Owens v. Green

• Decision Date: 15 September 1948
• Docket Number: No. 30347.,30347.
• Citation: 81 N.E.2d 149,400 Ill. 380
• Parties: OWENS et al. v. GREEN.
• Court: Illinois Supreme Court

400 Ill. 380

81 N.E.2d 149

OWENS et al.

v.GREEN.

No. 30347.

Supreme Court of Illinois.

May 20, 1948.

Rehearing Denied Sept. 15, 1948.

Appeal from Circuit Court, Cook County; John Prystalski, judge.

Action by John E. Owens and others against Dwight H. Green, individually and as Governor, and others, for a decree finding an appropriation unconstitutional, invalidating a transaction pursuant thereto and to require an accounting and the return of the sum appropriated to the State Treasury. From a decree dismissing certain counts and the cause for want of equity, plaintiffs appeal.

Affirmed.

G. A. Buresh, of Chicago, for appellants.

George F. Barrett, Atty. Gen., and Essington, McKibbin, Beebe, & Pratt, Lederer, Livingston, Kahn & Adsit, Charles F. Grimes, Elmer M. Leesman, and Eckert & Peterson, all of Chicago (William C. Wines, Raymond S. Sarnow, James C. Murray, Owen Rall, and Walter P. Steffen, all of Chicago, of counsel), for appellees.

WILSON, Justice.

The plaintiffs, John E. Owens and seventy-nine others, as taxpayers, brought an action in the circuit court of Cook County against Dwight H. Green, individually, and as Governor of the State, the Chicago Title and Trust Company, individually, and as trustee under a trust agreement dated October 17, 1946, known as Trust No. 33500, Courts Building Corporation, George S. Lurie, individually, and as president of the corporation, the Treasurer, Director of Finance, Director of Revenue, Director of the Department of Public Works, each individually, and as officers of the State, Charles J. McKenna, assistant to the Director of Finance, Gilbert E. Keebler, and the Metropolitan Life Insurance Company. John E. Owens, the plaintiff first named, is among those who have withdrawn as parties to this action but the cause continues to be entitled in his name. The relief sought was a decree finding an appropriation of $6,000,000 made by the Appropriation Act of 1945, known as Senate Bill No. 417 (Laws of 1945, pp. 249, 257), approved July 17, 1945, unconstitutional; that the transaction whereby the sum of $6,000,000 was withdrawn from the treasury of the State and the title to an office building in Chicago, known as the Burnham Building, placed in the Chicago Title and Trust Company, as trustee, be adjudged void and in violation of numerous constitutional and statutory provisions, and that defendants render an accounting, and return the sum of $6,000,000 to the State Treasury. Thereafter, an amended and supplemental complaint was filed. Numerous motions to strike and dismiss plaintiffs' pleading were interposed by the several defendants. On June 9, 1947, a decree was entered denying plaintiffs' motions for discovery, sustaining motions of the defendants to strike counts 1, 2, 3 and 4 of plaintiffs' amended pleading and dismissing these counts and the cause for the want of equity. The plaintiffs prosecute this appeal.

From the pleadings it appears that section 4 of Senate Bill No. 417 appropriated to the Department of Finance $6,000,000 for: ‘Acquisition of state office facilities in the city of Chicago through the purchase or construction of a building or buildings, including the acquisition of the realty upon which such building or buildings are situated.’ Section 4 appropriated an additional $1,852,690 for other purposes and $300,000 ‘For contingencies: To cover expenditures for purposes for which the amount appropriated in any item above enumerated is or becomes insufficient.’

The Burnham Building is a large office building in Chicago, located at 160 North La Salle Street. The owner of the building in 1945 was the Courts Building Corporation. Plaintiffs are, or were, tenants in the building. On December 2, 1946, the building corporation executed a warranty deed conveying the Burnham Building to the Chicago Title and Trust Company, as trustee, under the provisions of a trust agreement, dated October 17, 1946, known as Trust No. 33500. The deed was caused to be filed in the office of the Recorder of Deeds of Cook County on the day named. On December 31, 1946, the Chicago Title and Trust Company, as trustee, served a notice on the tenants of the Burnham Building notifying them that the building had been sold to it, as trustee; that all leases of space in the building had been assigned to it as of December 31, 1946; that it was entitled to all rents from the building becoming due and payable after December 31, 1946, and notifying the tenants to pay all rents becoming due after January 1, 1947, to the trustee. January 23, 1947, the Chicago Title and Trust Company, as trustee, served another written notice on all tenants in the Burnham Building notifying them that their leases would terminate as of April 30, 1947, and stating that the tenants should deliver possession to the trustee on or before this date.

