delivered the opinion of the court:
The defendants, Elbert S. Smith as Auditor of Public Accounts of the State of Illinois and Conrad F. Becker as Director of Financial Institutions of the State, appeal directly to this court from a decree of the circuit court of Cook County enjoining the Auditor from further custody of City Savings Association, requiring defendant Auditor to restore to the association certain special assistant Attorney General fees and other costs which had been paid and refusing to allow additional attorney fees.
The action was instituted by plaintiffs as officers of the association pursuant to section 7 — 12 of the Illinois Savings and Loan Act of 1955 (Ill. Rev. Stat. 1957, chap. 32, par. 852) to enjoin further custody by the Auditor and for the entry of such further order as the court may deem in equity and good conscience. Intervenors petitioned the court on behalf of shareholders for an order re-opening the association and retaining jurisdiction to implement whatever decree the court should enter. Intervenors also petitioned the court for an order directing repayment of fees and costs to the association.
In 1908 City Savings Association was chartered by the State of Illinois to transact business as a savings and loan association. From its creation the association transacted its business pursuant to applicable law, free from any written criticism by the State Auditor, with no questions or objections raised regarding its operations or valuations until April 16, 1957. Elbert S. Smith was elected Auditor of Public Accounts of the State of Illinois in November, 1956, and took office as such on January 14, 1957. He caused an examination of the association to be instituted on February 18, 1957, which concluded on March 8, 1957.
The report of such examination was placed in the mail addressed to the officers and directors of the association on April 16, 1957, and was received by the association on April 18, 1957. Accompanying the report of examination was a letter of transmittal criticizing certain practices and challenging certain appraisals and valuations of the association. The letter specified 30 days as the “reasonable” time required by statute within which the criticized practices were to be corrected, and the report bore on its face a legend that it was strictly confidential.
Late in the afternoon of April 23, 1957, one of the plaintiffs, C. Oran Mensik, filed a lawsuit against the defendant Smith as Auditor and others, which suit made no reference to and did not involve City Savings Association. Prior thereto on the same day the Auditor of Public Accounts released the report of examination and the letter of criticism to the Chicago press. On the following day, April 24, 1957, the association was open and doing business as usual up to the close of business at noon. At 5 :oo P.M. that day there appeared in one of the daily newspapers of Chicago a headline and article reading in part, as follows:
“FIND THREE NW SIDE SAVINGS FIRMS OF HODGE PAL SHORT 2 MILLION”
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“Smith said his examiners will be on hand Thursday morning. He said if a run develops, the State will step in and may invoke a by-law which requires 60 day notice for withdrawals over $500.00.
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“The confidential report noted that Mensik conducted his business in such a way ‘that the Auditor may well be justified in a finding that the business of the Association is being conducted in a fraudulent, illegal and unsafe manner.’ ”
On the morning following the news story, that is, on April 25, 1957, a run occurred on the association and a crew of examiners and a photographer previously sent by the Auditor were on hand. The photographer had been instructed to take pictures every half hour. At 12 ¡45 P.M. the Auditor took custody of the association. At that time there was in excess of $270,000 cash on hand and, in addition, $1,000,000 was available by a previously committed loan from the Federal Home Loan Bank, of which the Auditor was aware.
On April 30, 1957, plaintiffs filed their action as officers of the association to enjoin further custody. The court referred the matter to a master in chancery, who proceeded with hearings from June 17, to August 9, 1957, and filed his findings of fact and conclusions of law on August 22, 1957. Thereafter oral arguments were had before the court on objections to the master’s report.
On October 15, 1957, intervenors filed their petition for leave to intervene on behalf of stockholders, praying for reopening of the association and for retention of jurisdiction by the court, which intervention was allowed.
