Fergus v. Russel

• Decision Date: 18 December 1915
• Docket Number: No. 10276.,10276.
• Citation: 270 Ill. 304,110 N.E. 130
• Parties: FERGUS et al. v. RUSSEL, State Treasurer, et al.
• Court: Illinois Supreme Court

270 Ill. 304

110 N.E. 130

FERGUS et al.

v.RUSSEL, State Treasurer, et al.

No. 10276.

Supreme Court of Illinois.

Nov. 6, 1915.

Rehearing Denied Dec. 18, 1915.

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

Suit by J. B. Fergus and another against Andrew Russel, State Treasurer, and another. From a decree granting a part of the relief sued for, defendants appeal. Reversed and remanded, with directions.

Farmer, C. J., and Craig and Duncan, JJ., dissenting.P. J. Lucey, Atty. Gen., and Lester H. Strawn and A. R. Roy, both of Springfield, (Logan Hay, of Springfield, of counsel), for appellants.

Fayette S. Munro and Shelby M. Singleton, both of Chicago (John A. Watson, of Chicago, and Stevens & Herndon, of Springfield, of counsel), for appellees.

A. A. McKinley, of Chicago, and Charles H. Shamel and Cyril W. Armstrong, both of Springfield, for insurance superintendent.

COOKE, J.

On July 9, 1915, J. B. Fergus, one of the appellees, filed his bill of complaint in the circuit court of Sangamon county against Andrew Russel, state treasurer, to restrain the payment out of the state treasury of certain appropriations made by the Forty-Ninth General Assembly of this state. A summons was issued and served upon Russel, as state treasurer, returnable to the September term, 1915, of the circuit court. Thereafter, on July 31, 1915, the complainant, by leave of court, filed an amended bill, and James J. Brady, auditor of public accounts, was joined with the state treasurer as a defendant to the suit. The appropriations attacked by the amended bill appear in an act entitled ‘An act to provide for the ordinary and contingent expenses of the state government until the expiration of the fiscal quarter after the adjournment of the next regular session of the General Assembly,’ approved June 29, 1915, in force July 1, 1915 (Laws of 1915, p. 203), which act, pending its passage, was commonly referred to as the ‘Omnibus Bill’ and is generally known by that title. On August 6, 1915, the defendants answered the amended bill, and it was stipulated that the cause should be heard at the May term, 1915, of the circuit court and should be considered and determined by the court upon the amended bill and answer. Before the court had announced a decision, Frederick W. Burlingham was, upon his motion, permitted to become a co-complainant, and consented to be bound by all proceedings therefore taken in the cause.

Thereafter, on August 30, 1915, a decree was entered in the cause, finding that the appropriations made by the Omnibus Bill to the Attorney General for one assistant Attorney General in charge of the inheritance tax office in Cook county and for one clerk in said office; to the State Public Utilities Commission for chief grain inspector, for fourteen deputy grain inspectors, for four deputy grain inspectors, for one registrar, for three members of the appeal committee, for deputy chief inspector at East St. Louis, and for four deputy inspectors at East St. Louis; to the state board of pardons for the secretary of the board; to the state board of health for the executive officer of the board; to the state civil service commission for the secretary of the commission; to the game and fish conservation commission for extra wardens; to the Illinois state board of examiners of architects for the secretary and members of the board; to the state board of dental examiners for the secretary of the board; to the barbers' state board of examiners for the members of the board; to the state inspector of apiaries for the chief inspector; to the state board of pharmacy for the members of the board; to the state fire marshal for twenty-five deputy fire marshals; to the state board of examiners of registered nurses for the secretary and members of the board; to the Illinois stallion registration board for the secretary and members of the board; to the Industrial Board for the secretary of the board; to the board of examiners for horseshoers for the secretary and members of the board; to the state board of optometry for the secretary and members of the board; and to the state board of dental examiners for the members of the board-are appropriations for salaries of officers of the state government, and are unconstitutional and void, because made by the Omninbus Bill.

