APPEAL from the Circuit Court of Sangamon County; the Hon.
SIMON L. FRIEDMAN, Judge, presiding.
MR. JUSTICE GREEN DELIVERED THE OPINION OF THE COURT:
This appeal is from an order of the circuit court of Sangamon County refusing a request for a temporary restraining order (TRO) prohibiting the processing or payment of State vouchers submitted by various legislators, legislative commission and committee members and their staffs for expenses incurred while attending the National Conference of State Legislatures held in San Francisco in the summer of 1979. The case started in the circuit court of Du Page County but was transferred, pursuant to a defense motion, to the circuit court of Sangamon County. For this reason and because of uncertainty in the law relating to injunctive relief, a procedural morass developed. However, we conclude that the trial court properly denied the requested relief. We affirm.
On July 27, 1979, plaintiffs, Michael Webb, Julie Smith, and Lisa Molidor, filed a petition in the circuit court of Du Page County seeking leave to file suit under "An Act in relation to suits to restrain and enjoin the disbursement of public moneys by officers of the state" (Ill. Rev. Stat. 1977, ch. 102, pars. 11-16). This legislation permits the Attorney General or, upon first obtaining leave of court, any citizen and taxpayer to sue to obtain the relief described in the title of the Act. After a hearing on August 2, 1979, leave was granted and a three-count complaint was filed seeking to prevent the processing and payment of State vouchers for the previously described expenses. The permanent relief sought was that the court (1) find and determine that certification, approval, and disbursement of the vouchers violated article VIII, sections 1(a) and 1(b), of the Illinois Constitution of 1970, (2) find and determine that "Ill. Rev. Stat., ch. 63, par. 123" is violative of article IV, section 1, of the Illinois Constitution of 1970, and (3) enjoin the processing, approval, and disbursement of the vouchers. State officers and employees who would process and pay the vouchers were made parties defendant.
The legislation, the validity of which was questioned, provided:
"The Majority and Minority Leadership of the Senate and the House of Representatives, and members of appropriate legislative committees and commissions as determined by such leadership, may, annually, attend appropriate meetings of the National Conference of State Legislatures as representatives of the General Assembly of the State of Illinois, and may pay such annual membership fee as may be required to maintain membership in such organization." Ill. Rev. Stat. 1977, ch. 63, par. 123.
Upon permitting the filing of the complaint, the court also granted plaintiffs' request for a TRO, effective for 10 days, prohibiting processing and payment of the vouchers. A hearing on the question of issuance of a preliminary injunction was set for August 9, 1979. On that date, without hearing the injunction issue, the court granted a defense motion for change of venue to Sangamon County. The order of transfer recited that because of a stipulation of record, the TRO was not extended. The stipulation was defendants' agreement that no vouchers would be processed until the case shall "properly have come before the Presiding Judge in Sangamon County."
The first hearing in the circuit court of Sangamon County was held on August 28, 1979. After denying a defense motion for rehearing as to the granting of leave to file the original complaint, the court allowed plaintiffs' motion for leave to file an amended complaint which had been pending at the time of transfer of the case. The amended complaint named additional defendants and set forth additional facts. It also contained a request that the TRO be extended. A new motion for TRO had also been filed in Sangamon County and plaintiffs' notice for the August 28 hearing stated that motion would be heard at that time. The trial court concluded that it was ruling on a motion to extend the original TRO. It then denied plaintiffs' request for temporary relief, finding (a) the complaint showed immediate irreparable injury, (b) the balance of hardship was with plaintiffs if the order were denied, and (c) plaintiffs had no adequate remedy at law, but (d) the complaint did not demonstrate a likelihood of success on the merits. Plaintiffs appealed pursuant to Supreme Court Rule 307. 58 Ill.2d R. 307.
Plaintiffs assert (1) the original TRO should have been extended because defendants made no showing that the restraint should have been discontinued, (2) the court improperly required a showing of likely success on the merits, and (3) in any event, likely success was shown.
Sections 3 and 3-1 of "An Act to revise the law in relation to injunction" (Ill. Rev. Stat. 1977, ch. 69, pars. 3, 3-1) provide for the issuance of preliminary injunctions and TRO's, respectively. Section 3-1 limits the duration of a TRO granted without notice to the lesser of 10 days or the time provided by the court. Such an order so entered can, during its duration, be extended for good cause shown for a period of another 10 days or, if the parties agree, pendente lite. When such an order is entered without notice, a hearing on whether a preliminary injunction is to issue is required to be set as soon as possible.
Plaintiffs' first contention is based upon Kraft v. Solon (1975), 32 Ill. App.3d 557, 336 N.E.2d 577, which held that a court once granting a TRO should not vacate it absent a showing that it should not be continued. Here, regardless of whether the original TRO of August 2, 1979, was issued with notice to defendants, that order had, by its terms, expired 10 days later. The August 9 order of the Du Page court expressly stated that it was not extended. The stipulation of the parties was an agreement by defendants to forebear. That agreement expired by its terms by the time of the August 28 hearing. Thus, the question before the circuit court of Sangamon County on August 28 was not whether an existing TRO should be either dissolved or extended but whether a new one should be entered. There is no merit to plaintiffs' theory that defendants had a burden to make any showing.
Plaintiffs' theory that the trial court erred in requiring them to make a showing of probable success is based on a series of appellate court cases holding or stating by way of dictum that probable success is not a necessary element of proof to entitle a party to obtain a preliminary injunction or TRO to preserve the status quo necessary to prevent the destruction of the res in controversy (Alexander v. Standard Oil Co. (1977), 53 Ill. App.3d 690, 368 N.E.2d 1010; Paddington Corp. v. Foremost Sales Promotions, Inc. (1973), 13 Ill. App.3d 170, 300 N.E.2d 484; Hoffman v. Wilkins (1971), 132 Ill. App.2d 810, 270 N.E.2d 594; Keeshin v. Schultz (1970), 128 Ill. App.2d 460, 262 N.E.2d 753; Fishwick v. Lewis (1930), 258 Ill. App. 402). The rationale for the rule was stated in Keeshin to be as follows:
"In this situation, the court can be seen as having not only the discretion but the duty, when requested, to attempt preservation of the property or fund in controversy so that ultimate success by plaintiffs may not result in a meaningless victory. By issuing its injunctions for this purpose, the court need not have decided that plaintiffs will probably be granted the basic relief they seek, * * *." (128 Ill. App.2d 460, 468-69, 262 N.E.2d 753, 757.)
In the instant case the res would be the appropriated funds to be used to pay the vouchers.
On the other hand, no supreme court case recognizing that probable success on the merits is not a necessary element to show in order to obtain interlocutory injunctive relief has been called to our attention. In Kable Printing Co. v. Mt. Morris Bookbinders Union Local 65-B (1976), 63 Ill.2d 514, 349 N.E.2d 36, the supreme court held that the 10-day limitation periods of section 3-1 were not applicable to TRO's issued after proper notice and that such orders could be ordered to continue until a decision on the merits of the case ...