On December 6, 1957, the trial court entered a decree which adopted most of the master’s findings and specifically found that the association was solvent at the time the Auditor took custody and had remained so throughout the proceedings; that association earnings had been substantially in excess of dividend requirements at all relevant times; that no emergency existed prior to the run on the association on April 25, 1957; that such run was the direct result of the publication of the news article on April 24, 1957; that such publication was the direct consequence of the Auditor of Public Accounts furnishing the confidential report of examination to the newspapers on April 23> I957! that the Auditor expected that after publication by the press of such report an emergency would arise at the association and he prepared for such eventuality; and that the taking of custody by the Auditor prevented the officers and directors from complying with any of the requirements or correcting any of the practices objected to by the Auditor.
The decree of December 6, 1957, ordered that (1) the officers and directors of the association be permitted to immediately resume control of the operation and management thereof subject to continued jurisdiction of the court; (2) the Auditor of Public Accounts and all his employees, etc., be enjoined until further order of the court from custody and management of the association; (3) the Auditor account to the court for receipts and disbursements of the association during the period he was in custody thereof; (4) the Auditor return custody of the association to its officers and directors, subject to continued jurisdiction of the court; and (5) the officers and directors of the association, under the supervision of the court, undertake to perform certain specified undertakings with respect to conservation of assets, additional reserve requirements, management, officers’ escrow accounts, leases of space in the association building and other matters.
Defendant Auditor filed a motion to vacate the decree which was denied. Prior thereto, the Auditor had applied to this court for leave to file a petition for writ of mandamus which was denied June 13, 1957. On December 26, 1957, the Auditor filed in this court a motion for leave to file a second petition for mandamus which was denied. On December 31, 1957, the Auditor filed notice of appeal to this court from the December 6, 1957, decree, which appeal was dismissed as not being a final appealable order under section 50(2) of the Civil Practice Act. In September, 1958, defendant Auditor filed a third petition for writ of mandamus for an order to require the expunging of the December 6, 1957, decree, which petition was dismissed as moot on March 10, 1959, after entry by the trial court of a final decree on February 3, 1959. Defendant Auditor never appealed the interlocutory injunction to the Appellate Court.
Custody of the association was restored to its officers and directors pursuant to the decree of December 6, 1957. From time to time plaintiffs made reports to the master in accordance with the decree. Such reports showed complianee with all requirements except those relating to procuring insurance of share accounts which the court had recommended but had not made mandatory, and the disposition by plaintiff Mensik of his stock holdings in the First Guarantee and Chicago Guarantee Savings associations. Defendant Auditor was given the opportunity to file objections to such reports and the master from time to time imposed further requirements as a result thereof. In the period between restoration of custody on December 6, 1957, and the entry of final decree on February 3, 1959, the association received substantial new saving deposits, paid dividends to its shareholders for 1957 and 1958, distributed Christmas savings accounts to its shareholders, permitted depositor withdrawals of $5,000,000 and paid $1,000,000 on its loan from Federal Home Loan Bank.
On July 1, 1958, defendant Becker, as Director of Finance, succeeded to the powers and responsibilities of the Auditor of Public Accounts under the Savings and Loan Act, entered his appearance herein and was added as a defendant. Subsequent to restoration of custody, both Auditor Smith and Director Becker made further examinations of the association. Defendant Becker granted the association permission to sell $6,500,000 of mortgages at par to raise funds for further mortgage loans, and they were so sold.
Prior to entry of the final decree, intervenors had filed a petition for entry of an order directing the defendant Auditor to repay to the association certain fees and disbursements withdrawn from the association during his custody. After hearing, the court on December 24, 1958, directed the defendant Auditor to pay over to the association as improper disbursements of association funds during custody $45,748.40 legal expenses, $5,000 master’s fees, $5,264.50 court reporter fees, and $7,665 accounting expenses. The sum of $28,838.75 in fees paid into the State treasury for examination and custody was not disturbed. A petition by defendants for additional counsel fees in the amount of $73,000 was thereafter presented and denied.
