law and make its effectiveness subject to a referendum at an election to be held some months after July 1 following the passage of the law, without violating this provision of the constitution.*5 It should also be noted that under the terms of the constitution, itself, čertain laws do not become effective until approved by a vote of the people. (See discussion article 4, section 18, subheading, "Debts"; see, also, discussion article 11, section 5, sub-heading, "Referendum requirements"; see, also, article 4, section 33; article 14, sections 1, 2; separate section relating to canals.) This clause construed in connection with section 16 of article 5, has given rise to a rather serious controversy which has not been decided by the Supreme Court. Section 16 of article 5, after directing that all bills passed by the General Assembly, shall be presented to the Governor for his approval or veto, provides that "any bill which shall not be returned by the Governor within ten days (Sundays excepted) after it shall have been presented to him, shall become a law in like manner as if he had signed it, unless the General Assembly shall by their adjournment prevent its return, in which case it shall be filed with his objections in the office of the Secretary of State, within ten days after such adjournment, or become a law." The General Assembly passes a bill on June 25 and adjourns sine die on June 26. The Governor neither signs nor vetoes the bill and files it with the Secretary of State after July 1, but within ten days after June 26. When does such a law become effective? The Attorney General, in 1915, held that it became effective from the date on which the certificate of the Secretary of State was attached thereto.46 Others, however, have contended that such a law does not become effective until July 1 following its filing with the Secretary of State. But suppose that the Governor neither signs nor vetoes the bill and files it with the Secretary of State on June 29. Does it then become an effective law on July 1? This, of course, depends on the question whether or not the Governor can waive the full ten days allowed him by the constitution for the consideration of bills. If he cannot waive the full ten days, then the bill cannot become effective until after July 1, although it is filed on June 29. In People v Rose, the court held that the Governor cannot waive the full ten days, and this means ten days after the adjournment and not ten days after the passage of the bill, because the constitution provides that, in the event of the adjournment of the General Assembly before the expiration of the ten days, the Governor shall have ten days after adjournment. If this is true, it would seem that the Attorney General's opinion of 1915 is not necessarily correct. If such a bill cannot become a law until ten days after adjournment, even though filed with the Secretary of State before the expiration of the ten days, the Secretary of State cannot by immediately attaching his certificate to the bill, cause it to become an effective law before the expiration of the ten days. That would mean that a measure became effective before it became a law. (See discussion article 5, section 16, sub-heading, "Date of going into effect.") Section 14. Senators and representatives shall, in all cases, except treason, felony or breach of the peace, be privileged from arrest during the session of the General Assembly, and in going to and returning from the same; and for any speech or debate in either house, they shall not be questioned in any other place. This section of itself does not give the members of the General Assembly the right or privilege to be exempt from service of civil process, 45 Report Attorney General 1915, p. 464. 40 Report Attorney General 1915, p. 397; see, also Report Attorney General 1917-18, p. 573. 47 167 Ill. 147 (1897); but see People v McCullough, 210 Ill. 488 (1904). but it does not deprive the General Assembly of the power to exempt from such service, by general law, members of the General Assembly and other persons in the same class.1 Section 15. No person elected to the General Assembly shall receive any civil appointment within this State from the Governor, the Governor and Senate, or from the General Assembly, during the term for which he shall have been elected; and all such appointments and all votes given for any such members for any such office or appointment, shall be void; nor shall any member of the General Assembly be interested, either directly or indirectly, in any contract with the State, or any county thereof, authorized by any law passed during the term for which he shall have been elected, or within one year after the expiration thereof. In the opinion of the Attorney General, a member of the General Assembly during his term of office cannot serve on a commission empowered to exercise executive functions.49 Membership on such a commission, while it may not be an office," is nevertheless, a civil appointment.51 But in his view this section probably does not prohibit the General Assembly from creating by law, an investigation commission, composed of members of the General Assembly, charged with the duty of inquiring into certain subjects or questions and reporting the results of its investigations to the succeeding General Assembly, because such a commission in no proper sense exercises executive functions.52 In 1884 the Attorney General held that the appointment by the railroad and warehouse commission of a state senator as weigh-master was not in violation of the constitution.53 It does not appear, however, that the Attorney General considered this section of the constitution in rendering his opinion. It