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People Ex Rel. Kirk v. Lindberg

OPINION FILED SEPTEMBER 27, 1974.

THE PEOPLE EX REL. FRANK A. KIRK, DIRECTOR OF THE DEPARTMENT OF LOCAL GOVERNMENT AFFAIRS, PETITIONER,

v.

GEORGE W. LINDBERG, COMPTROLLER, RESPONDENT.



Original proceeding for mandamus.

MR. JUSTICE SCHAEFER DELIVERED THE OPINION OF THE COURT:

This is an original mandamus action brought by Frank A. Kirk, the Director of the Department of Local Government Affairs, to compel the respondent, George W. Lindberg, the Comptroller of the State of Illinois, to honor a voucher drawn upon a designated State fund. The motion for leave to file the original petition for mandamus was filed in this court on August 30, 1974. Leave was granted on September 5, 1974, a briefing schedule was fixed, and the matter was set for oral argument on September 20, 1974. Thereafter the petition was amended, briefs were filed by the parties and by certain amici curiae, and oral argument was had. A motion to dismiss has been filed to eliminate the possibility of factual issues.

The amended petition alleged that the respondent refused to honor the voucher and to issue the warrants for which it called for the following reasons:

"a. The General Assembly has not made an appropriation for the expenditure of the funds drawn upon by said voucher; said funds are `public funds' within the meaning of the provisions of that part of section 2(b) of article VIII of the Illinois Constitution of 1970 which reads:

`(b) The General Assembly by law shall make appropriations for all expenditures of public funds by the State. * * *' (emphasis added)

therefore, issuance of warrants as requested in and by said voucher would be contrary to said provision of said section 2(b).

b. Issuance of said warrants are prohibited by the provisions of section 7 of `AN ACT to provide for the ordinary and contingent expenses of the Department of Local Government Affairs' (Public Act 78-1024) * * *."

It is common ground between the parties that neither under the Constitution of 1870 nor under the provision quoted above from the Constitution of 1970 have all State funds been expended pursuant to appropriations. The comparable provision of section 17 of article IV of the Constitution of 1870 provided: "No money shall be drawn from the treasury except in pursuance of an appropriation made by law * * *." Under this provision numerous decisions sustained the validity of expenditures from the State treasury without current appropriations. (See, e.g., Green v. Black (1933), 352 Ill. 623; Elliott v. University of Illinois (1936), 365 Ill. 338; Antle v. Tuchbreiter (1953), 414 Ill. 571; People v. Illinois Toll Highway Com. (1954), 3 Ill.2d 218.) So far as we have been advised no change has been made in the practice of expending some State funds without a current appropriation. Indeed, it has been represented that more than two billion dollars in such funds are so expended annually.

We shall first consider the contention that the issuance of the warrant is prohibited by section 7 of "An Act to provide for the ordinary and contingent expenses of the Department of Local Government Affairs," which became effective July 22, 1974. (Pub. Act 78-1024; Laws of 1974, at 251.) In addition to appropriations for personal services, contractual services, commodities and the like with respect to the various operations of the Department, the Act contained appropriations for grants-in-aid for the State's share of various functions of local government, and for research and planning grants to various planning commissions. Section 5 of the Act appropriated a total of $2,285,770 to the Department from a "Federal Urban Planning Assistance Fund." Sections 6 and 7 of the Act did not make appropriations. Section 7 is immediately involved in this case since its validity is challenged by the plaintiff. It reads as follows:

"Section 7. Any Federal funds for the above or other purposes received in excess of the appropriation shall be paid into the proper trust account, but shall only be expended subject to additional appropriation by the General Assembly provided however that grants-in-aid for non-state agencies may be expended without additional appropriation by the General Assembly."

The Attorney General urges that section 7 is invalid, inter alia, because it violates section 8(d) of article IV of the Constitution of 1970, which provides: "Bills, except bills for appropriations and for the codification, revision or rearrangement of laws, shall be confined to one subject. Appropriation bills shall be limited to the subject of appropriations."

The first portion of section 7 is not an appropriation; rather it is a restriction upon the use of Federal funds which have not previously been appropriated. The respondent has argued that to this extent section 7 is redundant, since it does no more than reiterate what the Constitution has already provided. If this proposition be accepted, the first portion of section 7 — that portion which precedes the proviso — is to be regarded as innocuous, in that it only reiterates the requirement of section 2(b) of article VIII of the Constitution of 1970 that "The General Assembly by law shall make appropriations for all expenditures of public funds by the State."

But we are unable to see any theory upon which the balance of section 7, which reads "provided however that grants-in-aid for non-state agencies may be expended without additional appropriation by the General Assembly" can be sustained. To say that this proviso, which authorizes the expenditure of funds without any appropriation, nevertheless relates to the subject of appropriations requires, in our opinion, too great a logical jump to be acceptable. It is impossible for the court to say that the General Assembly would have adopted section 7 without the proviso relating to the expenditure of funds by non-State agencies without appropriations. Section 7 itself, however, we regard as clearly separable from the other portions of the Act — at least from the first five sections of the Act, which deal with appropriations for the ordinary and contingent expenses of the Department of Local Government Affairs.

The constitutional provision which limits appropriation bills to the subject of appropriations is not simply a formal requirement in the enactment of legislation. It is much more than that. It has its roots in the doctrine of separation of powers. As a practical matter, if subjects other than the immediate subject of appropriations in the sense of authorizations of expenditures are permitted to be included in an appropriations bill, then the veto power of the Governor is effectively nullified. Appropriation bills are characteristically passed late in the legislative session and they must become effective in order to prevent government operations from being brought to a complete stop. The Governor's ...


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