Appropriations for expenses of government. It is the duty of the General Assembly to make appropriations for the expenses of the government of the state. A state officer cannot incur obligations beyond the amount of appropriations made for his office, and pay them out of fees collected by his office.75

Increasing the aggregate amount of appropriations. Appropriations made at a special session of the General Assembly obviously have the effect of increasing the aggregate amount of appropriations made at the preceding regular session of the General Assembly, and, in the opinion of the Attorney General, bills making such appropriations must, therefore, be passed by a two-thirds vote." Under the same reasoning all deficiency appropriation bills must be passed by a two-thirds vote.

Exceeding the revenue. The word "revenue" as used in this section includes all sources of revenue, and is not limited to revenue raised by taxation."

Appropriations must be for a specific sum; otherwise it would be impossible to ascertain whether or not the aggregate amount of appropriations exceeded the amount authorized to be raised. Thus, an appropriation to the State Treasurer of "such sums as may be necessary" to refund taxes, is void. Moreover, section 16 of article 5 expressly requires appropriations to be made in specific sums. (See discussion article 5, section 16, subheading, "Necessity for itemization").

Lapse of appropriations. All appropriations whether general or special, cease or lapse at the expiration of the first fiscal quarter after the adjournment of the next General Assembly," and the Auditor of Public Accounts has no authority, nor can he be compelled by a writ of mandamus, to issue a warrant against an appropriation after it has lapsed.80 Continuing appropriations are, therefore, forbidden by this section of the constitution.

Debts. The General Assembly cannot contract a debt in excess of $250,000 unless the law contracting the debt is submitted to and approved by the voters. Such a law must be published three months at least before the vote of the people thereon, but there is no need for a separate law providing for its publication. The General Assembly may provide for its publication in the law itself, by resolution or by a separate law.81

The General Assembly must provide for the payment of the interest on the debt proposed to be created, and it may do this by levying a tax for that purpose. But if a tax is levied, the law levying the tax must be submitted to the people with the law authorizing the creation of the debt. However, there is no need for two separate laws. The law creating the debt may also provide for the tax levy.82

A law creating a debt in excess of $250,00, to be adopted, must receive a majority of the votes cast for members of the General Assembly at the general election at which it is submitted. Under the minority representation system (article 4, sections 7, 8) each voter has three votes for members of the

75 Whittemore v People, 227 Ill. 453 (1907).

76 Veto Messages 1911-12, p. 34.

77 Fergus v Brady, 277 III. 272 (1917).

78 Fergus v Russel, 270 Ill. 304 (1915). Report Attorney General 1910, p. 125. 79 People v Lippincott, 64 Ill. 256 (1872); People v Swigert, 107 Ill. 494 (1883).

80 People v Brown, 281 Ill. 390 (1917); People v Board of Trustees, 283 Ill. 494 (1918).

81 Mitchell v Lowden, 288 Ill. 327 (1919).

house of representatives. If the provision which requires that such a law, in order to be adopted, must receive a majority of all votes cast for members of the General Assembly is given a literal construction, it is apparent that no law creating a debt in excess of $250,000 could be adopted. This provision, therefore, must be interpreted to mean that such a law is adopted if it receives a number of votes equal to a majority of the number of voters voting for members of the General Assembly."

83

In 1908 an amendment to the constitution (separate section relating to the canal) was adopted authorizing a bond issue of $20,000,000 to defray the cost of constructing a deep waterway. In the opinion of the Attorney General an act of the General Assembly authorizing the issuance of bonds under that amendment to the constitution need not be submitted to the people under the provisions of this section of the constitution.8+

(For an historical statement with reference to the limitation on the power of the General Assembly to contract debts, see Constitutional Conventions in Illinois, Second Edition, pp. 13, 28, 42.)

Section 19. The General Assembly shall never grant or authorize extra compensation, fee or allowance to any public officer, agent, servant or contractor, after service has been rendered or a contract made, nor authorize the payment of any claim, or part thereof, hereafter created against the State under any agreement or contract made without express authority of law; and all such unauthorized agreements or contracts shall be null and void: Provided, the General Assembly may make appropriations for expenditures incurred in suppressing insurrection or repelling invasion.