On February 3, 1959, the court entered a final decree which, after adopting the findings of fact and conclusions of law made in the decree of December 6, 1957, ordered and adjudged: (1) that the defendants’ motion to return custody of the association to the Auditor or Director of Financial Institutions be denied; (2) that defendants’ motion for allowance of fees and expenses to the Auditor be denied; (3) that defendants’ motion to vacate the order of December 24, 1958, directing the Auditor to repay to the association amounts improperly disbursed by him be denied; (4) that interveners’ motion to vacate an order directing the association to pay certain master’s fees be denied; (5) that the master’s reports on proceedings subsequent to the decree of December 6, 1957, and findings of substantial compliance therewith be approved and defendants’ exceptions and objections thereto be denied; and (6) permanently enjoined the defendants and all of their employees, agents, etc., from taking custody and management of the association on the basis of any examination or act which transpired prior to December 6, 1957, the date of the decree requiring the defendant to return custody of the association to its officers and directors.
Both the master and trial court, from substantial evidence, found that the Auditor’s report of examination was inaccurate and misleading in that (a) the appraisal values adopted were not true appraisal values and could not be accepted in the face of appraisal reports by four experienced and independent appraisers; and (b) the schedule of loans subject to comment was inaccurate and misleading in that- it presupposed and assumed certain facts which were incorrect and untrue. Based upon the appraisals and other evidence the court also found (a) an excessive valuation on the books of the association building of $72,210; (b) that the book value of the building was slightly in excess of 2% of net assets, although section 5 — 9 of the Illinois Savings and Loan Act of 1955 permitted up to 5% of net assets for its office building without prior approval of the Auditor; (c) a doubtful value of $156,385.28 in total loans outstanding of $31,703,685.41, or 10% of the doubtful value assessed by the Auditor; (d) that the Auditor did not require kindred associations to establish any reserve for loss on United States Treasury bonds, and therefore no loss thereon as indicated by the Auditor should be allocated; and (e) the doubtful value of association assets on February 16, 1957, was $228,595.28, covering which there was a net reserve of $1,196,171.05.
In its decree of December 6, 1957, the trial court directed the officers and directors of the association, among other things, to undertake (a) to make all delinquent loans current in 90 days or institute foreclosure proceedings thereon; (b) to require further collateralization of loans by multiple borrowers; (c) to reduce book value of the office building; (d) to reduce the ratio of operating expenses to gross operating income to 25 %; (e) that reserves be equal to not less than 5% of total liabilities; (f) that plaintiff Mensik relinquish all management and control of his two other savings and loan associations; f g) that the association attorney refrain from serving conflicting interests and pay fair rental for office space in the association building; (h) that an officer’s escrow account be discontinued; (i) that unfavorable leases with a Mensikowned safety deposit box company, insurance agency, and currency exchange be renegotiated; (j) that payment of employees’ salaries in the insurance agency and currency exchange by the association be discontinued; (k) that an existing pension plan be suspended and referred to the master for modification and conformation to certain standards; and (1) that efforts be made to obtain insurance of withdrawable shares. The final decree found compliance with all except two of these requirements. As to Mensik’s required divestiture of management and control of his two other associations the court found Mensik- had undertaken to divest himself thereof, and, as to the insurance of shares, the court found that there had been unsuccessful efforts to acquire such insurance but -that the court’s prior order in respect thereto had been directory and not mandatory.
The defendants in appealing to this court from the final decree urge as grounds for reversal that (a) the trial court assumed and usurped executive power contrary to article III of the Illinois constitution; (b) defendants were deprived of procedural due process contrary to the Illinois and United States constitutions; (c) the taking and retention of custody by the Auditor was justified and proper; (d) the trial court acted without jurisdiction in allowing prosecution of the case by unauthorized persons; (e) the trial court had no jurisdiction to order a reference to the master; (f) the trial court erred in allowing intervention; and (g) the trial court erred in ruling on fees and expenses.
The plaintiffs’ position is, first, that defendants have failed to state a case cognizable on appeal because they are not parties aggrieved and because there is no justiciable controversy of constitutional construction, and, second, that the decrees of the trial court were constitutional, proper and appropriate in every respect.
