Gillespie v. Barrett

• Decision Date: 15 June 1938
• Docket Number: No. 24549.,24549.
• Citation: 15 N.E.2d 513,368 Ill. 612
• Parties: GILLESPIE v. BARRETT, Auditor of Public Accounts, et al.
• Court: Illinois Supreme Court

368 Ill. 612

15 N.E.2d 513

GILLESPIE

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

No. 24549.

Supreme Court of Illinois.

April 20, 1938.

As Modified on Denial of Rehearing June 15, 1938.

Suit by George B. Gillespie, a taxpayer, to restrain Edward J. Barrett, Auditor of Public Accounts, and another, from drawing or paying warrants against appropriations provided in certain acts. From a judgment for plaintiff, defendants appeal.

Reversed.Appeal from Circuit Court, Sangamon County; Lawrence E. stone, judge.

Otto Kerner, Atty. Gen. (W. F. Gray and Montgomery S. Winning, both of Springfield, of counsel), for appellants.

Louis F. Gillespie, of Springfield, for appellee.

ORR, Justice.

George B. Gillespie, a taxpayer, filed suit in the circuit court of Sangamon county to restrain the auditor of public accounts and the state treasurer from drawing or paying warrants against the appropriations provided in three acts of the Legislature creating the Gettysburg Memorial Commission, the Golden Gate Exposition Commission, and the New York World's Fair Commission. The first act, Laws 1937, p. 192, provides for the creation of a commission of ten members of the House of Representatives, to be appointed by the Speaker, and ten members of the Senate, to be appointed by the President upon the advice and consent of the Senate Executive Committee. This commission is directed to cooperate with the Pennsylvania State Commission for the erection of an ‘Eternal Light Peace Memorial’ upon the site of the battle of Gettysburg. Five thousand dollars is appropriated toward the construction of the memorial, with an additional $2,500 to be used to pay any expenses necessarily incurred in administering the act. The latter two acts, Laws of 1937, pp. 193, 217, provide for the creation of two commissions, one to select a site, erect a suitable building, prepare exhibits, and provide for representation of the state of Illinois at the Golden Gate Exposition in San Francisco in 1939; the other to perform the same functions at the New York World's Fair also to be held in 1939. Both commissions are to consist of the Governor, as chairman, five members of the House of Representatives of the Sixtieth General Assembly to be appointed by the Speaker, five members of the Senate of the Sixtieth General Assembly to be appointed by the President upon the advice of the Executive Committee, and five citizens from the state at large to be appointed by the Governor. One hundred thousand dollars is appropriated in each act to carry out its respective provisions but it is specifically provided that the members of the commissions shall not receive any compensation, directly or indirectly, except the actual expenses incurred in the performance of their duties. The circuit court awarded injunctions as prayed, and the case properly comes here on direct appeal, as constitutional questions are involved.

The power of the Legislature to appropriate money for the purposes outlined in these statutes is not questioned nor is the wisdom of such expenditures of public funds a matter of which we can properly take cognizance. The sole issue here is whether the Legislature has power to appoint its members to commissions authorized to supervise the spending of these appropriations. While reasonable men might differ as to the wisdom of permitting members of the Legislature to perform the duties imposed upon these commissions, yet, as we have often said, it is not the province of the judiciary to interfere with matters of legislative wisdom or policy. As above stated, we are concerned only with questions of legislative power.

Plaintiff contends that the attempted exercise of this power violates article 3 of the Constitution, Smith-Hurd Stats.Const. art. 3, which provides: ‘The powers of the government of this state are divided into three distinct departments-the legislative, executive and judicial; and no person, or collection of persons, being one of these departments, shall exercise any power properly belonging to either of the others, except as hereinafter expressly directed or permitted.’ This provision, however, is merely a statement of the underlying principle of our form of government; it cannot be given such literal interpretation as would absolutely prevent any overlapping of one of the departments of government with another. People v. Franklin, 352 Ill. 528, 186 N.E. 137. In Field v. People, 2 Scam. 79, this court said, in construing a similar provision in the Constitution of 1818: ‘This is a declaration of a fundamental principle; and, although one of vital importance, it is to be understood in a limited and qualified sense. It does not mean that the legislative, executive, and judicial power should be kept so entirely separate and distinct as to have no connection or dependence, the one upon the other; but its true meaning, both in theory and practice, is, that the whole power of two or more of these departments shall not be lodged in the same hands, whether of one or many. * * * This clause, then, is the broad theoretical line of demarcation, between the three great departments of government. But we are not, therefore, when a question arises as to the extent of the powers of either, to confine our views to this general clause, which confers no specific powers. We should look to the division as actually made, to see what powers are clearly granted; for such only can be exercised.’

It has been the uniform holding of this court, both under the...