Burke v. Snively

• Decision Date: 17 February 1904
• Citation: 208 Ill. 328,70 N.E. 327
• Parties: BURKE v. SNIVELY et al.
• Court: Illinois Supreme Court

208 Ill. 328

70 N.E. 327

BURKE

v.SNIVELY et al. ^*

Supreme Court of Illinois.

Feb. 17, 1904.

Appeal from Circuit Court, Sangamon County; J. A. Creighton, Judge.

Bill by Richard E. Burke against Clarence E. Snively and others. From a decree for defendants, plaintiff appeals. Reversed.

Hand, C. J., and Wilkin, J., dissenting.

Darrow & Masters, for appellant.

H. J. Hamlin, Atty. Gen. (Joseph N. Carter, of counsel), for appellees.

BOGGS, J.

This was a bill in chancery filed in the circuit court of Sangamon county by the appellant against the appellees Snively, Newton, and Sackett, in their official capacity as commissioners of the Illinois & Michigan Canal, and the appellee James S. McCullough, as Auditor of Public Accounts of the State, and the appellee Fred A. Busse, as Treasurer of the State, to restrain the said Auditor of Public Accounts from drawing his warrant in favor of the said canal commissioners for certain sums of money appropriated by an act of the General Assembly approved May 15, 1903 (Laws 1903, p. 45), for the maintenance and protection of the Illinois & Michigan Canal, and for the necessary and extraordinary expenses thereof, and enjoining the said State Treasurer from paying any moneys out of the public funds of the state on any such warrant, should one be or have been drawn. A temporary injunction was issued as prayed. The defendants to the bill filed a joint answer thereto. The answer was accompanied by the affidavits of several persons, containing statements pertinent to matters alleged in the answer. A general replication was filed to the answer. A general replication was filed to the answer. The cause was submitted to the chancellor upon the bill, answer, and affidavits filed therewith, the replication to the answer, and a stipulation of the parties, in substance, as follows: That the bill of complaint, as verified under oath of said complainant, shall be considered as the evidence on his part; that the answer of said defendants, verified, together with the affidavits thereof, shall be considered as the evidence of one witness, if competent and received by the court, as to substance, on the part of the defendants; and that the court shall consider the averments of said bill and answer, and the statements in said affidavits, as evidence offered by the respective parties, and give to the same the same force and effect as though the testimony of said parties was taken in open court. The court overruled a motion entered by the appellant to strike the affidavits from the files, to which ruling exception was entered, and the appellant thereupon gave in evidence his bill, duly verified, and the appellees read in evidence their answer thereto and the affidavits filed in support of the answer. The decree of the court was that the bill should be dismissed and the injunction dissolved, from which decree the appellant has prosecuted this appeal.

The General Assembly of the state, at its session in 1903, adopted statutes authorizing the appropriation of $152,950 from the public moneys of the state for the purpose of providing means for maintaining the Illinois & Michigan Canal in a navigable condition, and maintaining and operating the Bridgeport pumping station and dredging the steamboat channel and basin at La Salle. The act authorized the Auditor of Public Accounts, on receipt of the certificate of the canal commissioners showing that the moneys are needed for the purposes for which the same were appropriated, to draw his warrant on the State Treasurer in favor of the canal commissioners for such sums so appropriated. The bill alleges that the complainant is a citizen of the state of Illinois, and the owner of real and personal property which is subject to taxation in said state and is taxed therein, and further alleges that such appropriations of the public moneys are prohibited by the provisions of the Constitution of 1870 with reference to canals, and that the acts of the Legislature authorizing such appropriations of the public moneys are therefore void, and the prayer of the bill is that such alleged misappropriation of the moneys of the state be restrained and enjoined. Appellees contend the bill is a suit against the state of Illinois, and should be dismissed for the reason that section 26 of article 4 of the Constitution of 1870 declares the state shall not be made a party to any action at law or suit in chancery.