The intervenors in their brief contend that this appeal is moot except as it relates to fees; that the trial court properly enjoined custody; that the question of jurisdiction under the interlocutory decree is not presented by this appeal but that such decree was within the court’s power and authority and required by the facts.
The first issue which must be answered is the question of this court’s jurisdiction on direct appeal. The defendants’ basic and primary contention throughout this litigation has been that the trial court assumed and usurped executive power which was vested in the defendants contrary to article III of the Illinois constitution. Such contention was raised by them and argued at the first opportunity and consistently urged by them throughout the proceedings. They argue that it was the function and duty of the defendants, and not the court, to determine what corrective measures were necessary in the light of existing conditions and, further, to determine at a later time whether the corrective measures were carried out. The substance of such argument is that the trial court had no jurisdiction or power to decide such questions by virtue of the fundamental constitutional provision pertaining to the separation of executive, legislative and judicial powers contained in article III of our State constitution. The answer to this contention goes beyond a mere construction of the statute in question, although a construction of the statute in deciding the case may be necessary if this court has direct appellate jurisdiction. The question on this issue is whether or not the court exercised executive powers, and, if so, was such action a violation of the constitutional separation-of-powers clause. If such decree was unauthorized and without the court’s jurisdiction, the Auditor has certainly been aggrieved and has a right to review, even though the course of litigation may have rendered moot many of the issues other than the portions of the decree concerning fees and costs. It is our opinion that this court has jurisdiction on direct appeal in this case because of the alleged usurpation of executive power by the judiciary. Saxby v. Sonneman, 318 Ill. 600; People ex rel. Elliott v. Covelli, 415 Ill. 79; McQuade v. City of Joliet, 293 Ill. 515; West End Savings & Loan Ass’n v. Smith, 16 Ill.2d 523.
The general statute involved in this case is the Illinois Savings and Loan Act of 1955. Ill. Rev. Stat. 1957, chap. 32, pars. 701-944.
In addition, the defendants’ claim that they were denied procedural due process of law under both the Illinois and Federal constitutions would require this court to take jurisdiction on direct appeal. First Federal Savings and Loan Ass’n v. Loomis, (7th cir.) 97 F.2d 831.
It would seem, furthermore, that the State may have a direct and substantial interest in the outcome of the suit, in that there is a claim that the attorneys for the defendants were improperly paid from association funds. If such contention is sustained, these fees may come from State funds. People ex rel. Hamilton v. Cohen, 355 Ill. 499; State Board of Agriculture v. Brady, 266 Ill. 592.
The initial and general responsibility for supervision under the Illinois Savings and Loan Act was vested before July 1, 1958, in the Auditor of Public Accounts and in the Director of Financial Institutions thereafter. Such supervisory authority delegated by the legislature is an executive function — the execution and administration of the law. One of the primary questions is whether the exercise of such executive power is exclusive and free of any checks, restraints or control by the judiciary, or whether it is subject to judicial limitations and control. An examination of the statutory provisions and intentions thereby expressed in the Savings and Loan Act is pertinent and necessary.
The first seven sections of article 7 of the act spell out the Auditor’s general supervisory powers over savings and loan associations as to the making of regulations, examinations, audits, reports, information to Federal authorities, and procedure upon the impairment of guaranty and permanent reserve capital. Section 7 — 8 of the act pertains to the Auditor’s authority to take custody. It first spells out five circumstances under which he "may in his discretion take custody. The last paragraph of such section spells out that unless an emergency exists which may result in loss to members or creditors and requires that he take custody immediately, the Auditor shall first given written notice of the conditions criticized and state a reasonable time in which corrections may be made. Section 7 — 9 spells out the purposes of taking custody and 7 — 10 sets forth the Auditor’s powers during custody. It should be noted that section 7 — 10 provides that the Auditor without appointment of a receiver but upon order of a court of competent jurisdiction, or with concurrence of two thirds of the directors, may make investments, agreements for payment of liabilities, borrow money, sell and assign assets, and doubtful debts, and give guaranties. Section 7 — 11 relates to custody of insured associations.