Extra compensation. A firemen's pension law is not in violation of this provision of the constitution. Such a law does not authorize extra compensation even as to those persons who were in the service prior to its adoption. Payments made thereunder are in the nature of deferred payments to insure long continued service.$5

Express authority of law. An agency or arm of the state government can incur only such obligations as it is authorized by law to create. The authority of such an agency to incur obligations, even though within the general scope of the functions imposed upon it by law, is, with a few exceptions, limited to the amount of the existing appropriations made to that agency; and, generally if the appropriations are insufficient to meet the obligation incurred, the contract creating the obligation is void as being made without express authority of law. What is express authority of law? "That authority is express which confers power to do a particular, identical thing set forth and declared exactly, plainly and directly, with well defined limits, and the only exception under which a contract exceeding the amount appropriated for the purpose may be valid is where it is so expressly authorized by law. An express authority is one given in direct terms, definitely and explicitly, and not left to inference or to implication, as distinguished from authority which is general, implied or not directly stated or given. An example of such express authority is found in one of the deficiency appropriations to the Southern Illinois penitentiary which has 83 Mitchell v Lowden, 288 Ill. 327 (1919).

84 Report Attorney General 1915, p. 62.

85 People v Abbott, 274 Ill. 380 (1916); Hughes v Traeger, 264 Ill. 612 (1914). 86 Townsend v Gash, 267 Ill. 578 (1915); Veto Message Senate Journal 1887, p. 974.

87

Fergus v Brady, 277 Ill. 272 (1917); Report Attorney General 1914, p. 677.

been paid, and serves only as an illustration.

The authorities in control of the penitentiary are required by law to receive, feed, clothe and guard prisoners convicted of crime and placed in their care, involving the expenditure of money, which may vary on account of the cost of clothing, food and labor, beyond the control of the authorities, and which could not be accurately estimated in advance for that reason or by determining the exact number of inmates. To extend the meaning of the constitutional requirement that there shall be express authority of law for the creation of a debt or the making of an agreement or contract in excess of an appropriation for the purpose beyond the meaning we have given to it would destroy and nullify the provisions of the constitution. The power of the General Assembly to make appropriations for any purpose is not exhausted by one appropriation but additional appropriations may be made before an indebtedness is incurred, as occasion may require."

1188

If a statute prescribes the methods and conditions under which a contract with the state shall be executed, the provisions must be complied with in every particular, or the contract will be void as not being made with express authority of law. Thus, if a statute requires that printing contracts with the state shall be let to the lowest bidder after a full opportunity for competition, no printing contract with the state will be valid unless there has been an opportunity for competition, and if one printer obtains such a contract as the result of an agreement or understanding with other printing establishments that there shall be no competition, the contract is void.9

Section 20. The State shall never pay, assume or become responsible for the debts or liabilities of, or in any manner give, loan or extend its credit to, or in aid of any public or other corporation, association or individual.

This section does not prohibit appropriations from the state treasury to private corporations or associations, if the money appropriated is to be spent for a public purpose. The state may make use of private agencies in carrying out its governmental functions. Thus, an appropriation to the Illinois State Normal University, a private corporation, is valid," and so is an appropriation to the State Beekeepers' Association.91 But an appropriation for the expenses of a legislative committee created by resolution to sit after the adjournment sine die of the General Assembly is void, because the General Assembly has no legal existence after such adjournment, and the committee is but a group of private individuals whose expenses cannot be paid by the state without violating this provision of the constitution.92

The provisions of the road and bridge law authorizing the state, under certain terms and conditions, to pay one-half the cost of constructing roads in such counties as will avail themselves of the offer by paying the other half of the cost, does not violate this section of the constitution. The construction of roads is a public purpose and the state, if it saw fit, could construct the roads and pay the total cost out of the state treasury.93

88 Fergus v Brady, 277 Ill. 272 (1917).

89 Dement v Rokker, 126 Ill. 174 (1888).

90 Boehm v Hertz, 182 111. 154 (1899); see, also, State Board of Agriculture v Brady, 266 Ill. 592 (1915); Illinois Farmers' Institute v Brady, 267 Ill. 98 (1915).

91 Report Attorney General 1910, p. 114. See Report Attorney General 1910, p. 756; Veto Messages 1919, p. 31.

92 Fergus v Russel, 270 Ill. 304 (1915).

The wife abandonment act of 1913 is not unconstitutional, because it authorizes the court, in the event of the conviction of the defendant, to direct that a part or the whole of the fine imposed be paid to the abandoned wife. This section of the constitution was not intended to affect the disposition of money obtained as a result of the infliction of penalties for the violation of the criminal laws.

The right of the General Assembly to authorize the payment of additional compensation to an officer for additional duties imposed upon him is not affected by this section, and the General Assembly may provide for such additional compensation, if other sections of the constitution, such as those forbidding an increase in salary during the term of office, are not violated.95

Section 21. The members of the General Assembly shall receive for their services the sum of five dollars per day, during the first session held under this Constitution, and ten cents for each mile necessarily traveled in going to and returning from the seat of government, to be computed by the Auditor of Public Accounts; and thereafter such compensation as shall be prescribed by law, and no other allowance or emolument, directly or indirectly, for any purpose whatever; except the sum of fifty dollars per session to each member, which shall be in full for postage, stationery, newspapers, and all other incidental expenses and perquisites; but no change shall be made in the compensation of members of the General Assembly during the term for which they may have been elected. The pay and mileage allowed to each member of the General Assembly shall be certified by the Speakers of their respective houses and entered on the journals, and published at the close of each session.

