Fergus v. Brady

• Decision Date: 21 February 1917
• Docket Number: No. 11147.,11147.
• Citation: 115 N.E. 393,277 Ill. 272
• Parties: FERGUS v. BRADY, Auditor of Public Accounts, et al.
• Court: Illinois Supreme Court

277 Ill. 272

115 N.E. 393

FERGUS

v.BRADY, Auditor of Public Accounts, et al.

No. 11147.

Supreme Court of Illinois.

Feb. 21, 1917.

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

Bill by J. B. Fergus against James J. Brady, Auditor of Public Accounts, and Andrew Russel, Treasurer of the State of Illinois. From a decree for complainant, defendants appeal. Decree modified and affirmed.P. J. Lucey, Atty. Gen., and Lester H. Strawn, and A. R. Roy, Asst. Attys. Gen. (Logan Hay, of Springfield, of counsel, for appellant Russel), for appellants.

F. S. Munro and John A. Watson, both of Chicago (Stevens & Herndon, of Springfield, of counsel), for appellee.

CARTWRIGHT, J.

By his second amended bill filed in this case in the circuit court of Sangamon county, the appellee, J. B. Fergus, prayed for an injunction against the appellants, James J. Brady, auditor of public accounts, and Andrew Russel, treasurer of the state of Illinois, to prevent the payment of various sums appropriated by the General Assembly to boards and individuals and to require an accounting and restitution for sums that had been paid out of the state treasury on warrants drawn by the auditor and paid by the treasurer. The defendants demurred generally and specially, and the chancellors sustained two of the special causes of demurrer. The bill alleged that appropriations amounting in the aggregate to more than $400,000 were illegal because in excess of the revenue authorized to be raised by taxation. The chancellor held that the word ‘revenue,’ as used in section 18 of article 4 of the Constitution, is not limited to moneys raised by taxation, but includes moneys derived from all sources required by law to be paid into the state treasury within a specified time, and also held that the bill of complaint did not state a case against the defendants warranting an accounting and restitution of moneys paid out of the state treasury. An interlocutory degree was entered accordingly, and the defendants answered, alleging the validity of the appropriations and setting forth the payment of the greater part of them before the suit was instituted. Charles E. Pope, to whom an appropriation had been made, intervened by petition and the cause was heard mainly on a stipulation of facts. The chancellor found that a considerable number of unpaid appropriations were unlawful and enjoined their payment, but included by inadvertencefour claims that had been paid. An appeal was presecuted from the decree, and appellants have assigned error on the ruling of the chancellor on each of the items held illegal, and the appellee has assigned cross-errors on the ruling of the chancellor in sustaining the special causes of demurrer and the failure to require an accounting and restitution by the defendants of claims paid out before the bill was filed and to decide the same to be illegal.

The decision of the controversy will be better understood by first considering the cross-errors assigned on the ruling of the chancellor sustaining two special causes of demurrer.

The Constitution limits appropriations which may lawfully be made by each General Assembly for the ordinary and contingent expenses of the government until the expiration of the first fiscal quarter after the adjournment of the next regular session to the amount of revenue authorized by law to be raised in such time, and the first question is whether the amount of revenue is limited to moneys raised by taxation. There is a very large amount of money paid into the state treasury from other sources than direct taxation, and the ordinary meaning of the word is the total income of the government, derived from all sources, subject to be applied to public purposes. It would not be reasonable to say that appropriations which are not to exceed income should be limited to moneys raised by direct taxation while there are other large sums of money which may be applied to the purposes of the government not taken into account.

The chancellor also held on the special demurrers that the complainant could not compel an accounting and restitution of moneys paid out before the institution of the suit in pursuance of appropriations made by the General Assembly. The duties of the auditor and treasurer in issuing and paying warrants are purely ministerial, and neither is required to decide upon the validity of a law which is apparently enacted for a governmental purpose. A public official having only ministerial duties may be held personally liable for the payment of an appropriation for a purpose which is not governmental in its nature, as in the case of Jackson v. Norris, 72 Ill. 364, where the treasurer of the city of Salem paid $1,000 to the Salem Manufacturing Company to enable that company to discharge its debts, but it would be a perilous doctrine to hold that an official having ministerial duties in the machinery of the state government is authorized to determine whether an act of the General Assembly is in violation of the Constitution where he has no notice that the appropriation is unlawful, as in this case. If an appropriation were entirely outside of the functions of a state government the question would be different. The chancellor was right in eliminating from the controversy between the complainant and the state auditor and treasurer all the appropriations which had been paid.

The errors assigned by the appellants against the decision of the chancellor concern the unpaid appropriations found to be illegal, and whether they were or not depends upon provisions of the Constitution. Sections 18 and 19 of article 4 of the Constitution are as follows:

‘Sec. 18. Each General Assembly shall provide for all the appropriations necessary for the ordinary and contingent expenses of the government until the expiration of the first fiscal quarter after the adjournment of the next regular session, the aggregate amount of which shall not be increased without a vote of two-thirds of the members elected to each house, nor exceed the amount of revenue authorized by law to be raised in such time; and all appropriations, general or special, requiring money to...