The decree further found that the appropriation of $2,000 made by the Omnibus Bill to the lieutenant governor for traveling expenses is unconstitutional and void, because such appropriation increases the salary of the lieutenant governor, and that the appropriation to the state treasurer of such sum as may be necessary to refund the taxes on real estate sold or paid on error and for overpayment of collectors' accounts under laws governing such cases, to be paid out of proper funds, is void, because no specific sum is appropriated for such purposes. The decree found that all other appropriations challenged by the amended bill are constitutional and valid. The auditor is by the decree perpetually enjoined from issuing, and the state treasurer from signing, honoring, or paying, any warrants on account of any of the appropriations found to be unconstitutional and void. The state treasurer and the auditor of public accounts have prosecuted this appeal, and urge as grounds for reversal of the decree, first, that the complainants have shown no such interest in the subject-matter of the suit as entitles them to maintain this action; and, second, that the court erred in holding each of the appropriations above specified unconstitutional and void.

The appellees, Fergus and Burlingham, have assigned cross-errors, calling in question the action of the circuit court in holding constitutional and valid the appropriations made by the Omnibus Bill to the Attorney General for three other assistants in the inheritance tax office in Cook county; to the state public utilities commission for assistant secretaries, five private secretaries to commissioners, librarian and historian, assistant counsel, three attorneys, two assistant attorneys, assistant chief engineer, chief engineer railroad division, assistant engineer railroad division, chief engineer accident division, chief engineer gas division, chief engineer electrical division, chief engineer telegraph and telephone division, chief engineer service division, mechanical engineer, thirteen assistant engineers, chief accountant, four assistant accountants, five assistant statisticians, utility rate expert, assistant utility rate expert, transportation rate expert, four assistant transportation rate experts, two assistant grain inspectors, two supervising grain inspectors, chief grain clerk inspection division, chief grain clerk, and supervising inspector at East St. Louis; to the state board of live stock commissioners for secretary, live stock inspector at Union Stockyards, Chicago, two live stock inspectors at Union Stockyards, Chicago, six state agents at Union Stockyards, Chicago, two live stock inspectors at National Stockyards, East St. Louis, and board of veterinary examiners; to the insurance superintendent for actuary, chief insurance examiner, three insurance examiners, and attorney; to the state laboratory of natural history for biologist; to the state entomologist for five assistant entomologists; to the state board of health for chief clerk, attorney, and bacteriologist; to the state food commissioner for six food inspectors and two chemists; to the state highway commissionfor road engineer, bridge engineer, township engineer, testing engineer, assistant testing engineer, thirteen assistant engineers, six junior engineers, chief clerk, and resident engineers; to the state geological commission for director; to the rivers and lakes commission for secretary of the commission; to the mine rescue station commission for six instructors; to the Illinois waterway commission for accountants and other appointees; to the Industrial Board for industrial examiner and attorney and others; and to the state water survey for director, engineer, assistant engineer, chemist, and four assistant engineers-it being contended by the appellees that such appropriations are for salaries of officers of the state government, and unconstitutional and void because made by the Omnibus Bill.

The cross-errors also call in question the action of the court in holding constitutional the appropriation of $13,000 made by the Omnibus Bill to the Governor ‘for the care of the executive mansion and grounds, and for heating, lighting, expenses of public receptions, wages and sustenance of employés, automobile and stable expense and other incidental expenses of the executive mansion,’ it being contended that such appropriation is an attempted increase in the salary of the Governor, and is therefore unconstitutional; the appropriation of $2,500 to the secretary of state for ‘telephone toll for members of the General Assembly,’ it being contended that the Constitution fixes and limits all incidental expenses of members of the General Assembly to $50 each; the appropriation of $2,000 to the secretary of state for ‘editing the Blue Book,’ it being contended that such appropriation is an attempted increase in the salary of the secretary of state; the appropriations to the superintendent of public instruction of $1,500 each, for ‘conducting three county examinations,’ of $4,500 per annum for ‘setting questions and correcting manuscripts,’ of $250 per annum for ‘conductingstate examinations, setting questions and correcting manuscripts,’ and of $1,400 for ‘conducting examinations for medical colleges,’ it being contended that such appropriations are increases in the salary of the superintendent of public instruction; the appropriations to the insurance superintendent of $15,000 for ‘expenses of prosecutions of violations of the insurance laws,’ of $2,000 per annum for ‘traveling expenses of attorneys, court costs in re prosecutions of violations of the...