Section 7 — 12 pertains to notice of custody and action to enjoin. Upon the filing of a complaint within 30 days to enjoin further custody, and a rule to show cause thereon, the court is specifically authorized, if it finds that grounds for custody did not or do not then exist, to enter an appropriate order in accordance with the findings of fact, or an order enjoining the Auditor or any appointees acting under his direction from further custody.
Sections 7 — 13 and 7 — 14 concern the segregation of collections during custody and redelivery of possession. Section 7 — 15 limits custody by the Auditor to six months unless extension thereof is authorized by two thirds of the directors or by order entered in a court of competent jurisdiction.
Section 7 — 16 directs that the reasonable expense of any examination or investigation or custody shall be borne by the association. Sections 7 — 17 through 7 — 19 provide for the appointment, organization and powers of an advisory board. Section 7 — 20 authorizes any person who deems himself aggrieved by any action of the Auditor to file a petition with the circuit court setting forth the subject matter of the grievance, and the matter shall be tried de novo by the court. This latter clause has been held void as in violation of the separation-of-powers clause in West End Savings & Loan Ass’n v. Smith, 16 Ill.2d 523.
Subsequent articles in the act provide for reorganization, voluntary liquidation, and involuntary liquidation of savings and loan associations. In the event of involuntary dissolution a receiver appointed by the Auditor (now Director) liquidates the association under the orders and supervision of a court.
From all of the statutory provisions concerning supervision of savings and loan associations by the Auditor (now Director) it clearly appears that the legislature vested him with broad initial supervisory, regulatory and custodial powers, but not sole and unlimited powers. Section 7 — 8 of the act authorizes the Auditor to take custody only after notice and reasonable time for the association to make corrections, unless an emergency exists which may result in loss to members or creditors. Even then such custody may be challenged in the circuit court by an action to enjoin custody, and the court is specifically authorized to enjoin further custody or enter an appropriate order in accordance with the findings of fact. The statutory language here used, clearly and on its face, contemplates the possibility of the facts warranting an order other than one simply granting or denying the injunctive relief, otherwise there would be no reason for or meaning to be attributed to such alternative powers. The article of the act concerning supervision also provides for and contemplates a circuit court authorizing continued retention of custody beyond six months, authorizing certain acts of the Auditor while he is in custody, and reviewing de novo every questioned act of the Auditor during custody. This court has heretofore suggested that if the legislature did not accord the right to obtain judicial review and control of the Auditor’s conduct the Savings and Loan Act would be constitutionally suspect. Father Gordon Building and Loan Ass’n v. Barrett, 370 Ill. 536; People ex rel. Barrett v. Logan County Building and Loan Ass’n, 369 Ill. 518.
From a consideration of the record, we conclude that the court did not usurp the Auditor’s right to initially exercise executive authority in the execution and administration of the Savings and Loan Act, but exercised its clearly vested authority to check, restrict and prevent what it considered from the facts to be an arbitrary exercise of such executive authority, granted by statute and as part of its general equity powers. Moore v. Gar Creek Drainage District, 266 Ill. 399, and cases cited.
The recent decision of this court in West End Savings & Loan Ass’n v. Smith, 16 Ill.2d 523, is not contrary to this conclusion. There the Auditor made a determination, after petition and hearing of evidence, that permission to change location of an association should be granted. We held that section 7 — 20 of the act providing for a trial de novo in court of any action of the Auditor complained of was unconstitutional as violating the separation-of-powers clause. At the same time, it was said, at page 525, “where the agency’s determinations are made conclusive, constitutional objections are held to be without merit, providing that recourse to the courts is available in cases of oppression or abuse of discretion.”
