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

Mr. Justice Cooke

delivered the opinion of the court:

On July 9, 1915, J. B. Fergus, one of the appellees, filed his bill of complaint in the circuit court of Sangamon county against Andrew Russel, State Treasurer, to restrain the payment out of the State treasury of certain appropriations made by the Forty-ninth General Assembly of this State. A summons was issued and served upon Russel, as State Treasurer, returnable tO' the September term, 1915, of the circuit court. Thereafter, on July 31, 1915, the complainant, by leave of court, filed an amended bill, and James J. Brady, Auditor of Public Accounts, was joined with the State Treasurer as a defendant to the suit. The appropriations attacked by the amended bill appear in an act entitled “An act to provide for the ordinary and contingent expenses of the State government until the expiration of the fiscal quarter after the adjournment of the next regúlar session of the General Assembly,” approved June 29, 1915, in force July 1, 1915, (Laws of 1915,' p. 203,) which act, pending its passage, was commonly referred to as the Omnibus Bill and is generally known by that title. On August 6, 1915, the defendants answered the amended bill, and it. was stipulated that the cause should be heard at the May term, 1915, of the circuit court and should be considered and determined by the court upon the amended bill and answer. Before the court had announced a decision, Frederick W. Burlingham was, upon his motion, permitted to become a co-complainant and consented to be bound by all proceedings theretofore taken in the cause. Thereafter, on August 30, 1915, a decree was entered in the cause, finding that the appropriations made by the Omnibus Bill to the Attorney General for one assistant Attorney General in charge of the inheritance tax office in Cook county and for one clerk in said office; to the State Public Utilities Commission for chief grain inspector, for fourteen deputy grain inspectors, for four deputy grain inspectors, for one registrar, for three members of the appeal committee, for deputy chief inspector at East St. Louis and for four deputy inspectors at East St. Louis; to the State Board of Pardons for the secretary of the board; to the State Board of Health for the executive officer of the board; to the State Civil Service Commission for the secretary of the commission; to the Game and Fish Conservation Commission for extra wardens; to the Illinois State Board of Examiners of Architects for the secretary and members of the board; to the State Board of Dental Examiners for the secretary of the board; to the Barbers’ State Board of Examiners for the members of the board; to the State Inspector of Apiaries for the chief inspector; to the State Board of Pharmacy for the members of the board; to the State Fire Marshal for twenty-five deputy fire marshals; to the State Board of Examiners of Registered Nurses for the secretary and members of the board; to the Illinois Stallion Registration Board for the secretary and members of the board; to the Industrial Board for the secretary of the board; to the Board of Examiners for Horseshoers for the secretary and members of the board; to the State Board of Optometry for the secretary and members of the board; and to the State Board of Dental Examiners for the members of the board, are appropriations for salaries of officers of the State government and are unconstitutional and void because made by the Omnibus Bill. The decree further found that the appropriation of $2000 made by the Omnibus Bill to the Lieutenant-Governor for traveling expenses is unconstitutional and void because such appropriation increases the salary of the Lieutenant-Governor, and that the appropriation to the State Treasurer of such sum as may be necessary to refund the taxes on real estate sold or paid on error and for over-payment of collectors’ accounts under laws governing such cases, to. be paid out of proper funds, is void because no specific sum is appropriated for such purposes. The decree found that all other appropriations challenged by the amended bill are constitutional and valid. The Auditor is by -the decree perpetually enjoined from issuing, and the State. Treasurer from signing, honoring or paying, any warrants on account of any of the appropriations found to be unconstitutional and void. The State Treasurer and the Auditor of Public Ac-' counts have prosecuted this appeal, and urge as grounds for reversal of the decree, first, that the complainants have shown no such interest in the subject matter of the suit as entitles them to maintain this action; and second, that, the court erred in holding each of the appropriations above specified unconstitutional and void.

The appellees, Fergus and Burlingham, have assigned cross-errors calling in question the action of the circuit court in holding constitutional and valid the appropriations made by the Omnibus Bill to the Attorney General for three other assistants in the inheritance tax office in Cook county; to the State Public Utilities Commission for assistant secretaries, five private secretaries to commissioners, librarian and historian, assistant counsel, three attorneys, two assistant attorneys, assistant chief engineer, chief engineer railroad division, assistant engineer railroad division, chief engineer accident division, chief engineer gas division, chief engineer electrical division, chief engineer telegraph and telephone division, chief engineer service division, mechanical engineer, thirteen assistant engineers, chief accountant, four assistant accountants, five assistant statisticians, utility rate expert, assistant utility rate expert, transportation rate expert, four assistant transportation rate experts, two assistant grain inspectors, two supervising grain inspectors, chief grain clerk inspection division, chief grain clerk and supervising inspector at East St. Louis; to the State Board of Live Stock Commissioners for secretary, live stock inspector at Union Stock Yards, Chicago, two live stock inspectors at Union Stock Yards, Chicago, six State agents at Union Stock Yards, Chicago, two live stock inspectors at National Stock Yards, East St. Louis, and board of veterinary examiners; to the Insurance Superintendent for actuary, chief insurance examiner, three insurance examiners and attorney; to the State Laboratory of Natural History for biologist; to the State Entomologist for five assistant entomologists; to the State Board of Health for chief clerk, attorney and bacteriologist; to the State Food Commissioner for six food inspectors and two chemists; to the State Highway Commission for road engineer, bridge engineer, township engineer, testing engineer, assistant testing engineer, thirteen assistant engineers, six junior engineers, chief clerk and resident engineers; to the State Geological Commission for director; to the Rivers and Lakes Commission for secretary of the commission; to the Mine Rescue Station Commission for six instructors; to the Illinois Waterway Commission for accountants and other appointees; to the Industrial Board for industrial examiner and attorney and others; and to the State Water Survey for director, engineer, assistant engineer, chemist and four assistant engineers; it being contended by the appellees that such appropriations are for salaries of officers of the State government and unconstitutional and void because made by the Omnibus Bill.

