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People Ex Rel. Ogilvie v. Lewis

OPINION FILED OCTOBER 4, 1971.

THE PEOPLE EX REL. RICHARD B. OGILVIE, PETITIONER

v.

JOHN W. LEWIS, SECRETARY OF STATE, RESPONDENT.



Original Petition for Mandamus.

MR. CHIEF JUSTICE UNDERWOOD DELIVERED THE OPINION OF THE COURT:

An act entitled the "Transportation Bond Act," providing for the issuance, sale, and retirement of transportation bonds of the State of Illinois in the amount of $900,000,000, was passed by the 77th General Assembly on June 28, 1971, and approved by the Governor on July 2, 1971. Pursuant to the provisions of that Act, Richard B. Ogilvie, Governor of Illinois, petitioner herein, determined that $100,000,000 of the transportation bonds should be sold at the earliest practicable time and requested John W. Lewis, Secretary of State, respondent herein, to prepare advertisements for bids for the sale of the bonds as provided by the Act. Respondent refused to comply with petitioner's request on the ground that there were serious questions concerning the validity of the Act under the constitutions of the United States and the State of Illinois. In this original action, petitioner seeks a writ of mandamus "directing respondent John W. Lewis forthwith to take all necessary action as directed by petitioner" in connection with the issuance and sale of bonds as authorized by the Transportation Bond Act.

Since resolution of the various issues in this case requires analysis of specific provisions of the Act in the context of the Act as a whole, we will set forth in some detail the pertinent provisions in question.

The Act provides for the issuance of $900,000,000 of General Obligation Bonds backed by the full faith and credit of the State of Illinois for two specific purposes enumerated in section 2 of the Act. The first is "the specific purpose of promoting and assuring rapid, efficient, and safe highway, air and mass transportation for the inhabitants of the State by providing monies, including the making of grants and loans, to be used for the acquisition, construction, reconstruction, extension and improvement" of the highway, mass transit and aviation facilities and equipment specified in sections 2(a), 2(b)(1) and 2(c) of the Act "and for the acquisition of real property and interests in real property required or expected to be required in connection therewith."

The other specific purpose is stated as follows in section 2(b)(2) and (3) of the Act: "For the purpose of providing immediate relief from existing or impending inability to meet principal and interest payments and thereby aiding in achieving the maximum benefit for the public from the transportation capital improvement program, to provide funds for any payments required to be made for principal of and interest on bonds, certificates, equipment trust certificates or other evidences of indebtedness issued or guaranteed prior to the passage of this Act by the State or any unit of local government, special transportation district, municipal corporation or other corporation or public authority authorized to provide public transportation within the State or two or more of the foregoing acting jointly, pursuant to any indenture, ordinance, resolution, agreement or contract to obtain and finance transportation facilities"; and to provide funds "for the purpose of reimbursing the General Revenue Fund for monies paid from the General Revenue Fund after passage of this Act" for such purposes. Funds expended for this second purpose are limited to $32,000,000 by section 5.1 of the Act, which also provides that no bond proceeds shall be subject to appropriation for such purpose by the General Assembly after June 30, 1972.

The bonds authorized by the Act are designated "Transportation Bonds, Series A" and "Transportation Bonds, Series B". The Series A Bonds total $600,000,000, and the proceeds of sale are to be used for "the acquisition, construction, reconstruction, extension and improvement of State highways, arterial highways, freeways, roads, structures separating highways and railroads and bridges." (Sec. 2(a).) The proceeds of sale of the Transportation Bonds, Series B, in the aggregate of $300,000,000 are to be used as follows: $200,000,000 for "the acquisition, construction, extension, reconstruction and improvement of mass transportation facilities including rapid transit, rail, bus and other equipment used in connection therewith by the State or any unit of local government, special transportation district, municipal corporation or other corporation or public authority authorized to provide and promote public transportation within the State or two or more of the foregoing acting jointly" (sec. 2(b)(1)), and the remaining $100,000,000 for "the acquisition, construction, extension, reconstruction and improvement of airport or aviation facilities and any equipment used in connection therewith by the State or any unit of local government, special transportation district, municipal corporation or other corporation or public authority authorized to provide public transportation within the State or two or more of the foregoing acting jointly." Sec. 2(c).

The Act goes on to specify that the bonds are to bear interest at a rate not to exceed 7%, shall mature in not more than 30 years from the date of issue, shall be sold only after specified advertisement for bids by the Secretary of State to the highest and best bidder from time to time as the Governor shall direct for not less than par value with the Governor reserving the right to reject any and all bids, and that the bonds shall be callable as determined by the Governor with the State not to pay a premium of more than 3% of the principal of bonds so called.