Such holding in the West End case does not apply to the situation in the instant case. Plaintiffs have not appealed from an administrative board decision entered after notice and hearing. No such procedure prior to taking custody is provided by the act and no regulations provide therefor. Defendants’ action was taken ex parte without an opportunity to be heard and to present evidence. The court in this case is not hearing evidence in addition to that heard by an executive body, or reweighing the evidence, or substituting its judgment for that of an executive. Rather in the instant case the court is hearing, in a proceeding and on pleadings provided for by the act, whether the defendants’ order taking custody was lawful and reasonable, or an abuse of discretion, and the questions presented concern substantial property rights of which the court is given jurisdiction by the statute. After determining the facts as to illegality or unreasonableness, the court had specific statutory power to enter further appropriate orders.
From a consideration of this record we are further of the opinion that the trial court properly found from the evidence that the Auditor abused his discretion in taking custody and enjoined his further custody. The Auditor submitted to the association his letter of criticism and gave 30 days in which to make corrections. The conditions criticized as a practical matter of reality could hardly be corrected in 30 days. The report and letter of criticism were received on April 16, 1957. On April 24, 1957, the Auditor released the documents for publication, in spite of the fact that it bore a legend in bold face type that it was “Strictly Confidential.” Section 7 — 6 of the act limits the giving of the report of examination to the Federal Home Loan Bank or to the insurance corporation insuring the association’s shares.
The Auditor, in releasing the report to the press, prompted the news article, which in turn triggered the run, creating the so-called emergency. The proof developed that the association was solvent at the time the Auditor took custody and has remained so. The findings of fact do not permit doubt that the court’s decree enjoining further custody was an appropriate order.
However, the court also found certain matters to exist that required correction. Therefore the court imposed upon the officers and directors the obligation to correct the deficiencies and retained jurisdiction to insure compliance. The language found in the act which authorizes the court to enter “an appropriate order in accordance with the findings of fact” indicates that the legislature intended the court to exercise its historic powers of equity to shape its decree so as to do substantial justice to the parties.
Section 7 — 12 of the act empowered the court to enjoin a wrongful custody of the Auditor, and only a court of equity can enjoin. (Fletcher v. Tuttle, 151 Ill. 41.) It is manifest from the very terms of the act that the court was acting as a court of equity. Having jurisdiction as a court of equity, and having heard the Auditor’s attempted justification of his conduct, the court patently had jurisdiction to enter a decree adjudicating all the matters in controversy to avoid multiplicity and to do full and complete justice. First National Bank v. Bryn Mawr Beach Bldg. Corp. 365 Ill. 409; Weininger v. Metropolitan Fire Ins. Co. 359 Ill. 584.
Defendants further argue that the master’s and court’s findings of compliance by plaintiffs with the court’s decree of December 6, 1957, without granting defendant a hearing on objections to the master’s reports of compliance, denied defendants procedural due process in violation of the State and Federal constitutions. Although the Auditor had previously been ousted from custody, he advances this argument as a claimed trustee of the properties and interests of the individual shareholders. He asserts no rights deriving from his own individual capacity. In our opinion the defendants as State officers have no property interest in these matters complained of sufficient to permit them to assert this claim. Governmental bodies or State agencies are entitled to constitutional guaranties of due process only when their property rights are involved. People ex rel. Royal v. Cain, 410 Ill. 39; People v. Deatherage, 401 Ill. 25; People ex rel. Curren v. Wood, 391 Ill. 237; Dunne v. County of Rock Island, 283 Ill. 628.
Defendants further urge that the trial court was without jurisdiction because the suit was not instituted by proper parties. The suit was instituted by the president, secretary and vice-president of the association, being a majority of its statutory officers and two of whom were directors. Section 7 — 12 of the act requires the Auditor to mail notice of custody “to the president or secretary and not less than two directors.” The section then provides that if the contention is made that custody is illegal “the directors or officers of the Association” may file an action. The section must be construed in its entirety. It seems to be the intent that the officers and directors authorized to bring the suit may be the same persons as those upon whom notice of custody is served. There is nothing in the statute that requires all of the officers or all of the directors, or a majority of either group, to maintain the action. There is no statutory support for defendants’ contention in this respect.
