People ex rel. Barrett v. Finnegan

• Decision Date: 19 December 1941
• Docket Number: No. 26546.,26546.
• Citation: 378 Ill. 387,38 N.E.2d 715
• Parties: PEOPLE ex rel. BARRETT, Attorney General, v. FINNEGAN, Circuit Judge.
• Court: Illinois Supreme Court

378 Ill. 387

38 N.E.2d 715

PEOPLE ex rel. BARRETT, Attorney General,

v.FINNEGAN, Circuit Judge.

No. 26546.

Supreme Court of Illinois.

Dec. 19, 1941.

Original proceeding by the People, on the relation of George F. Barrett, Attorney General, against Philip J. Finnegan, Judge of Circuit Court of Cook County, for a writ of mandamus to compel respondent to expunge from the record certain orders entered by him in a case brought by a taxpayer against the State Treasurer, the Auditor of Public Accounts, and others, to enjoin the use of public funds for the payment of salaries or wages to those alleged to have been unlawfully appointed to positions in violation of the State Civil Service Act.

Writ awarded by a divided court.

FARTHING and WILSON, JJ., dissenting.

George F. Barrett, Atty. Gen., for petitioner.

Michael F. Ryan, of Chicago (Charles P. R. Macaulay, of Chicago, of counsel), for respondent.

SMITH, Justice.

This is an original petition for mandamus filed by leave of the court. The petition is presented on the relation of the Attorney General against Philip J. Finnegan as judge of the circuit court of Cook county. It asks that the writ of mandamus issue compelling respondent to expunge from the record certain orders entered by him in the case of James Gordon, Plaintiff, v. Warren Wright, Treasurer of the State of Illinois et al., Defendants, being cause No. 41-C8711 on the docket of said court. Respondent appeared and filed a motion to dismiss the petition. Following the established rule of this court in suits of this character, the motion to dismiss was treated as a demurrer to the petition and the issues were ordered closed. The cause has been submitted on the petition, the motion of respondent to dismiss, and upon briefs filed by the respective parties.

The facts, in so far as they are material to the decision of the case, may be briefly stated as follows: On October 20, 1941, one James Gordon, appeared ex parte before a judge of the circuit court of Cook county, and presented a petition under the statute (Ill.Rev.Stat.1941, chap. 102, pars. 11-17) for leave, as a taxpayer, to file a suit in equity for an injunction against the State Treasurer, the Auditor of Public Accounts, and others. The purpose of the suit which the petitioner sought leave to file was to restrain the use of public funds for the payment of salaries, wages, or compensation to certain unnamed persons alleged to have been appointed or employed in violation of the State Civil Service act. Leave was granted and the complaint was thereupon filed.

The State Treasurer, Auditor of Public Accounts, the Director of Finance, and the members of the Civil Service Commission, were named therein as defendants.

After setting out certain rules adopted by the Civil Service Commission, the complaint alleged that certain unnamed civil service employees had been wrongfully discharged from their respective positions; that the vacancies thus created had been filled by the appointment of certain unnamed persons who had not qualified under the Civil Service law, and whose names were not on the eligible lists; that such removals and appointments were made in violation of law; that the names of the persons who it was alleged had been unlawfully appointed would be certified by the Civil Service Commission and the Director of Finance as persons to whom salaries, wages, or compensation was due, and that payments thereof would be unlawfully made to them by the Auditor of Public Accounts and State Treasurer unless restrained by injunction.

