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Turkovich v. Board of Trustees

OPINION FILED MAY 23, 1957.

STEPHEN TURKOVICH ET AL., APPELLANTS,

v.

THE BOARD OF TRUSTEES OF THE UNIVERSITY OF ILLINOIS ET AL., APPELLEES.



APPEAL from the Circuit Court of Sangamon County; the Hon. DEWITT S. CROW, Judge, presiding.

MR. JUSTICE HOUSE DELIVERED THE OPINION OF THE COURT:

This is a taxpayers' suit by Stephen and Betty Turkovich and Dahlen's Drug Stores, Inc., to enjoin the Board of Trustees of the University of Illinois from spending State funds for the construction, equipment and operation of a television station. The Auditor of Public Accounts and State Treasurer are joined as defendants, and plaintiffs seek to restrain them from paying out funds from the State Treasury for such purposes. Plaintiffs appeal from the decree of the circuit court of Sangamon County dismissing the complaint for want of equity. This court has jurisdiction since the constitutionality of a statute is involved and the case relates to the public revenue.

Plaintiffs contend that there is no valid appropriation for the purpose of constructing and operating a television station and that disbursement of funds under the appropriation acts involved is in violation of section 17, article IV, of the Illinois constitution. They further assert that if such acts be construed to permit such expenditure, then their failure to specify the purposes for which the appropriations were made violates section 16, article V, and section 1, article IV, of said constitution.

Before going into the merits, we must consider the defendant trustees' contention that this is not a bona fide taxpayers' suit. It is charged that the Illinois Broadcasters Association, not a taxpayer, is the real party in interest and that the plaintiffs are only nominal parties.

This suit was instituted by Stephen Turkovich, a restaurant operator. Later his wife Betty Turkovich, who was a partner in his business, was added as a plaintiff. Subsequently, after issue had been joined save for a pending motion to strike portions of the answer, the corporate plaintiff joined the two individual plaintiffs.

The only pertinent testimony in the record on this point is that of Turkovich and one Rollin G. Engman, president and general manager of Dahlen's Drug Stores, Inc. Engman testified that he had read of the Turkovich suit; that he was in sympathy with the objective of same; that he discussed it with one Johnson who was in the television and broadcasting business and was also a stockholder and director of his (Engman's) corporation; that Johnson inquired if his corporation would like to go along with Turkovich in the suit; that witness signified his willingness to do so and did join as a plaintiff. He further testified that his board of directors authorized him to proceed (which is borne out by the corporate records) and that he retained the same counsel as Turkovich at his corporation's expense.

The testimony of Turkovich was of much the same import. After reading of the proposed construction in the public press, he asked one Angus Pfaff what he thought of the University's proposal. Pfaff, who was a member of the Broadcasters Association, agreed that if Turkovich would file a taxpayer's suit the association would pay the costs and attorneys' fees.

The argument on this point by counsel for the Board of Trustees is persuasive. The Illinois Broadcasters Association violently opposes the operation of a University television station. Its representatives attempted to get adverse legislation passed, appeared before the defendant board's trustees in opposition and exerted influence upon the plaintiffs to file this suit. Its interest is apparent since the expenses of litigation are being borne for Turkovich. On the other hand, it is conceded that the plaintiffs are taxpayers. The testimony of Turkovich and Engman to the effect that they are deeply interested, the latter to the extent of spending his company's funds for the litigation, is undisputed.

It is an established rule in this jurisdiction that a taxpayer can enjoin the misuse of public funds, based upon taxpayers' ownership of such funds and their liability to replenish the public treasury for the deficiency caused by misappropriation thereof. Fergus v. Russel, 270 Ill. 304; Krebs v. Thompson, 387 Ill. 471; Barco Mfg. Co. v. Wright, 10 Ill.2d 157.

We have held that where the filing of a suit is for the exclusive benefit of an individual or corporation, the courts may go behind the parties on the face of the record. (Watson v. LeGrand Roller Skating Rink Co. 177 Ill. 203; People ex rel. Moloney v. General Electric Railway Co. 172 Ill. 129.) Here, the undisputed evidence is that the plaintiffs are interested as individual taxpayers. If funds are being wrongfully appropriated and spent as charged, this suit will not only profit the Broadcasters Association but will benefit the plaintiffs and all other Illinois taxpayers. Plaintiffs' motives cannot be questioned to the extent of dismissing their suit merely because their feelings on the subject of a University television station coincide with the desires of the aggressive Association. We are of the opinion that plaintiffs are entitled to be heard upon the merits of this cause.

In the trial court plaintiffs contended that, wholly apart from the reach and validity of the appropriation acts in question, the University is without legal power and authority to maintain and operate an educational television station. The point is argued only inferentially on this appeal when counsel states that there is no specific statutory authorization for the expenditure of funds for television purposes. For a better understanding of this problem, some historical background will be helpful.

The Board of Trustees was empowered to administer the University of Illinois by an act of the General Assembly passed in 1867. (Ill. Rev. Stat. 1953, chap. 144, pars. 22 et seq.) By section 7 thereof it was authorized to provide requisite buildings, apparatus and conveniences, to appoint professors and instructors and to teach in the most thorough manner such branches of learning as are related to agriculture and the mechanical arts, without excluding other scientific studies.

The Board of Trustees has, within such authorization, greatly expanded the facilities of the University. It has constructed and maintains the requisite buildings, apparatus and conveniences for and gives instruction in more than 2600 courses taught in 15 colleges, 5 schools, 2 divisions, 3 institutes and 2 Reserve Officers Training Corps, on three campuses. In addition, it maintains libraries, museums, ...


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