The cross-errors also call in question the action of the court in holding constitutional the appropriation of $13,000 made by the Omnibus Bill to the Governor “for the care of the executive mansion and grounds, and for heating, lighting, expenses of public receptions, wages and sustenance of employees, automobile and stable expense and other incidental expenses of the executive mansion,” it being contended that such appropriation is an attempted increase in the salary of the Governor and is therefore unconstitutional; the appropriation of $2500 to the Secretary of State for “telephone toll for members of the General Assembly,” it being contended that the constitution fixes and limits all incidental expenses of members of the General Assembly .to $50 each; the appropriation of $2000 to the Secretary of State for “editing the Blue Book,” it being contended that such appropriation is an attempted increase in the salary of the Secretary of State; the appropriations to the Superintendent of Public Instruction of $1500, each, for “conducting three county examinations,” of $4500 per annum for “setting questions and correcting manuscripts,” of $250 per annum for “conducting State examinations, setting questions and correcting manuscripts,” and of $1400 for “conducting examinations for medical colleges,” it being contended that such appropriations are increases in the salary of the Superintendent of Public Instruction; the appropriations to the Insurance Superintendent of $15,000 for “expenses of prosecutions of violations of the insurance laws,” of $2000 per annum for “traveling expenses of attorneys, court costs in re prosecutions of violations of the insurance laws,” and of $4000 per annum for “legal services,” it being contended that these appropriations are for services and expenses which under the constitution belong to the office of Attorney General; the appropriation of $2500 per annum to the Rivers and Lakes Commission for “prosecutions,” it being contended that the duty of prosecuting violators of the law rests upon the Attorney General; the appropriation of $3000 per annum to the State Board of Pharmacy for “investigating and prosecuting illegal sale of narcotic drugs,” it being contended that such duty rests upon the Attorney General; and the appropriations of $28,500 for “the expenses of the Illinois Centennial Anniversary Commission,” of $10,000 for “the expenses of the commission appointed under provision of House Resolution No. 21 of the Forty-ninth General Assembly,” and of $3000 to the commission to codify building laws under the provision of Senate Joint Resolution No. 29 of the Forty-ninth General Assembly, it being contended that these appropriations are unconstitutional because all of said commissions were appointed by joint resolution instead of by an act passed in accordance with the provisions of the constitution; also because the Forty-ninth General Assembly has adjourned sine die and said commissions therefore have no legal existence; also because, by the terms of the resolutions under which said commissions were created, vouchers approved by the chairmen of the commissions are to be accepted by the Auditor and warrants issued thereon, and said appropriations are to be expended by officers not recognized by law.

The claim is advanced by the appellants that a taxpayer cannot maintain a bill in equity to restrain the State Treasurer and the Auditor from paying out moneys appropriated by the General Assembly on the ground that the acts of the General Assembly making such appropriations are unconstitutional. Decisions from other jurisdictions are relied upon to sustain this proposition, and some of them do announce that doctrine. We have consistently held the contrary view and do not regard the question as any longer an open one in this jurisdiction as the law <¡>n this question is well settled in this State, and as we have no intention or desire to depart from our former holdings it will serve no good purpose to enter into a discussion of the cases cited by the appellants from other jurisdictions.

We have repeatedly held that tax-payers may resort'to a court of equity to prevent the misapplication of public funds, and that this right is based upon the tax-payers’ equitable ownership of such funds and their liability to replenish the public treasury for the deficiency which would be caused by the misappropriation. (Colton v. Hanchett, 13 Ill. 615; Perry v. Kinnear, 42 id. 160; Chestnutwood v. Hood, 68 id. 132; Jackson v. Norris, 72 id. 364; McCord v. Pike, 121 id. 288; Littler v. Jayne, 124 id. 123; Stevens v. St. Mary’s Training School, 144 id. 336; City of Chicago v. Nichols, 177 id. 97; Adams v. Brenan, 177 id. 194; Burke v. Snively, 208 id. 328; Jones v. O’Connell, 266 id. 443.) It is the contention of appellants that in the cases in which this doctrine has been announced and in which the right of tax-payers to institute. such suits has been sustained only public funds in municipal treasuries were involved and not the public funds in the State treasury, and that this is the first time in this State that the right of a tax-payer to bring a suit to enjoin the payment of the public funds from the State treasury has been presented to this court. It may be conceded that some of the decisions from other jurisdictions relied upon by appellants make a distinction between the funds in a municipal treasury and the funds in a State treasury. Upon principle and reason we perceive no distinction between the right of a tax-payer to enjoin the misappropriation of the public funds from a municipal treasury and the right to enjoin an invalid appropriation of the public funds from the State treasury.

In discussing the rule laid down in this State as to the right of a tax-payer to bring a suit to enjoin the misapplication of public funds in a municipal treasury and in attempting to say that it has no application to such a case as this, appellants say in their brief: “We make no objection to this rule, but maintain that it has no application where the rights of the State are involved. The State is a sovereignty. It is inconceivable that the power and maintenance of the State organization can be attacked successfully by a mere private citizen. The courts are one branch of the State organization. The courts necessarily are bound to do nothing to embarrass the sovereignty of which they are a part. They will not, therefore, interfere in any manner with the acts of the legislative branch or of the executive branch in so far as those acts are a part of the sovereignty and reasonably necessary to the maintenance of the State organization.”