Defendants further contend that tne referral to a master in chancery was beyond the court’s jurisdiction because this was a special statutory proceeding and not a chancery action. From what has heretofore been said, section 7 — 12 of the act does not designate the mode of trial but does designate the remedy as injunctive and other appropriate action, and thereby gives the court equity jurisdiction squarely within the purview of the Civil Practice Act. Under section 61 of the Civil Practice Act reference to the master was proper. Ill. Rev. Stat. 1957, chap. 110, par. 61.
Error is further argued by the defendants because of the intervention by stockholders allowed by the trial court. The intervention statute (section 26.1 of the Civil Practice Act) provides that anyone shall be permitted as of right to intervene whenever the representation of his interests by existing parties may be inadequate and he may be bound by any judgment, decree or order entered in the action. It also permits intervention in the discretion of the trial court. This section was designed to liberalize intervention practice, and particularly to relax the requirement that the intervenor have a direct interest in the suit. (Dowsett v. City of East Moline, 8 Ill.2d 560.) The shareholders’ intervening petition alleged that they represented 7,000 shareholders, that the shareholders would or might be bound by the judgment which would affect them and that there was no one in the case directly representing their interests. The intervening petition requested the court to retain jurisdiction to assure correction of doubtful management practices. It was opposed by both plaintiffs and defendants. Defendants do not show in what manner intervention unduly complicated or delayed the case nor do they show any prejudice by reason of the fact that intervention came after the reference to the master. We are of the opinion that the trial court did not abuse its discretion in permitting intervention.
Finally the defendant argues that the trial court erred in its order of December 24, 1958, directing the defendant Auditor to repay to the association the total amount of $63,677.90 representing attorneys’ fees, master’s fees, court reporters’ fees and accountants’ fees paid during the period of custody.
No question as to the reasonableness of any of these fees is before this court.
The Illinois Savings and Loan Act evidences an intention by the legislature to provide a comprehensive plan for the supervision of savings and loan associations generally and for the liquidation of particular associations under certain circumstances. Section 7 — 16(a) of that act, (Ill. Rev. Stat. 1957, chap. 32, par. 856,) provides that the reasonable expense of any examination or investigation or custody shall be borne by the association. Again, section 10 — 4 of that act, (Ill. Rev. Stat. 1957, chap. 32, par. 924,) provides that all expenses incurred by reason of the examination, custody and receivership shall be paid by the association. No attack is made upon the constitutionality of either of these statutes and in view of our decision in People v. Illinois Toll Highway Commission, 3 Ill.2d 218, the statutory provisions for the payment of fees from association funds is not, in and of itself, unconstitutional.
The question here presented was, under similar circumstances and under a statute containing similar provisions, before the Supreme Court of California in Evans v. Superior Court, 14 Cal.2d 563, 96 P.2d 107, and there the Supreme Court of California held that fees and expenses incurred during a period while an injunction suit was pending against the commissioner, seeking to enjoin the taking of possession of the association, were, by virtue of the provisions of statutes similar to ours, properly payable out of the association funds, the court stating, at page 112, (P.2d) : “Respondents apparently concede that Section 13.16 of the act expressly empowers the Commissioner to employ assistants such as special counsel, accountants and appraisers, and to compensate such assistants out of the funds of an association in his hands under certain circumstances but it is respondents’ claim that the commissioner will have no such power here until the main injunction suit may have terminated in his favor and until he max-have determined to proceed with the liquidation of said association. We do not believe that this claim may be sustained.”
We feel that the fees and expenses which the court below ordered the defendant to refund to the association were expenses properly within the purview and contemplation of section 7 — 16(a) and section 10 — 4 of the Illinois Savings and Loan Act and were expenses chargeable to the association.
The court was in error in his order directing the defendant to repay to the association such fees and expenses, and that portion of the court’s order in which the defendant auditor is ordered to repay to the association certain fees and expenses therein enumerated is reversed.
In all other respects the decree is affirmed.
A ffirmed in part and reversed in part,