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Peo. Ex Rel. Coons v. Howlett





ORIGINAL PETITION for writ of mandamus.


Rehearing denied November 18, 1965.

By an original mandamus proceeding in this court John E. Coons, a taxpayer, seeks to prevent the payment of a salary greater than $6,000 per annum to members of the 74th General Assembly for the two-year period for which they were elected.

The governing statute in force in 1963 provided for compensation at that rate. (Ill. Rev. Stat. 1963, chap. 63, par. 14.) On June 26 of that year the General Assembly passed H.B. 1369 increasing the rate to $7,500 per year, and on July 1 Senate Bill 1159 was approved by the Governor, making appropriations for salaries in the latter amount. On August 29 the Governor vetoed House Bill 1369. Petitioner Coons maintains that since the amending statute was vetoed the compensation remained by statutory authority at its pre-existing level of $6,000 per year, even though an appropriation was passed and approved for a rate of $7,500. He cites no authority for the proposition. The respondent State officers insist that the appropriation bill amended the statute by implication. This interpretation was adopted by the Attorney General of the State of Illinois in an opinion dated February 18, 1965, relying principally on People ex rel. Kaneland Community Unit School District v. Howlett, 30 Ill.2d 128.

In the Kaneland case judgments rejecting the doctrine of governmental immunity had been rendered against the school district, in actions arising out of a school bus accident, and because they had the effect of imposing a unique burden on this particular district the legislature determined that the cost should be borne by the entire State in that instance. To this end a bill was passed and approved which appropriated $750,000, or so much thereof as might be necessary, from the motor fuel tax fund to the school district. In a mandamus proceeding to compel payment it was objected that the bill was invalid, that the Motor Fuel Tax Act prescribed how the funds should be expended, and that money could not be appropriated from the motor fuel tax fund by subsequent separate legislation. This court upheld the appropriation, however, under the rule that "where the new law is complete in itself without reference to the prior legislation, it is valid although the new law may modify or amend the existing statute by implication."

Also cited is Tayloe v. Kjaer, (D.C. cir.) 171 F.2d 343, which involved a question of title to certain real estate which had been purchased at a tax sale. The District of Columbia Code required, for a valid tax sale, that publication be made once a week for two weeks in one morning and one evening newspaper. The appropriation act for the year in question contained an appropriation for advertising notices but provided that it should not be available for advertising "more than once a week for two weeks in the regular issue of one morning or one evening newspaper published in the District of Columbia, notwithstanding the provisions of existing law." (Italics supplied.) The property in question was included in a list and notice published once a week for two weeks in one newspaper only. It was held sufficient, the court observing that "for the period of that fiscal year, the proviso in legal effect acts through its specific provisions as a pro tanto change of law." It was further pointed out that the proviso would have controlled even if it had purported to be a permanent change in existing law, since "Congress, of course, has undoubted power to permanently change existing law even in an appropriation act, and the fact that it is universally recognized as exceedingly bad legislative practice and is forbidden by the rules of both Houses of Congress does not subject it to judicial scrutiny."

We think a similar conclusion must follow in the case at bar. The appropriation act provides, in clear and unmistakable language, that "The following named sums, or so much thereof as may be necessary, respectively, are appropriated to pay the officers and members of the General Assembly and certain officers of the State government, hereinafter mentioned, for the biennium beginning July 1, 1963, as follows: * * * For members of the 74th General Assembly at $7,500 each per annum * * * $2,169,000." (Laws of 1963, p. 1394.) The evident intent of the legislature was that members were to receive $7,500 per year, and the expression of this intent in Senate Bill 1159 was approved by the Governor and became duly enacted into law.

Petitioner relies upon the words "or so much thereof as may be necessary," contending that they restrict the amount payable to that which had theretofore been authorized, namely $6,000 for each member per annum. It is argued that the quoted words prevent the bill from being complete in itself and require its construction in conjunction with the statute on compensation. The rule is invoked that statutes should be construed so as to give effect to each, and it is urged that this can be done here by construing the quoted provision as restricting payment of appropriated funds to the amount prescribed by the existing statute. We cannot accept the argument. The phrase "or so much thereof as may be necessary" means so much of the total amount as may be necessary to compensate the members at the rate prescribed therein, namely $7,500 per annum. The words "at $7,500 each per annum" are plain and unequivocal, and are in direct conflict with the existing provision for a rate of $6,000 per annum. The later law constitutes an amendment by implication and its provisions must prevail.

The petitioner has not shown a right to the writ of mandamus, and the writ will be denied.

Writ denied.

Mr. JUSTICE SCHAEFER, dissenting:

The compensation of the Governor, Lieutenant Governor, members of the General Assembly, judges, heads of administrative departments and other state officers has consistently been fixed by general statutes. (See e.g. Ill. Rev. Stat. 1963, chap. 53, par. 1 (Governor); chap. 53, par. 1 (Lieutenant Governor); chap. 63, par. 14 (legislators); chap. 127, pars. 9.01-9.16 (directors of departments.) Whenever it was desired to change the compensation so fixed, the change has been made by amending these statutes. The opinion of the majority now holds that the salary of a state officer may be changed without amending the basic statute which establishes the compensation for the office, simply by appropriating a different amount for payment of the salary of the officer. This result can not be squared with the governing provisions of the constitution of Illinois. Indeed, the majority opinion makes no attempt to justify the result it reaches under the constitution. It ignores the constitution, and therefore I dissent.

Section 1 of "An Act to provide for and fix the compensation of the members of the General Assembly of the State of Illinois" provided in 1963: "Each member of the General Assembly shall receive for the two year period for which members of the House of Representatives of the General Assembly are elected, the sum of $6,000 per year." (Ill. Rev. Stat. 1963, chap. 63, par. 14.) A bill amending this section (H.B. 1369) to increase the compensation to $7,500 per year was passed by both houses of the 73rd General Assembly in 1963. It was vetoed by the Governor. (Veto Messages, 73rd Biennium, p. 60.) The bill making appropriations for the pay of state officers (S.B. 1159.) was prepared upon the assumption that the increase in the salary of members of the General Assembly would be passed and approved, and so it appropriated "For members of the 74th General Assembly at 7,500 each per annum . . . $2,169,000."

The majority opinion holds that the appropriation bill "constitutes an amendment by implication" of the statute which fixes the compensation of members of the General Assembly. Neither of the two decisions relied upon in the majority opinion has any bearing upon the problem presented in this case. The Kaneland Community Unit School District case, (30 Ill.2d 128.) did not involve the constitutional provisions that are controlling here, and the description of that case in the majority opinion demonstrates its irrelevance. The federal statute involved in Tayloe v. Kjaer (D.C. Cir.) 171 F.2d 543, is a classic example of ...

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