The proceeds of sale of the Series A bonds are to be deposited in the State Treasury in a newly created separate fund designated "Transportation Bond, Series A Fund" and the proceeds of the Series B Bonds are to be deposited in a companion fund designated "Transportation Bond, Series B Fund".

Pursuant to section 5 of the Act the proceeds of sale of the bonds are to be used by and under the direction of designated departments of the State of Illinois, "subject to appropriation by the General Assembly, in such amounts and at such times as the respective department deems necessary or desirable" for the purposes of the Act.

Section 7 of the Act sets forth the manner of repayment of the bonds. The Act provides for the creation of two bond retirement funds of the State Treasury, known respectively as "Transportation Bonds, Series A Retirement and Interest Fund" and "Transportation Bonds, Series B Retirement and Interest Fund". The Governor is directed to include an appropriation in each annual State budget of monies in such amounts as are necessary for the period covered by the budget to pay the principal and interest coming due on the bonds which are outstanding. The Act provides that with respect to the Series A Bonds, "the General Assembly shall annually make appropriations for monies" to pay the principal and interest on the Series A Bonds from the Series A Retirement Fund and "shall direct the transfer from time to time of monies from the Road Fund" to the Series A Retirement Fund sufficient for this purpose, or if there are insufficient funds in the Road Fund for this purpose, then the General Assembly is directed to transfer such monies as are necessary for that purpose from the General Revenue Fund to the Series A Retirement Fund. With respect to Series B Bonds, the General Assembly "shall make appropriations for monies" to pay the principal and interest on the Series B Bonds and "shall direct the transfer from time to time of monies from the General Revenue Fund" to the Series B Retirement Fund sufficient for this purpose.

Section 7 of the Act further provides that if for any reason the General Assembly should fail to make the appropriations for or transfers to the A and B Retirement Funds of amounts sufficient to pay the principal and interest on the bonds when they become due, "this Act shall constitute an irrevocable and continuing appropriation of all amounts necessary for that purpose, and the irrevocable and continuing authority for and direction to the Auditor of Public Accounts, or Comptroller as his successor, and to the Treasurer of the State to make the necessary transfers out of and disbursements from the revenues and funds of the State for that purpose".

Section 9 contains provisions which require the State Treasurer and Auditor of Public Accounts to make timely transfers of monies as mandated by the provisions of section 7 of the Act with the provision that such transfers are not necessary if the monies in the Series A and B Retirement Funds are sufficient to pay principal and interest due on the outstanding bonds.

The Illinois constitution of 1970 was ratified by the People on December 15, 1970, but did not become generally effective until July 1, 1971. The Transportation Bond Act was enacted by the 77th General Assembly during this interim period. The anticipatory nature of the Act is apparent. The preamble to the Act states that it is "An Act in anticipation of the effective date of the Illinois Constitution of 1970 and to implement, in part, Article XIII, Section 7 of the Constitution * * *." Section 12 of the Act provides: "This Act having been passed in anticipation of the effective date of the Illinois Constitution of 1970 and to implement, in fact, Article XIII, Section 7 of the Illinois Constitution of 1970, shall go into full force and effect upon July 1, 1971, or upon the date when the Governor signs this Act into law if such signing occurs after July 1, 1971." On July 2, 1971, the Act was approved by the Governor and thereupon became law one day after the Illinois Constitution of 1970 became generally effective.

Respondent's initial contention is that the validity of the Transportation Bond Act must be determined by the constitution of 1870 in effect at the time the Act was passed by the General Assembly and not by the constitution of 1970 in effect at the time the Act became law. The underlying issue is whether the legislature has power to enact legislation to anticipate and be tested by an already ratified but not yet effective constitution even though the legislation possibly may not have been valid if tested by the constitution in effect at the time of its passage. This is a question of first impression in Illinois for the practical reason that the 1848 and 1870 constitutions became effective very shortly after ratification by the People. However, the United States Supreme Court has upheld legislation in anticipation of a constitutional amendment (Druggan v. Anderson (1926), 269 U.S. 36, 70 L.Ed. 151, 46 S.Ct. 14) as have most State courts which have considered the question. (Gaylord v. Beckett (1966), 378 Mich. 273, 144 N.W.2d 460; In re Opinions of the Justices (1933), 227 Ala. 291, 149 So. 776; Alabam's Freight Co. v. Hunt (1926), 29 Ariz. 419, 242 P. 658; State v. Herker (1923), 109 Ore. 520, 221 P. 808; Neisel v. Moran (1920), 80 Fla. 98, 85 So. 346.) The authority to the contrary involves distinguishable circumstances where there ...


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