APPEAL from the Circuit Court of Cook County; the Hon. DANIEL
A. COVELLI, Judge, presiding.
MR. JUSTICE KLUCZYNSKI DELIVERED THE OPINION OF THE COURT:
This is an appeal from the circuit court of Cook County challenging 1) the validity of a temporary restraining order prohibiting Governor Richard B. Ogilvie, and Edward Weaver, Director of the Illinois Department of Public Aid, appellants-defendants, hereinafter referred to as defendants, from performing any acts which prevent the prompt allocation and payment to the Cook County Department of Public Aid (CCDPA) of funds necessary to carry forth the General Assistance program for November, 1971; and 2) the validity of the preliminary injunction ordering the return of $21,000,000 previously transferred from the General Assistance Fund (GA) to the Aid to Families with Dependent Children Fund (AFDC).
In addition, the defendants have sought leave to file an original proceeding, as petitioners, seeking a writ of mandamus ordering the plaintiff-respondent, David L. Daniel, Director of the Cook County Department of Public Aid to take all necessary action as directed by them to establish priorities among recipients and for the allocation and payment of the reduced funds available for General Assistance grants in Cook County.
All five welfare programs in Illinois are governed by the Illinois Public Aid Code. (Ill. Rev. Stat. 1969, ch. 23.) Of these five programs, three, Aid to the Aged, Blind or Disabled (art. III); Aid to Families with Dependent Children (art. IV); and Aid for Medical Assistance (art. V), are categorical programs which qualify for Federal funds in amounts equal to the State appropriations. Since Federal funds are available, Federal requirements must be met in order for individuals to participate. The remaining two programs, General Assistance and Local Aid to Medically Indigent, do not qualify for matching grants from the Federal government but are funded solely through State and local appropriations. Cook County administers the General Assistance program within the boundaries of the city of Chicago. The General Assistance programs in Cook County, outside Chicago, are administered by township supervisors. The requirements for these programs are enumerated in articles VI and VII of the Public Aid Code. The Code also establishes the office of Director of the Illinois Department of Public Aid who is responsible for the administration of said Code.
"An Act to Provide for the Ordinary, Contingent and Distributive Expenses of the Department of Public Aid" (Public Act 77-271) appropriated the funds necessary to implement and effectuate the provisions of the Illinois Public Aid Code. It provided over one billion dollars for disbursement to the needy by specific line appropriations in each of the aforementioned five welfare programs, and for other expenses of the Department, for the fiscal year beginning July 1, 1971 and ending June 30, 1972.
The remaining funds so appropriated were not sufficient to meet the needs of all State welfare programs for the entire fiscal year up to the minimum requirements permitted each welfare recipient under the Public Aid Code and the Rules and Regulations of the Department of Public Aid (IDPA).
The Director of the Illinois Department then submitted a memorandum to the Governor suggesting that $21,000,000 be transferred from General Assistance and added to the Aid to Families with Dependent Children Fund. This transfer was approved and made in reliance upon a provision of Public Act 77-271 (Appropriation Act), hereinafter discussed.
For the month of November, 1971, the Cook County Director requested $9,637,754 for General Assistance which request was predicated upon the standards established by the Illinois Department. The Director of the Illinois Department notified him that only $3,000,000 would be available; an amount which admittedly was insufficient to accomplish the goals enumerated in section 1-1 of the Public Aid Code. In addition, the Director of the Illinois Department suggested that the Cook County Department remove from the General Assistance rolls all persons who would qualify for the categorical programs that are Federally funded, as well as all "single employables" who had qualified for General Assistance. Instead, the Cook County Director ordered reductions of 60% in all checks to be issued in November, 1971.
Action was filed in the circuit court of Cook County by the County of Cook, et al., hereinafter referred to as plaintiffs, and after a hearing the court issued a temporary restraining order against the defendant directing the Illinois Department to provide the Cook County Department with the entire $9,637,754 requested for November, 1971. After further hearings, the court directed the defendants to re-transfer the $21,000,000 diverted from the General Assistance Fund. This appeal followed and defendants have sought leave to file a petition for an original action for mandamus, which, in part, seeks the return of those funds in excess of $3,000,000 paid to the Cook County Department under court order in November, 1971.
The defendants contend that the circuit court of Cook County lacked jurisdiction of this action because section 26 of article IV of the 1870 constitution of Illinois provided: "The State of Illinois shall never be made defendant in any court of law or equity." (Section 4 of article XIII of the constitution of the State of Illinois of 1970 abolished sovereign immunity subject to legislative action, but Public Act 77-1776, effective January 1, 1972, provides that claims against the State shall be filed only in the Court of Claims.) However, we find that the circuit court did have jurisdiction because this action contests the conduct of State officials in the enforcement of an allegedly unconstitutional statute and in allegedly proceeding in violation of law. Such an action is not considered an action against the State. Moline Tool Co. v. Department of Revenue, 410 Ill. 35.
Turning to the issues present on the merits, we first consider the validity of the transfer of the $21,000,000 from the General Assistance Appropriation to the Aid to Families with Dependent Children Fund.
Section 1-1 of the Public Aid Code (Ill. Rev. Stat. 1969, ch. 23, par. 1-1) establishes that the intent and purpose of the legislation is to "assist applicants and recipients to maintain a livelihood compatible with health and well being." This intent is carried throughout the Act and embodied in all five programs of the Public Aid Code, including article VI, General Assistance, and article VII, Local Aid to Medically Indigent.
Implementing and effectuating the intent and purpose of the Public Aid Code, the General Assembly passed Public Act 77-271 which appropriated specific separate sums to the five programs established in the Public Aid Code. In addition, Public Act 77-271 provides: "The Department, with consent in writing of the Governor, may reapportion the amounts appropriated in this section among the several subdivisions of distributive expenses herein designated as the need therefor arises." It is this provision upon which the defendants rely as complete authority for the transfer.
The plaintiffs argue however that this provision is invalid because it is an unconstitutional delegation of legislative power to the executive branch of government. We agree. Article III of the constitution of 1870, as well as section 1 of article II of the constitution of 1970, effective July 1, 1971, preserves the separation of powers between the three branches of government legislative, executive and judicial and further provides that one branch shall not exercise the powers delegated to the others. The power to make appropriations is constitutionally vested in the General Assembly and section 17 of article IV of the constitution of 1870, under which this appropriation was made, restricted the power of the General Assembly to alter appropriations, once made, by providing: "* * * no money shall be diverted from any appropriation made for any purpose, or taken from any fund whatever, either by joint or separate resolution." More specifically in this case by line appropriation the General Assembly authorized the expenditure of $117,908,700 for General Assistance and Local Aid to the Medically Indigent (Public Act 77-271) and the Governor, through his item reduction power, on July 13, 1971, reduced this amount by $40,000,000. Subsequently on October 5, 1971, he announced the transfer of $21,000,000 from these specific programs to the AFDC Fund. The question here is whether the Governor can be authorized to do what the General Assembly itself could do only by an act duly passed and approved, i.e., divert the funds ...