The bill is not a suit against the state. It does not implead or ask any relief against the state. The relief asked is that officials of the state charged by law with the performance of official duties be restrained from a misuse of moneys intrusted to them, or from applying such moneys to purposes not warranted by law. The question to be determined is whether the state has, by law, authorized the payment from the public funds of sums of money to the commissioners of the canal, to be used in keeping in repair, improving, maintaining, and operating the Illinois & Michigan Canal. In equity the money in the state treasury is the money of the people of the state, and suits by a taxpayer to restrain the misappropriation by public officers of such money to an unauthorized purpose are not suits against te state. We have frequently maintained the jurisdiction of courts of equity to entertain bills in behalf of taxpayers to restrain misappropriation of funds by public authorities. Littler v. Jayne, 124 Ill. 123, 16 N. E. 374;Adams v. Brenan, 177 Ill. 194, 52 N. E. 314,42 L. R. A. 718, 69 Am. St. Rep. 222. In Burritt v. Commissioners of State Contracts, 120 Ill. 322, 11 N. E. 180, this court entertained an original petition for a writ of mandamus to compel the commissioners to provide the petitioner, who was a justice of the peace, with a certain legal publication, to be paid for out of public moneys, and considered the contention on its merits. In German Alliance Ins. Co. v. Van Cleave, 191 Ill. 410, 61 N. E. 94, we upheld the jurisdiction of a court of chancery to restrain the insurance commissioner from paying to the Treasurer of the State moneys collected as taxes from certain insurance companies, and to enjoin the State Treasurer from receiving such taxes.

Public officials of the state who are charged by law with the duty of granting certificates or warrants purporting to authorize the payment of moneys from the treasury of the state may be restrained from issuing certificates or warrants for the payment of the public money for any other than purposes for which such moneys may be lawfully used, and the Treasurer of the State may be enjoined from paying public funds for purposes or objects not authorized by law. An unconstitutional statute is not law, and an appropriation of public funds in pursuance of an unconstitutional statute is a misuse of funds, which may be restrained by injunction. Suits of that character, such as bills to enjoin the Governor, Secretary of State, and Treasurer of State from selling lands of the state under an unconstitutional statute (Pennoyer v. McConnaughy, 140 U. S. 1, 11 Sup. Ct. 699, 35 L. Ed. 363), a suit against the Governor and other state officers to restrain the issuing of a bond in violation of a statute (Louisiana Board v. McComb, 92 U. S. 531, 23 L. Ed. 623), and a suit against the Auditor of a state to restrain the execution of an unconstitutional statute (Osborn v. Bank of the United States, 9 Wheat. 738, 6 L. Ed. 204), have been held not suits against the state, and not violative of constitutional provisions against impleading the state in any action at law or suit in chancery. We may therefore consider the contention of the appellant that the General Assembly was wanting in power to authorize the public moneys to be taken out of the treasury of the state and applied to maintenance and operation of the Illinois & Michigan Canal. The General Assembly possessesfull, plenary power of legislation, in the absence of some inhibitory constitutional provision. It is composed of representatives of the people of the state, and may therefore exercise every legislative function not denied it by the Constitution, and not delegated to some other department of the state government.

The contention of the appellant is that the provision of the Constitution of 1870 which relates to the Illinois & Michigan Canal prohibits the Legislature from making any appropriations from the Treasury of the State for the maintenance and operation of the Illinois & Michigan Canal, or for the ordinary and necessary or extraordinary expenses of the canal. The constitutional provision referred to reads as follows: ‘The Illinois and Michigan Canal shall never be sold or leased until the specific proposition for the sale or lease thereof shall first have been submitted to a vote of the people of the state at a general election, and have been approved by a majority of all the votes polled at such election. The General Assembly shall never loan the credit of the state, or make appropriations from the treasury thereof, in aid of railroads or canals: provided, that any surplus earnings of any canal may be appropriated for its enlargement or extension.’ Const. 1870, separate section 3; Starr & C. Ann. St. 1896, p. 206. It will be observed the section consists of but two sentences. The first sentence inhibits the sale or lease of the Illinois & Michigan Canal, except by the authority of the people of the state, expressed at the polls at an election to be held throughout the state on a specific proposition for the sale or lease thereof. This sentence leaves unaffected the power of the Legislature to operate the canal and to make appropriations of the public moneys to defray the expenses of the operation, maintenance, or preservation thereof. Prior to the formation of the Constitution the canal had been operated under the direction and by the authority of the General Assembly,and an income had been derived in excess of all the expense of operation, and it was being so...