seems that he merely held that such an appointment was not in violation of section 10 of article 5. (See article 4, section 25; article 8, section 4). Section 16. The General Assembly shall make no appropriation of money out of the treasury in any private law. Bills making appropriations for the pay of members and officers of the General Assembly, and for the salaries of the officers of the government, shall contain no provision on any other subject. Private laws. The provision relating to appropriations in private laws does not deprive the General Assembly of its power to pass acts making appropriations to pay just claims against the state. An act which does nothing more than make an appropriation to an individual to pay his claim against the state, does not violate this section of the constitution. "The meaning of the provision 'that the General Assembly shall make no appro 48 Phillips v Browne, 270 Ill. 450 (1915). 49 Veto Messages 1907, p. 24; Report Attorney General 1915, p. 13. 51 Veto Messages Senate Journal (1st Spec. Session) 1915-16, p. 83. priation of money out of the treasury in any private law' we do not understand to be that no appropriation can be made to a private person or individual, but it means that no appropriation for any purpose shall be made out of the treasury in any private law."54 Pay of state officers. Acts making appropriations for the salaries of members of the General Assembly and state officers, or any one of them, can contain no other provision. An act creating the office of state factory inspector, and prescribing the powers and duties of the office, cannot contain an appropriation to pay the salary of such officer, although it may contain an appropriation to defray the ordinary expenses of the office thus created.55 And an act creating free employment agencies cannot contain an appropriation for the salaries of the superintendents of these agencies.56 The prohibition as to other provisions in an act making an appropriation for the pay of state officers applies to appropriations for other purposes just as it does to any other substantive legislation. An act making an appropriation for the salaries of state officers cannot contain appropriations for the wages of state employees, or for the operating expenses of any state institution, and an act making appropriations for the ordinary and contingent expenses of the state government cannot include appropriations for the salaries of state officers.57 This provision of the constitution has caused considerable difficulty in making appropriations. It is oftentimes very difficult to determine whether a person engaged in the state service is an officer or employee. The constitution (article 5, section 24) defines an office as a public position created by the constitution or law, continuing during the pleasure of the appointing power, or for a fixed time, with a successor elected or appointed, and an employment as an agency for a temporary purpose, which ceases when that purpose is accomplished. The Supreme Court in Fergus v Russel lays down the rules by which it may be determined whether a person in the state service is an officer or employee, but the rules add little, if anything, to the constitutional definition.59 (See discussion article 5, section 24, subheading, "Salaries of state officers.") What is the effect of including other provisions in an act making appropriations for one or more state officers? If the appropriations are merely incidental to the other provisions, then only the appropriations are void. If the main purpose of the bill is to make appropriations for state officers, then the other provisions are void and the appropriations for state officers will stand. However, if the title of such an act expresses both subjects, the whole act will fall, because it will then violate the constitutional provision (article 4, section 13) relating to titles.62 A question sometimes arises as to whether or not an act dealing with other substantive legislation makes an appropriation for the salary of a state officer. Section 11 of the parole law of 1899 provided as follows. "There shall be allowed to each member of the board of pardons the sum of $1,500 per year to compensate him for services performed under this act, said 54 Fergus v Russel, 277 Ill. 20 (1917). 55 Ritchie v People, 155 Ill. 98 (1895). 56 Mathews v People, 202 Ill. 389 (1903); see. also, People v Olson, 280 Ill. 610 (1917); Report Attorney General 1910, pp. 195, 234; 1912, p. 1013; 1914, p. 285. 57 Fergus v Russel, 270 Ill. 304 (1915). 58 270 III. 304 (1915). The opinion of the Supreme Court in this case can be better understood by referring to the opinion of the lower court in the same case. The opinion of the lower court may be found in the Report of the Attorney General 1916 pp. 16-24. 59 See Report Attorney General 1915. p. 47; Bunn v People, 45 Ill. 397 (1867); see, also, State Board of Agriculture v Brady, 266 Ill. 592 (1915); Illinois Farmers' Institute v Brady. 267 Ill. 98 (1915). 60 Ritchie v People, 155 Ill. 98 (1895); Mathews v People, 202 Ill. 389 (1903); Fergus v Russel. 270 111. 304 (1915). 61 Fergus v Russel 270 I11. 304 (1915). 62 Ritchie v People. 155 Ill. 98 (1895); People v Joyce, 246 Ill. 124 (1910); People v Olson, 280 Ill. 610 (1917). 