A municipality has no inherent power to raise public funds by means of taxation, but such power is derived only by grant from the State. In exercising this delegated authority a municipality is exercising a part of the sovereign power of the State. The sovereignty of the State is no less involved, except in degree, in the determination of a suit brought by a tax-payer to enjoin the misappropriation of the public funds of a municipality than in a suit such as this, brought by a tax-payer to enjoin the misappropriation of the public funds in the State treasury.

While it may be true, as appellants suggest, that a case involving the precise facts here involved has never been presented to this court, the reasoning in each of the cases before cited is applicable and the holding decisive. In some of them the facts are analogous to those in the case at bar and the same contentions were urged as are here urged on the part of the appellants. In Burke v. Snively, supra, a bill in chancery was filed against the Commissioners of the Illinois and Michigan Canal, the Auditor of Public Accounts and the State Treasurer to restrain the payment out of the public funds of the State of certain sums of money appropriated by the General Assembly for the maintenance and- protection of the Illinois and Michigan canal and for the necessary and extraordinary expenses thereof. That was a suit by a tax-payer, and it was there contended by the Attorney General that the circuit court of Sangamon county was without jurisdiction, as the action was against the State. This question was decided contrary to the contention of the Attorney General, and it was held that “in equity the money in the State treasury is the money of the people of the State, and suits by á tax-payer to restrain the misappropriation by public officers of such money to an unauthorized purpose are not suits against the State.” It was also there held that an unconstitutional statute is not law, and an appropriation of public funds in pursuance of an unconstitutional statute is a misuse of the funds, which may be restrained by injunction, and that the Auditor of Public Accounts may be restrained from issuing warrants for the payment of the public money for any other than ■ purposes for which said moneys may be lawfully used, and the treasurer of the State may be enjoined from paying public funds for purposes not authorized by law.

Jones v. O’Connell, supra, was a suit brought by a taxpayer to restrain the county treasurer of Cook county from appropriating to his own use two per cent of the inheritance taxes collected by him as such county treasurer and to require him to restore to the treasury of Cook county such amount as he had withdrawn over and above his annual salary and to pay the same over to the treasurer of the State. The complainant in that case was permitted to maintain his bill as a tax-payer because of his' equitable interest in the public funds in the State treasury. In holding that a tax-payer may, on behalf of himself and other tax-payers, maintain a bill to enjoin the county treasurer from misapplying public funds in his hands and to compel him to restore to the State treasury the amount already misapplied where the money so misapplied must be made up by taxation, we said: “If tax-payers have a right or interest which the bill in this case was intended to protect it is of a purely equitable nature, the legal right and title being in the State. If the defendant, O’Connell, has money in his hands which he has no right to retain but which he is bound to pay to the State Treasurer, the sum retained by him must be made up by taxation, and every tax-payer has an equitable right to see that the money so unlawfully retained shall be paid to the State Treasurer for the use of the State. This court has always recognized that rule and has uniformly held that the tax-payers are in equity the owners of the property of a municipality, and whenever public officials threaten to pay out public funds for a purpose unauthorized by law or misappropriate such funds, equity will assume jurisdiction to prevent the unauthorized act or to redress the wrong; and this is because the right and interest are equitable in their nature and are not recognized by courts of law.”

Appellants contend that the right of a tax-payer to maintain the suit was not raised in either Burke v. Snively, supra, or Jones v. O’Connell, supra, and what was said in those cases on this question was not necessary to a decision. We approve the doctrine announced in those cases, and under the rule as it has been uniformly recognized in this State appellees have an undoubted right to maintain this suit.