In General. The provisions of this section forbidding any change in the compensation of members of the General Assembly is one of a series of similar provisions in the constitution of 1870. Special laws changing the "fees, percentage or allowance of public officers during the term for which said officers are elected or appointed" are forbidden (article 4, section 22). The salaries of the elective executive state officers cannot be changed during their official terms (article 5, section 23). The salary or compensation of judges of the Supreme and circuit courts, and of the circuit and superior courts of Cook County, cannot be changed during the terms for which they are elected (article 6, sections 7, 16, 25.) And the same prohibition exists with reference to municipal (article 9, section 11) and county officers (article 10, section 10). The Supreme Court has said that when all of these provisions are construed together, it is apparent that the members of the convention of 1869-70 intended that the fees, salary or compensation of no public officer, who should be elected for a definite or fixed term, should be changed in any manner during his term of office.96 If this was the intention of the framers of the constitution of 1870, it might have been accomplished by a single section designed to cover or embrace all public officers elected or appointed for a definite or fixed term. For example, when the constitutional framers agreed to prohibit the extension of the term of office of any public officer, they did not seek to accomplish their purpose by a series of prohibitions but merely provided (article 4, section 9 People v Heise, 257 Ill. 443 (1913).

95 City of Chicago v Wolf, 221 Ill. 130 (1906). 96 Wolf v Hope, 210 Ill. 50 (1904).

28) that "no law shall be passed which shall operate to extend the term of any public officer after his election or appointment."

However, it must be remembered that while the Supreme Court has held that all officers "occupying offices created by the laws of the state in and for any of the political subdivisions of the state" are municipal officers whose salaries cannot be altered during their term of office (see discussion under subsequent subheading entitled "Municipal officers") it has not held that the salaries of appointive state officers, such as the directors of the several departments created by the "Civil Administrative Code," who are to hold office for a definite term of four years, may not be changed during their terms of office. And since the constitutional limitation on the power of the General Assembly to change the salaries of state officers (article 5, section 23) applies only to the elective state officers created by article 5, it is by no means certain that the salaries of appointive state officers may not be changed during their terms, even though they are appointed for a definite or fixed term.

Do these constitutional provisions mean that the salary of a public officer cannot be increased after his election or appointment, even though his term of office has not yet begun? The Supreme Court has said: "It must be conceded on principle, that there is just as much reason for a constitutional provision prohibiting an increase in the salaries of officers who have been elected to office, and who are sure of holding office, but whose terms have not commenced, as there is prohibiting an increase in salaries of those actually in office. The relators in this case had been elected before the bill increasing their salaries was passed by the legislature, and as to them and their associates elected at the same time it must be said that such enactment is clearly and unmistakably contrary to the spirit and intent of the constitution." However, the court in that case also held that the bill increasing the salaries of the officers seeking to obtain the increase became a law after the terms of the officers had commenced. Hence, its statement that these constitutional limitations apply to an officer, who has been elected, but whose term has not yet begun, may not have been necessary to the decision. But regardless of the correct holding on this point, it has been held that, in so far as the judges of circuit courts and the judges of the circuit and superior courts of Cook County are concerned, the provisions forbidding changes in salaries apply to the terms of office and not to the individuals in office. (See discussion subsequent subheading "Judicial officers"). And it has also been held that the fixing of an officer's salary after he has actually entered upon the duties of his office, is not forbidden, if the salary was not fixed at all prior to the time of his election or appointment, or prior to the time that he entered upon his duties.98

The salary of an officer, who in an ex officio capacity, holds another office. cannot be increased during his term on the ground that his ex officio position carries with it additional duties." Thus, the constitution forbids an increase in the salary of a county treasurer during his term, even though in the meantime he is called upon to perform ex officio, the duties of the office of supervisor of assessments,1 although the county board probably could make additional allowances to the treasurer for the increased expenses of his office in connection with the performance of his new duties as supervisor of assessments.2

Members of the General Assembly. An appropriation of $2,500 to the Secretary of State for the telephone tolls of members of the General Assembly is void, because it conflicts with the provisions of this section which

97 People v Sweitzer, 280 Ill. 436 (1917).

98 Purcell v Parks, 82 Ill. 346 (1876). See Report Attorney General 1914, p. 900.

99 Kilgore v People, 76 Ill. 548 (1875); see, also, Whittemore v People, 227 III. 453 (1907).

Foote v Lake County, 206 Ill. 185 (1903).