The sum of $6,000,000, a part of the appropriation made by Senate Bill No. 417, was withdrawn from the treasury of the State and paid to the trustee for the purchase of the Burnham Building. The contract of sale provided that the trustee pay approximately $3,750,000 to the Metropolitan Life Insurance Company to satisfy the first mortgage indebtedness against the property and that the balance be paid to the Courts Building Corporation. The trustee took and holds title to the Burnham Building for the use and benefit of the State of Illinois, as beneficiary of the trust agreement referred to and, since December 31, 1946, has been collecting and receiving rents from the tenants of the building. Out of the proceeds of these rentals the trustee has been paying the current operating expenses of the building, obtaining estimates and entering into contracts for the remodeling of the building, paying agency, managerial and real-estate agent fees to itself, attorneys' fees to special counsel for the trustee, and engineering and architect fees for prospective changes in, and remodeling of, the building to make it available to furnish State office facilities in Chicago.

The foregoing facts are set forth in considerable detail in counts 1 and 2 of plaintiffs' amended and supplemental complaint. The first count charges the appropriationsof $6,000,000 and $300,000, previously mentioned, are unconstitutional and illegal and, in particular, that the appropriation of $6,000,000 contravenes section 16 of article V of our constitution, article III and sections 13, 18 and 33 of article IV, Smith-Hurd Stats.

Count 2 adopts the allegations of the first count and makes the additional allegations that since October 17, 1946, the day the trust agreement was executed, the Chicago Title and Trust Company has usurped the sovereign powers of the State, illegally proceeded to act as owner of the Burnham Building in various specified particulars, and that all of the receipts and payments of moneys by the title company have been, and will continue to be, made without any authority or right whatever and are ex maleficio. Violations of the following constitutional and statutory provisions are alleged to grow out of the ‘Trust Agreement’ plan: Section 17 of article IV of the constitution; sections 1, 2 and 2a of ‘An Act in relation to the payment and disposition of moneys received for or on behalf of the State;’ (Ill.Rev.Stat.1947, chap. 127, pars. 170, 171, 172;) section 1 of ‘An Act in relation to funds or monies received by public officers or agents of public or municipal bodies, by virtue of their offices or positions;’ (Ill.Rev.Stat. 1947, chap. 102, par. 20;) section 28 of the Civil Administrative Code (Ill.Rev.Stat.1947, chap. 127, par. 28).

Court 3 charges that, prior to February, 1945, negotiations were had between certain officers of the State and the Courts Building Corporation for the sale of the Burnham Building to the State for $5,000,000; that the Governor declared there would be no real-estate brokerage commission paid on any building purchased by the State; that the State refused to pay $5,000,000 for the building; that further negotiations eventually resulted in an option from the Courts Building Corporation to the State on April 17, 1945, giving the latter the right to purchase the building for $4,850,000; that, on April 26, 1945, defendants, or some two or more of them, conspired together to permit the option to be forfeited and to divert illegally from the State treasury $6,000,000 to purchase the same building; that, subsequent to April 26, 1945, the other defendants approved, ratified and confirmed the conspiracies as conceived and, by their acts, deeds and transactions, contributed to, aided and abetted the consummation of the conspiracy, and that, in the perpetration of the conspiracy, the sum of $6,000,000 was illegally withdrawn from the State treasury and delivered to the Chicago Title and Trust Company in violation of the constitution, the statutes and the public policy of the State of Illinois. Count 3 continues by making allegations, among others, that defendants, with knowledge of the existence of the option, on April 26, 1945, included an appropriation of $6,000,000 in Senate Bill No. 417; that there was nothing in the Appropriation Act to apprise the legislature the amount was to be used for the purchase of the Burnham Building; that, pursuant to the conspiracy, the option to buy the property for $4,850,000 was permitted by defendants to terminate, lapse and be forfeited on April 30, 1945; that two or more of the defendants agreed to defer the consummation of the transaction until near the end of December, 1946, to divert any suspicion which might attend the purchase of the building for $6,000,000 within a short time after the expiration of the option to purchase the same property for $4,850,000; that defendants caused to be published in the public press as news items statements to the effect the building would not be sold to the State and the Courts Building Corporation so informed plaintiffs in order to obtain the execution and renewal of various leases at...