It is charged in the bill that certain items appropriated in the Omnibus Bill are for the payment of the salaries of officers of the State government and are therefore uncon- ■ stitutional and void. The section of the constitution which it is claimed prohibits the making of these appropriations in this manner is section 16 of article 4, which is, in part,. as follows: “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.” Appellants Contend that this section of the constitution does not prohibit including other items of appropriation in bills appropriating moneys for the pay of officers of the State government, and insist that the proper and reasonable construction to be placed upon this section is, that the phrase “any other subject” refers to “appropriations” as its antecedent, and that the section should be interpreted as though it read: “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 than appropriationsIn support of their contention appellants point out that in Ritchie v. People, 155 Ill. 98, Mathews v. People, 202 id. 389, and People v. Joyce, 246 id. 124, where this section of the constitution has been construed, the acts there respectively involved, besides attempting to appropriate money for the pay of State officers, included legislation upon other independent subjects. While it is true, as appellants contend, that in the Ritchie case the act under consideration also provided for factory inspection, that in the Mathezvs case the act there questioned also regulated free employment agencies, and in the Joyce case the act, in addition to creating a system of parole, also provided for pay for the parole agents, which in those cases made the acts involved obnoxious to this section of the constitution, it does not follow that that was the only evil aimed at and intended to be prohibited by said section 16. The language employed in this section is plain and unmistakable, and was clearly intended to prevent the making of appropriations for the pay of salaries of officers of the State government in any bill which should contain a provision on any other subject than that of appropriations for the pay of members and. officers of the General Assembly and for salaries of officers of the State government. It was no doubt the intention of the framers of the constitution, and of the people in adopting it, to make it impossible to influence legislation by the inclusion of the appropriation for the pay of members and officers of the General Assembly and for salaries of the officers of the State government, which are fixed in amount and must be ■paid, in bills which contain provisions upon any other subject whatever. While there may appear to be some force to the suggestion that an employee is as much a servant of the people as an officer and might not improperly be classed with an officer so far as the making of an appropriation for his pay is concerned, and also that by drawing a strict line between an officer and an employee and holding that the pay of no officer can be provided for in any other appropriation bill than one for the pay of members and officers of the General Assembly and officers of the State government a difficult task is set for the legislature to determine who are and who are not officers, we are not permitted to be influenced by such considerations or suggestions. Under this section of the constitution it is incumbent upon the General Assembly to make the appropriations for the pay of its members and officers and for the salaries of the officers of the State government by a separate bill or bills which shall contain no provision on any other subject than that of appropriations for such members and officers. In considering this section in Ritchie v. People, supra, we said: “The manifest intention of section 16 was to malee the subject of appropriations for the pay of the members and officers of the legislature, and for the salaries of the officers of the government, a separate and distinct subject for legislative action.” If, in fact, the Omnibus Bill contains appropriations for salaries of any of the officers of the State government such appropriations are invalid. This would not be true if the act were one making appropriations for members and officers of the General Assembly and for salaries of the State officers, as it is contemplated by the constitution such appropriations shall be made. In that event every other provision in the bill, aside from those making appropriations for such members and officers, would be invalid. (Ritchie v. People, supra.) The General Assembly passed a members’ and officers’ pay bill, (Laws of 1915, p. 70,) and if the pay for the salaries of all the officers of the State government •. is not included in that act it was no doubt the result of an error in judgment as to who were officers and who were employees under the definition contained in the constitution. The title of the Omnibus Bill does not indicate that it is a bill to appropriate salaries for State officers. Under the constitution a bill making appropriations for the pay of members and officers of the General Assembly and for salaries of officers of the State government must express that subject, and that subject alone, by its title. While the title of the Omnibus Bill, in its broadest sense, would no doubt include the pay of members and officers of the General Assembly and for salaries of State officers, it was not confined to those subjects but included every possible incidental and ordinary expense of the State government. The constitution prohibits the making of appropriations for the salaries of State officers in such a bill.

The appellants suggest that it must be shown that the threatened injury is substantial, and not merely of a notiiinal character, before appellees are entitled to relief in a court of equity, and urge that as every State officer receives a fixed compensation for his services, which cannot be changed by the General Assembly and which must be paid, appellees have sustained no substantive or positive injury because the General Assembly, in attempting to discriminate between an office and employment, has included in a general appropriation bill appropriations for the salaries of certain of the State officers. The constitutional inhibition against making appropriations for the salaries of the officers of the State in this manner is' positive and must be observed. Should the General Assembly disregard it, it becomes the duty of the Auditor to refuse to issue warrants for the pay of salaries so appropriated and of the State Treasurer to refuse to pay the same, and if such appropriations have been made in violation of this section of the constitution those officers could not be coerced to issue such warrants and pay the same out of the funds in the State treasury. By the bill it is alleged that the Auditor is about to draw certain warrants, and the Treasurer to pay the same, upon the various items set forth in the bill of complaint, and that unless restrained the items, or portions thereof, will be paid and the complainants will thereby suffer irreparable injury. Among the items set forth in the bill are many which are alleged to be appropriations made for salaries of various State officers in the Omnibus Bill. If the Auditor and State Treasurer are about to issue warrants and pay the same out of the State treasury pursuant to an invalid appropriation, the tax-payers of the State are entitled to relief by injunction although the invalid appropriations were intended to provide for the salaries of the various State officers. It becomes necessary, then, to determine who compose the officers of the State government. This question is not left open to conjecture, as section 24 of article 5 of our constitution contains the following definition: “An office is 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.” This is an explicit definition and must serve as the only guide of the legislature in making appropriations for the salaries of the officers of the State government. This definition contains two essential elements, both of which must be present in determining any given position to be an office: (i) The position must be a public one, created either by the constitution or by law; and (2) it must be a permanent position with continuing duties. To determine whether the first element is present we have but to look to our constitution and our statutes to see whether the particular position under consideration has been created by the constitution or by law. An office is created by law only as a result of an act passed for that purpose. The mere appropriation by the General Assembly of money for the payment of compensation to the incumbent of a specified position does not have the effect of creating an office or of giving such incumbent the character of an officer, (People v. McCullough, 254 Ill. 9,) as an office cannot be created by an appropriation bill. To ascertain whether the second element is present it is necessary to determine the character of the position. This is not determined by the method in which the occupant or holder of the position is selected,—whether by appointment or election. If the duties of the office are continuing and it is necessary to elect or appoint a successor to the several incumbents, then the second element is present whether the incumbent be selected by appointment or by election, and whether the incumbent be appointed during the pleasure of the appointing power or be elected for a fixed term. Applying this definition and rule, we find that the circuit court correctly found the appropriations enumerated in the decree, and above set forth, to be appropriations for the pay of officers of the State government and improperly included in the Omnibus Bill and therefore invalid, with the exception of the appropriation for one clerk in the inheritance tax office of the Attorney General in counties of the third class and the appropriation for extra game wardens. There is no provision either by the constitution or by statute creating the position of clerk in the inheritance tax office of the Attorney General in counties of the third class. This position, therefore, is not an office but the incumbent is an employee whose compensation may properly be prordded for in the Omnibus Bill. Appellees cite and rely upon section 12 of the Inheritance Tax law (Hurd’s Stat. 1913, p. 2101,) as the statute creating this position. This statute does not refer to a clerk in the inheritance tax office of the Attorney General but refers to an inheritance tax clerk in the office of the clerk of the county court.