The prayer of the complaint was that the defendants who were members of the Civil Service Commission be enjoined from certifying to the Auditor of Public Accounts any pay-rolls or accounts containing or including the names of persons ‘illegally appointed or employed in violation of’ the Civil Service act; from certifying and approving pay-rolls containing names of persons holding positions under temporary appointments under the classified service, which can be filled by certification and appointment from existing eligible registers, created under the act; restraining and enjoining the Auditor of Public Accounts from drawing, signing, or issuing any warrants or vouchers, for the purpose of paying, or causing to be paid, salaries or compensation to any person or persons illegally holding positions in the classified service, to which certification and appointments can be made from eligible lists; from signing, authorizing, or drawing any warrants for the payment of salaries or wages to persons illegally appointed or employed in violation of the act; from drawing, signing, issuing, or causing to be drawn, signed or issued, any warrants to be paid from the appropriation of $8550 appropriated for the biennium, for the office of Attorney General, for the salary, or wages, of a court reporter. Also restraining the State Treasurer from counter-signing or honoring any warrants or vouchers drawn by the Auditor in payment of the salaries of any such employes and ‘particularly for those illegally holding positions for which there are existing eligible registers from which certifications and appointments can be made,’ in accordance with the Civil Service act; also restraining and enjoining the Director of Finance from approving vouchers, bills and claims of the several departments of State for the payment of salaries to any persons, illegally appointed or employed in the classified service, to positions for which certifications can be made from existing eligible registers, and from issuing his certificate for the issuance of any such warrants. Also restraining all the defendants from illegally paying or causing to be paid, approving, certifying, or causing to be approved, or certified for payment, the salaries, wages, or compensation of persons ‘holding temporary appointments in violation of’ the Civil Service law, ‘where certifications and appointments can and should be made from existing eligible registers;’ and from illegally disbursing funds from the treasury of the State of Illinois for the illegal payment of salaries and wages for persons ‘illegally appointed or employed in violation of’ the Civil Service act.

The defendants appeared by the Attorney General and filed their motion to strike the complaint and dismiss the suit. By this motion they challenged the sufficiency of the complaint, in several particulars. It was alleged in the motion to strike that plaintiff was not, on the facts alleged in the complaint, entitled to equitable relief; that he could not maintain the suit; that he sought to question the right of certain persons to hold the offices to which they had been appointed, and that a court of equity had no jurisdiction of the subject matter. It asked that the complaint be stricken and the suit be dismissed on these and other grounds.

The motion to strike the complaint was overruled. The Attorney General elected to stand and abide by his motion and refused to plead further. Thereupon respondent, as judge of the circuit court, entered a final decree, by which it was ordered that a permanent writ of injunction issue as prayed for in the complaint.

The order granting the injunction was so general in its terms by simply referring to the prayer of the complaint as to its scope and extent, without naming anyone alleged to have been illegally removed from or appointed to an office or position, that it could only result in great confusion and injustice.

A further analysis, in detail, of the charges found in that complaint, is wholly unnecessary to a decision of this case. The gravamen of the charges is that certain civil service employees had been improperly dismissed from their positions and that others, not on eligible lists, had been unlawfully appointed to such positions. This is the sole basis on which the plaintiff in that case grounded his right, as a taxpayer, to enjoin the use of public funds for the payment of salaries or wages to those alleged to have been unlawfully appointed to positions under the classified service. No specific case is alleged or referred to in the complaint, in which it is claimed or alleged that any employee was wrongfully appointed to a position in the classified service. The complaint abounds in meaningless generalities. The injunction amounts to nothing more than a general command to the State officials that no funds shall be, by them, disbursed unlawfully. Its postulates are no different from the general commands of the law itself.

By the petition for mandamus filed herein the Attorney General challenges the jurisdiction of the circuit court of Cook county and respondent, as judge of said court, to grant the injunction at the suit of a taxpayer or otherwise.

It is first contended by respondent that the Attorney General cannot maintain this suit for mandamus, as relator, against a judge of a court of record, as respondent, in order to have expunged a decree of the court, without making parties to the petition for mandamus either the plaintiff or the defendants to the injunction proceeding, and without showing in what respect the public interest is injured by the injunction. No authorities are cited by respondent in support of this proposition and we have found none.

The office of Attorney General, as it existed at the common law, is one of ancient origin. He was the only law officer of the Crown. 4 Reeves Hist.Eng.Law, chap. 25, p. 122. The prerogatives which pertained to the Crown of England under the common law, in this country are vested in the people and the necessity for the existence of a public officer charged with the protection of public rights and the enforcement of public duties, by proper proceedings in the courts of justice, is just as imperative here as there.

In this State the constitution, by creating the office of Attorney General under its well-known common law designation and providing that he shall perform such duties as may be prescribed by law, ingrafted...