63 sum to be payable monthly on certificate of the board approved by the Governor, and payable out of any money in the treasury not otherwise appropriated." It was contended that this was an appropriation for the salary of a state officer, but the court held that section 11 was merely a direction and not an appropriation. Three judges dissented from this view, however, on the ground that it was in conflict with the decision in Mathews v People.64 This section of the constitution applies only to appropriations payable out of the state treasury. It does not apply to appropriations made by a municipality.65 Section 17. No money shall be drawn from the treasury except in pursuance of an appropriation made by law, and on the presentation of a warrant issued by the Auditor thereon; and no money shall be diverted from any appropriation made for any purpose, or taken from any fund whatever, either by joint or separate resolution. The Auditor shall, within sixty days after the adjournment of each session of the General Assembly, prepare and publish a full statement of all money expended at such session, specifying the amount of each item, and to whom and for what paid. Appropriations by law. Money cannot be withdrawn from the treasury under a joint resolution.66 Money belonging to the state, no matter how acquired, whether as fees for services rendered by the state or otherwise, must be paid into the state treasury and can be withdrawn only in pursuance of an appropriation made by law. Fees collected by a state officer for services rendered by him as such officer cannot be expended by him for the maintenance and operation of his office but must be paid into the state treasury.67 Money paid into the state treasury as a result of an error cannot, in the opinion of the Attorney General, be refunded except under an appropriation made by law. And it has also been held by the Attorney General that money directed to be paid into the state treasury under an Act of Congress, can be withdrawn from the treasury only under an appropriation made by law, even though the money must be used for a specific purpose.c 68 Auditor's warrant. A provision of a statute authorizing the payment of money out of the state treasury on the warrant of a county judge is void. Money can be withdrawn from the treasury only on the warrant of the Auditor of Public Accounts. The Auditor of Public Accounts is the official examiner of the accounts and claims against the state, and "it is not within the power of the General Assembly to deprive the Auditor of Public Accounts of the power conferred upon him by the constitution to audit claims and charges against the state created in pursuance of an appropriation made by law."" If a sum of money is appropriated to a state agency, it has no right to demand that the Auditor of Public Accounts issue a warrant for the total amount payable to that 63 People v Joyce, 246 Ill. 124 (1910). 64 202 Ill. 389 (1903). 65 City of Chicago v Wolf, 221 Ill. 130 (1906). 66 Burritt v Commissioners of State Contracts, 120 Ill. 322 (1887). 67 Whittemore v People, 227 Ill. 453 (1907); Board of Trade v Cowen, 252 Ill. 554 (1911); People v Sargent, 254 Ill. 514 (1912); Report Attorney General 1912, pp. 929, 1013. 68 Report Attorney General 1910, p. 196; 1914; p. 224. 69 Report Attorney General 1914, p. 194. 70 People v. Evans, 247 Ill. 547 (1910). agency. That would deprive the Auditor of his right to audit all claims against the state. The agency may incur obligations, and if approved by the Auditor, it will be his duty to issue his warrants against the appropriation for the payment thereof. But the General Assembly may provide that vouchers against appropriations shall be approved by the Governor, or some other officer, before being submitted to the Auditor for the latter's approval, and this in no way interferes with the power of the Auditor to audit all bills before the payment thereof by the state."2 Diversion of appropriations. An appropriation cannot be diverted by a joint resolution of the General Assembly," and this clause, while it relates to the diversion of an appropriation by a joint or separate resolution, has been construed by the Attorney General to prevent the use of money for a purpose other than that for which the money was appropriated. Thus, an appropriation for $200 for a secretary, cannot be used for any purpose except that of paying the salary of a secretary." Section 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 twothirds 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 be paid out of the State treasury, from funds belonging to the State, shall end with such fiscal quarter: Provided, the State may, to meet casual deficits or failures in revenues, contract debts, never to exceed in the aggregate two hundred and fifty thousand dollars; and moneys thus borrowed shall be applied to the purpose for which they were obtained, or to pay the debt thus created, and to no other purpose; and no other debt except for the purpose of repelling invasion, suppressing insurrection, or defending the State in war, (for payment of which the faith of the State shall be pledged), shall be contracted, unless the law authorizing the same shall, at a general election, have been submitted to the people, and have received a majority of the votes cast for members of the General Assembly at such election. The General Assembly shall provide for the publication of said law for three months, at least, before the vote of the people shall be taken upon the same; and provision shall be made, at the time, for the payment of the interest annually, as it shall accrue by a tax levied for the purpose, or from other sources of revenue; which law, providing for the payment of such interest by such tax, shall be irrepealable until such debt be paid: And, provided, further, that the law levying the tax shall be submitted to the people with the law authorizing the debt to be contracted. 73 People v Lowden, 285 Ill. 618 (1918). 73 Burritt v Commissioners of State Contracts, 120 Ill. 322 (1887). 74 Report Attorney General 1917-18, p. 40; 1914, p. 741. |