By section 2 of the Game and Fish act (Hurd’s Stat. 1913, p. 1295,) it is provided that the State Game and Fish Conservation Commission shall have power to employ such other officers, agents and employees than those therein designated as it may deem necessary for the efficient conduct of its business. The appropriation for the extra game wardens, as it appears in the Omnibus Bill, is as follows: “For extra wardens during game seasons, $15,000.” This is plainly an appropriation for such other officers as the commissioners may deem it necessary to employ for temporary purposes, and their positions do not come within the definition of an office as it is contained in the constitution.

Further applying the constitutional definition and the rule we have deduced from it, we find that the court properly held all of the positions complained of by appellees in their assignment of cross-errors not to be offices except those held by three assistant Attorneys General in charge of the inheritance tax office in Cook county, the members of the Board of Veterinary Examiners and the director of the State Geological Commission.

Section 12 of the Inheritance Tax law provides that in counties of the third class the Attorney General shall designate an assistant (or assistants) Attorney General, whose special duty it shall be to. attend to all matters pertaining to the enforcement of that act in respect to the appraisement, assessment and collection of the inheritance tax in such counties. The office of assistant Attorney General is thus created by the statute, and the duties of that office are continuing, with a successor to be appointed. It complies with the constitutional definition of an office. It may be that at times it will be necessary to have more incumbents of that office than at others, but the office and its duties continue, and the incumbents, no matter how many the necessities of the business of the State may require, are officers, and provision for the payment of their compensation cannot be made in any other manner than that provided by the constitution.

By section 2 of the act regulating the practice of veterinary medicine and surgery (Hurd’s Stat. 1913, p. 1616,) it is provided that the Board of Live Stock Commissioners shall appoint three competent veterinary surgeons, who shall constitute a board of veterinary examiners and who shall continue to serve upon such board at the pleasure of the Board of Live Stock Commissioners. It further provides for the filling of any vacancy on the board of examiners by the Board of Live Stock Commissioners. This is a continuing office, clearly created by statute, and comes within the constitutional definition of an office. The appropriation for the compensation of the members of this board cannot, therefore, be made in the Omnibus Bill.

Section 2 of the act to establish and create at the State University a State geological survey, (Hurd’s Stat. 1913, p. 2474,) provides that the State Geological Commission shall appoint a director, who may, with the approval of the board, appoint such assistants and employees as may be necessary to carry out the provisions of the act. This creates the office of director of the State geological survey, which office will continue as long as this act remains in force. The appropriation for the pay of this officer by the Omnibus Bill is invalid.

Appellees complain that the court erred in not holding an appropriation for attorney in the department of the Insurance Superintendent to be invalid, for the reason that he is an officer and the appropriation is contained in the Omnibus Bill. We find no such appropriation in the Omnibus Bill.

Appellees contend that the court erred in not holding the appropriation to the State Board of Health for one attorney and the appropriation for one attorney for the Industrial Board invalid, for the reason that neither of these boards is vested with the power and authority to employ an attorney and thus incur that expense. The statute gives the State Board of Health no power or authority to employ an attorney, but, on the contrary, by section 7 of chapter 126a (Hurd’s Stat. 1913, p. 2288,) it is provided that in all prosecutions and proceedings instituted by the State Board of Health it shall be the duty of the State’s attorney in each county to prosecute. For the reasons hereinafter given on the question of the right of the Insurance Superintendent to employ counsel to represent him, the appropriation to the Industrial Board for an attorney is invalid. The validity of the appropriations for attorneys for other boards and commissions heretofore mentioned. has not been questioned on this ground, the only question raised in reference to them being whether the incumbents of those positions fell within the classification of officers.

Various appropriations contained in the Omnibus Bill are objected to upon the ground that they are unconstitutional, for the reason that they effect an increase of the salary of the various officers for whose departments the appropriations are made. On this ground objection is made to the appropriation to the Governor for the expense of maintaining the mansion, to the Lieutenant-Governor for traveling expenses, to the Secretary of State for editing the Blue Book and to the Superintendent of Public Instruction for conducting examinations, etc. The section of the constitution which it is claimed these appropriations violate is section 23 of article 5, which provides: “The officers named in this article shall receive for their services a salary to be established by law, which shall not be increased or diminished during their official terms.” In order to fully understand the exact purpose of the appropriations made by the items thus attacked and the means by which the moneys thus appropriated can be withdrawn from the State treasury it is necessary to' consider some of the general provisions of the Omnibus Bill, as these enter into and become a part of each item appropriated.

Section x of the act provides that “the following named sums, or so much thereof as may be necessary, respectively, for the purposes hereinafter named, be, and are hereby, appropriated to meet the ordinary and contingent expenses of the State government, until the expiration of the first fiscal quarter after the adjournment of the next General Assembly.” Then follow the various items appropriated by the Omnibus Bill, which are numerous. By section 2 the method is pointed out whereby the Auditor of Public Accounts shall draw warrants on the State Treasurer and the Treasurer shall pay the sums appropriated in the act. That part of section 2 which provides how the appropriations to the Governor, Lieutenant-Governor, Secretary of State and Superintendent of Public Instruction, which are objected to, shall be paid, is as follows: “And for all other appropriations specified herein warrants on the State Treasurer shall, when not otherwise provided by law, be drawn only on itemized bills, accompanied by receipted vouchers, showing the expenditure of moneys named in the itemized bills.”

