out for services rendered.” (Coles County v. Messer (1901), 195 Ill. 540, 545.)
The board could not pay out sums to township officials for expenses not actually incurred. But it did. When it did, it increased the compensation of each officer above the amount of his or her previously determined salary. The board had no authority to subsidize its officers’ salaries in such a fashion. Thus, it ran afoul of the constitutional proscription. Those moneys for expenses not actually incurred merely increased each officer’s salary and therein his compensation. If expenses were not actually incurred they should have been returned to the township’s treasury. They could not be paid as salaries without increasing each official’s salary. Therefore, those amounts which were paid for expenses not incurred by Board officers after they took office must be accounted for and remitted to the township treasury.
For the reasons stated, I would affirm the trial court.