Concurbing Opinion
Tolson, C. J.Respondent has urged that any award made in this case would violate the Constitution, which prohibits State officials from contracting an indebtedness in excess of the amount appropriated by the Legislature. This rule of law was announced in Fergus vs. Brady, 277 Ill. 272, and, of course, would be a complete bar to the claim, if, in fact, there was no appropriation made by the Legislature to pay such a claim.
The Court will take judicial notice of the fact that in 1955 the Legislature made an appropriation for the office of the Treasurer of the State of Illinois for the biennium. We have found from the evidence that on January 3, 1956 the State Treasurer engaged the services of claimant, and, on that date, there remained in his appropriation the following sums:
1. Contingent Fund ..............$ 20,000.00
2. Contractual Fund .............. 103,235.74
We have previously held in the case of Schutte and Koerting, Et Al, (Consolidated Cases) vs. State of Illinois, 22 C.C.R. 591, that a claim would be allowed if at the time of the contract there were sufficient funds remaining unexpended in the proper appropriation to pay for the same.
In the light of this evidence, it is apparent that the State Treasurer was obliged to secure separate counsel, as the Attorney General was unable to represent him. There were sufficient funds in the contractual account, and, if need be, funds could have been transferred from the contingent fund to pay this claim. An award should be made in this case.