It will thus be seen, as a general proposition, that no money was intended to be appropriated except so much as is necessary to meet the ordinary and contingent expenses of the State government, and that such appropriations as are now under discussion cannot be paid out except upon itemized bills, accompanied by receipted vouchers showing the expenditure of the moneys for which demand is made. These portions of sections i and 2 of the act must be read in connection with each of the items questioned, and when so read it must appear that it was the intention of the General Assembly to make these appropriations only for such expenses as the officers to whom the appropriations were made are authorized to incur, and to prevent the payment of the money except on a receipted voucher showing that the expenses had actually been incurred and paid. It is apparent that none of these appropriations were intended to be for the personal benefit of the officer to whom the appropriation was made. It is only necessary to determine, therefore, whether the expenses for which the appropriations were made are such as would properly constitute a charge against the State or should be borne personally by the officer to whom the appropriation was made.

The salary of the Governor is fixed by section 1 of chapter 53 of Hurd’s Statutes of 1913 as follows: “There shall be allowed and paid an annual salary, in lieu of all other salaries, fees, perquisites, benefit or compensation in any form whatsoever, to each of the officers herein named, the following sums respectively: To the Governor, the sum of $12,000, together with the use and occupancy of the executive mansion.” The executive mansion was erected pursuant to an act entitled “An act to appoint commissioners to build a house for the Governor of the State of Illinois,” approved February 12, 1853, in force February 12, 1853. (Laws of .1853, p. 220.) Ever since the erection of the mansion the compensation of the Governor has been . fixed at a certain sum, together with the use and occupancy of the executive mansion. The act of 1853 provided that the mansion was to be erected to be occupied by the Governor of the State of Illinois as a residence. The item objected to, and which it is, claimed is, in effect, an increase of the salary of the Governor, is as follows: “To the Governor, for the care of the executive mansion and grounds, and for heating, lighting, expenses of public receptions, wages and sustenance of employees, automobile and- stable expense and other incidental expenses of the executive mansion, the sum of $13,000 per annum.” ■

Appellees concede that it is within the power of the General Assembly to place at the disposal of the Governor such a sum as in its judgment is necessary for heating and lighting the executive mansion and for the care of, the grounds, but contend that the words, “use and' occupancy of the executive mansion,” as found in section 1 of chapter 53 of Hurd’s Statutes of 1913, do- not give the General Assembly the right to make an appropriation for the wages and sustenance of employees, for automobile and stable expense and for other incidental expenses of the executive mansion. As the appropriation for all the purposes enumerated in the item is made in a lump sum, that part which appellees concede is unobjectionable cannot be separated from the part, to which objection is made. The people of the State have provided their chief executive with a place of residence, designated as the executive mansion. The Governor is expected, if, indeed, he is- not required, to reside therein during his term of office. It must be apparent, as appellees concede, that the provision for the use and occupancy of the executive mansion necessarily includes the heating and lighting and the care of the grounds. It will not be presumed that the Governor would require any employees about the executive mansion or would incur any automobile and stable expense so far as the necessities of himself and his family are concerned. The people of the State have the right to expect and require that their chief executive shall maintain the position among the citizens of the State which the dignity of his office demands, and if, in order to maintain that position and preserve the dignity of the office, the General Assembly deems it necessary to engage certain employees at the executive mansion, it has as much right to provide for their employment as it has to provide for the pay of employees about any other public building in the State. If it is deemed necessary and in keeping with the dignity of the office of Governor to maintain a stable or garage and to give public receptions and the like on appropriate occasions, it is a proper expense to be borne by the people of the State. As to what is embraced in the term “other incidental expenses,” as we view it, there can be no serious question. The appropriation, as has been stated, is for the executive mansion and grounds, heating ‘and lighting, expenses of public receptions, wages and sustenance of employees, automobile and stable expenses, and “other incidental expenses” of the executive mansion, which necessarily means only expenses of the same general character as those al-. ready enumerated. These expenses can only be paid upon the presentation of the itemized and receipted vouchers provided for by section 2 of the Omnibus Bill. None of the expenses authorized are in any way personal to the Governor, and it cannot be seriously contended that any of such expenses should be borne by him personally. The appropriation does not, in terms, profess to' be one making an increase in the salary of the chief executive. Neither can it be urged that it is a shift, device or subterfuge used to accomplish that purpose. The circuit court properly held this item a valid appropriation.

The appropriation to the Lieutenant-Governor of $2000 per annum for traveling expenses is attacked on the ground that it is an increase in the salary of that officer made during his term of office and therefore unconstitutional. The statute provides that the salary of the Lieutenant-Governor shall be the sum of $2500 per annum. This is intended as compensation for his personal services. If in the performance of his duties it becomes necessary for him to incur traveling expenses these constitute a proper charge to be paid by the State. The Lieutenant-Governor is the only member of the executive department who is not required to reside at the seat of government, and as his chief duty as Lieutenant-Governor is to preside over the deliberations of the senate when the General Assembly is in session, it is apparent that he will necessarily incur some traveling expenses. The money expended for railroad fare, or for any other means of conveyance required, is the expense he is entitled to have refunded as traveling expenses, and to that extent the appropriation is valid.

By paragraph 7 of section 1 of the Omnibus Bill the appropriation is made for the maintenance of the office of the Secretary of State, and among other items appropriated is the following: “For editing the Blue Book, $2000.” By paragraph 27 the appropriation is made for the maintenance of the office of the Superintendent of Public Instruction, and the following among other items are appropriated: “For conducting three county examinations, $1500 each, setting questions and correcting manuscripts, $4500 per annum; for conducting State examination, setting questions and correcting manuscript, $250 per annum; for conducting examinations for medical colleges, $1400 per annum;” and it is contended that these are appropriations for additional salaries to the Secretary of State and, the Superintendent of Public Instruction. These items must be read in connection with the general provisions of sections 1 and 2 of the act. When so read it must be apparent that the appropriation was not for the personal benefit of the Secretary of State or the Superintendent of Public Instruction or as pay for services to be rendered by them individually. Had the items read, “for the expense of editing the Blue Book,” and “for the expense of conducting three county examinations,” etc., we take it that no objection would have been made, and yet that is the effect and meaning of these items when read in connection with the general provisions of the act, which apply to these as well as all the other items in the act. The contention that an appropriation of $2000 to the Secretary of State, or so much thereof as may be necessary, as one of the ordinary and contingent expenses of the State government for editing the Blue Book, is an appropriation of additional salary to the Secretary of State cannot be successfully maintained, and yet, under the express terms of the act, this is the appropriation made, and the Secretary of State can only avail himself of the money appropriated by complying with the provisions of section 2 in producing an itemized bill, accompanied by receipted vouchers showing the expenditure of the moneys named in the itemized bill. That it was not contemplated or intended that the Secretary of State should personally edit the Blue Book and receive this compensation is too clear to admit of argument; and should he do so, this appropriation would not be available, as he must by his receipted vouchers show that the money secured from this appropriation has been expended by him for this purpose. The same reasoning applies to the objection made to the appropriation for the Superintendent of Public Instruction. It is clear that this is an' appropriation to meet the expenses of conducting the various examinations enumerated, and the money can only be paid out when the Superintendent of Public Instruction has shown, by receipted vouchers, that the money has been expended for these purposes. These appropriations were properly held to be valid.

By the seventh paragraph of section 1 of the Omnibus Bill there is appropriated to the Secretary of State, among other appropriations, “for telephone toll for members of the General Assembly, $2500,” and it is insisted that this is in violation of section 21 of article 4 of the constitution, which provides: “The members of the General Assembly shall receive for their services the sum of $5 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 $50 per session to each member, which shall be in full for postage, stationery, newspapers and all other incidental expenses and perquisites.” It will be observed that this section of the constitution is full and explicit as to the compensation, mileage and incidental expenses of the members of the General Assembly. The salary which the members of the General Assembly should receive after the first session held under the constitution of i8yo is left entirely to the judgment and discretion of the General Assembly. If it should find, from the experience of its members, that the salary being paid at any given time is not sufficient to compensate them, it is within the power of the General Assembly to increase the salary of its members in the future. It was the evident intention of the people in adopting the constitution to require all legislation on the question of the compensation to be paid the members of the General Assembly to be clear-cut and unmistakable and to prevent any increase in their compensation under the guise of incidental expenses incurred in transacting the business of the State. If this were not so, the constitution would not have been so explicit in defining the positive limit of the amount allowed for all incidental expenses. The members of the General Assembly are plainly limited ,to the sum of $50 for all incidental expenses, and this item is clearly in violation of said section 21 and is therefore invalid.

Paragraph 26 of section 1 of the Omnibus Bill is as follows:' “To the State Treasurer, such sums as may be necessary to refund the taxes on real estate sold or paid on error and for over-payment of collectors’ accounts under- laws governing such cases, to be paid out of proper funds.” The objection to this item is that no definite sum is appropriated. Paragraph 3 of section 16 of article 5 of the constitution is, in part, as follows: “Bills making appropriations of money out of the treasury shall specify the objects and purposes for which the same are made, and appropriate to them respectively their several amounts in distinct items and sections.” It will thus be seen that to make a valid appropriation a definite sum of- money must be appropriated for the purpose specified. By section 18 of article 4 the constitution also provides that the aggregate amount of 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 of the General Assembly shall not exceed the amount of revenue authorized by law to be raised in such time. If .appropriations were to be made in this manner it would be impossible to determine the aggregate amount appropriated, and it would,never be known whether or not such amount exceeded the total amount of revenue permitted to be raised. This item is invalid.

In paragraph 46 of section 1 of the Omnibus Bill the following appropriations are made to the Insurance Superintendent: “For legal services, $4000 per annum; for expenses of prosecutions of violations of the insurance laws, $15,000 per annum; * * * for traveling expenses of attorneys, court costs in re prosecutions of violations, of the insurance laws, $2000 per annum.” In paragraph 63 of said section 1 an appropriation is made to the Rivers and Lakes Commission, as follows: “For prosecutions, $2500 per annum.” And in paragraph 74 of said section the following appropriation is made to the State Board of Pharmacy: “For investigating and prosecuting illegal sale of narcotic drugs, $3000 per annum,” It was the contention of the appellees in the court below, and is their contention here, that these appropriations are each of them invalid, for the reason that they make provision for the-compensation for the performance of duties on the part of the Insurance Superintendent, the Rivers and Lakes Commission and the State Board- of ° Pharmacy which devolve upon and should be performed by the Attorney General as the chief law officer of the State. Appellants, represented by the Attorney General, made the same contention as appellees in the court below in reference to the Insurance Superintendent and make the same contention here. They contended in the court below, however, and their contention here is, that the appropriations to the Rivers and Lakes Commission and the State Board of Pharmacy are valid. The contention of the Insurance Superintendent is that the appropriation to the Insurance Superintendent is valid. He was permitted to appear and present his views in the court below and has been permitted to file a separate brief in his own behalf in this court.

The Insurance Superintendent bases his contention that the appropriation is for a valid purpose and that he has been given the power to represent the State and enforce the laws in relation to insurance upon the statutes. In the view we have taken it will not be necessary to' enter into an extended discussion of the law of the State in reference to the subject of insurance. Prior to 1869 insurance corporations were treated in this State in the same class as corporations in general. In that year somewhat comprehensive legislation was enacted on the subject of insurance, by which, together with subsequent laws on that subject, the supervision of insurance' was vested in part in the Auditor of Public Accounts and in part in the Attorney General. (Laws of 1869, pp. 209-229.) In 1893 a separate insurance department was established and the office of Insurance Superintendent was created. (Laws of 1893, p. 107.) By this act the powers of the Auditor were expressly transferred to the Insurance Superintendent, but the powers and duties of the Attorney General, as they had been theretofore specified, were not changed. In 1899 the act of 1893 was amended by an act which purported to relieve the Attorney General of all the powers and duties imposed upon him by statute in relation to insurance and to confer the same upon the Insurance Superintendent. (Laws of 1899, p. 256.) There is no question but by the amended act of 1899 the General Assembly intended, and attempted, to confer upon the Insurance Superintendent power to do all things in reference to insurance which had theretofore been required to be done by the Attorney General. If the General Assembly had the power to strip the Attorney General of all these powers and duties and to authorize the Insurance Superintendent to represent the State in matters of litigation to the exclusion of .the Attorney General, then the contention of the Insurance Superintendent must be upheld and the appropriations for his department which are objected to held to be valid.

The office of Attorney General is created by section 1 of article 5 of the constitution of 1870, which is as follows: “The executive department shall consist of a Governor, Lieutenant-Governor, Secretary of State, Auditor of Public Accounts, Treasurer, Superintendent of Public Instruction and Attorney General, who shall, each, with the exception of the Treasurer, hold his office for the term of four years from the second Monday of January next after his election, and until his successor is elected and qualified. They shall, except the Lieutenant-Governor, reside at the seat of government during their term of office, and keep the public records, books and papers there, and shall perform such duties as may be prescribed by law.” It will be observed that the constitution confers no express powers upon the Attorney General and prescribes no express duties for him to perform. It simply provides that he shall perform such duties as may be prescribed by law. The office of Attorney General was one known to the common law, and under the common law the Attorney General had well known and well defined powers and it was incumbent upon him to perform well' known and clearly prescribed duties.. It is not necessary, and indeed it would be difficult, to enumerate all the powers vested in the Attorney General at common law and all the duties which were imposed upon him to perform. It is sufficient for the purposes of the discussion of the point here involved to state that at common law the Attorney General was the law officer of the crown and its chief representative in the courts. (Rex v. Austen, 9 Price, 12; Attorney General v. Brown,1 Swanst. 294; Rex v. Wilkes, 4 Burr. 2570; Wilkes v. Rex, 4 Brown’s P. C. 360; 1 Tomlin’s Law Dict. 129; 25 Law Quarterly Rev. 400.) We have had our attention called to but one case which disagrees with this proposition, and that is the case of Wilkes v. The King, as reported in Wilmot’s Notes of Opinions, 322. This is the same case as Wilkes v. Rex, supra, (4 Brown’s P. C.) and purports to be compiled from the notes of Lord Wilmot, who delivered the reasons for the judgment entered by the House of Lords. By this report of the case the court took the view that the Attorney General was not the chief representative of the crown in the courts but that the king might designate anyone he chose to represent the crown. This report of the case is in conflict with that in 4 Brown’s P. C. supra. The irreconcilable variance between these two reports is probably accounted for by the manner in which Wilmot’s Notes of Opinions was compiled and printed. Lord Wilmot died in 1792. The Notes of Opinions was published .in 1802 from manuscripts found among his effects. The work contains a preface, (or “Advertisement,” as it is named,) which states the circumstances under which the notes were published, and referring to these manuscripts or notes says: . “They were certainly not intended by the learned judge for publication, and some of them are not perfect. There is no doubt but they would have been all equally valuable if they had all received his last correction, and still more if his modesty had permitted him to revise them with a view to publication. As it is, the profession and the public will make allowance for the disadvantages under which they are presented to them.” As this report of the Wilkes case is not only out of harmony with the other report of the same case but also with other reputable authority on this question, and in a sense is discredited by the publisher in the preface to the work containing it, we do not regard it as authority, but recognize as correct the proposition supported by the authorities just cited. Under our form of government all of the prerogatives which pertain to the crown in England under the common law are here vested in the people, and if the Attorney General is vested by the constitution with all the common law powers of that officer and it devolves upon him to perform all the common law duties which were imposed upon that officer, then he becomes the law officer of the people, as represented in the State government, and its only legal representative in the courts, unless by the constitution itself or by some constitutional statute he has been divested of some of these powers and duties.

The constitution provides, as has been noted, that the Attorney General shall perform such duties as may be prescribed by law. The common law is as much a part of the law of this State, where it has not been expressly abrogated by statute, as the statutes and is included within the meaning of this phrase. The question presented for our determination is, whether by creating this office under its well known common law designation the constitution engrafted upon it all the powers and duties of- the Attorney General as known at common law, and gave the General Assembly authority to confer and impose upon the Attorney General only such additional" powers and duties as it should see fit.

In Dahnke v. People, 168 Ill. 102, we had occasion to inquire into the constitutional powers and duties of a sheriff. The office of sheriff is created by section 8 of article g of the constitution of 1870 without in any way defining the powers and duties of the office. A sheriff was an officer known to the common law, and in passing upon the question whether, by creating this office, the constitution en-grafted upon it all the common law powers and duties of a sheriff and thus permitted the legislature to confer upon him only new and additional powers, we said: “The constitution of this State provides for the election of sheriffs. (Art. 10, sec. 8.) Sheriffs, as elected under the constitution, have the same powers