J. B. FERGUS et al. Appellees, vs. ANDREW RUSSEL et al. Appellants.

Opinion filed November 6, 1915-Rehearing denied Dec. 18, 1915.

I. INJUNCTION-tax-payers may maintain bill to prevent misapplication of public funds. Tax-payers have a right to maintain a bill in equity to prevent the misapplication of public funds, such right being based upon their equitable ownership of such funds and their liability to replenish the public treasury for the deficiency which would be caused by the misapplication.

2. SAME-tax-payers may maintain bill to enjoin payment of funds from State treasury. The right of tax-payers to maintain a bill to prevent the misapplication of public funds is not limited to the public funds of a municipal corporation, but they have a right to maintain a bill to restrain the State Treasurer and the Auditor from paying out moneys appropriated by the General Assembly upon the ground that the acts of the General Assembly were unconstitutional and void.

3. SAME-appropriation of public funds by an unconstitutional statute is a misuse of such funds. An appropriation of public funds in pursuance of an unconstitutional statute is a misuse of the funds, which may be restrained by injunction at the suit of a tax-payer. (Burke v. Snively, 208 Ill. 328, and Jones v. O'Connell, 266 id. 443, approved.)

4. CONSTITUTIONAL LAW-Section 16 of article 4 of the constitution construed. The provision of section 16 of article 4 of the constitution that "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," does not mean on any other subject than appropriations, but on any other subject than that of appropriations for the pay of the members and officers of the General Assembly and for salaries of officers of the State government.

5. SAME-appropriation bill for pay of salaries of officers of the State government must not include employees. Appropriations for the pay of the members and officers of the General Assembly and for the salaries of the State officers must, under section 16 of article 4 of the constitution, be contained in a separate bill, which shall not include appropriations for the pay of employees.

6. SAME-appropriations for salaries of State officers are invalid if contained in Omnibus Bill. Appropriations for the salaries of officers of the State government are invalid if they are contained in the general Appropriation bill, commonly known as the

Omnibus Bill, and if the separate appropriation bill for the pay of officers and members of the General Assembly and for the salaries of State officers contains appropriations for other purposes the appropriations for such other purposes are invalid.

7. SAME-General Assembly must follow constitutional definition of an office. In making appropriations for the salaries of State officers the General Assembly must be guided by the definition of an office found in section 24 of article 5 of the constitution in order to determine who are officers and who are mere employees.

8. SAME-constitutional definition of an office contains two essential elements. The definition of an office found in section 24 of article 5 of the constitution contains two essential elements: First, that the position must be a public one, created either by the constitution or by law; and second, that the position must be a permanent one, with continuing duties.

9. SAME-what is meant by a position created by law. A position created by law, as meant by section 24 of article 5 of the constitution, is one created by an act of the General Assembly passed for that purpose, and the mere appropriation 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.

10. SAME-how question whether position is permanent is to be determined. If the duties of a position are continuing and it is necessary to elect or appoint a successor to the several incumbents, then the position is a permanent one within the requirement of the constitutional definition of an office, whether the incumbent of the position is elected or appointed and whether elected for a fixed term or appointed during the pleasure of the appointing power, and such a position is an office, provided it has been created by the constitution or by law.

11. SAME an appropriation to Governor for executive mansion expenses is not invalid. The appropriation of 1915 of $13,000 per annum 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, is not for the personal expenses of the Governor or his family, and is not invalid as an attempt to increase the salary of the Governor, which is fixed by law at $12,000, "together with the use and occupancy of the executive mansion."

12. SAME-appropriation for necessary traveling expenses of the Lieutenant-Governor not invalid. The appropriation of 1915 to the Lieutenant-Governor for traveling expenses is lawful to the extent he is necessarily required to expend money for railroad fare

or other means of conveyance in performing his duties as presiding officer of the senate.

13. SAME-appropriation to the Secretary of State for editing Blue Book is valid. The appropriation of 1915 to the Secretary of State "for editing the Blue Book" is not an appropriation for the personal use of the Secretary of State nor for an additional compensation to him for services but is for money paid out by him in such matter and is a valid appropriation; and in like situation is the appropriation of 1915 to the Superintendent of Public Instruction for conducting certain examinations, setting questions and correcting manuscript.

14. SAME-appropriation for telephone toll for members of the General Assembly is invalid. The appropriation of 1915 of $2500 to the Secretary of State for telephone toll for members of the General Assembly is invalid, as in conflict with that part of section 21 of article 4 of the constitution which expressly limits all incidental expenses of a member of the General Assembly to $50 per session.

15. SAME-appropriation, to be valid, must be for definite sum. Under the constitution an appropriation, to be valid, must be for a definite sum, and an appropriation to the State Treasurer not for any specific amount but for "such sums as may be necessary to refund taxes on real estate sold or paid on error, and for overpayment of collectors' accounts under laws governing such cases," is invalid.

16. SAME-Attorney General has all the common law powers and duties of that officer. The constitution, by creating the office of Attorney General under its well known common law designation and providing that he shall perform such duties as may be prescribed by law, engrafted upon the office all the powers and duties of an Attorney General as known at common law, and gave the General Assembly power to confer additional powers and impose additional duties upon him but not to strip him of any of his common law powers and duties as the legal representative of the State.

17. SAME-extent to which act of 1899 transferred powers and duties of Attorney General to the Insurance Superintendent. The act of 1899, (Laws of 1899, p. 256,) which purports to transfer to to the Insurance Superintendent all the powers and duties of the Attorney General conferred and imposed upon him by the statutes relating to insurance, is valid only as to such additional powers and duties of the Attorney General as were not inherent in his office under the constitution.

18. SAME—Insurance Superintendent must look to the Attorney General for legal services. While the Insurance Superintendent, under the act of 1899, may institute prosecutions and maintain

any suits with reference to insurance which had formerly been prosecuted in the name of the Attorney General, yet he must look to and depend upon the Attorney General for all legal services in reference thereto.

19. SAME-the Attorney General is the chief law officer of the State. The Attorney General is the chief law officer of the State and the only officer empowered to represent the people in any suit or proceeding in which the State is the real party in interest, except where the constitution or a constitutional statute may provide otherwise, and with this exception only he is the sole official adviser of the executive officers and of all boards, commissions and departments of the State government, and it is his duty to conduct the law business of the State, both in and out of the courts.

20. SAME-appropriation to Insurance Superintendent for legal services is invalid. The appropriation of 1915 to the Insurance Superintendent for legal services, and for traveling expenses of attorneys and court costs in prosecutions for violations of the insurance laws, is unconstitutional and void.

21. SAME-appropriation for expenses of prosecutions of violations of law is valid-what not included. The appropriation of 1915 to the Insurance Superintendent for expenses of prosecutions of violations of the insurance laws is valid to the extent of expenses legitimately incurred in conducting investigations in connection with such prosecutions; but this does not include fees for attorneys employed to perform legal services.

22. SAME the appropriations to certain State boards for prosecuting violations of law do not include attorneys' fees. The appropriations of 1915 to the Rivers and Lakes Commission "for prosecutions," and to the State Board of Pharmacy for "investigating and prosecuting illegal sale of narcotic drugs," are valid, and cover legitimate expenses concerning such matters but cannot include fees for attorneys.

23. SAME what is not the withdrawal of funds from the State treasury by resolution. An appropriation contained in the Omnibus Bill, if the bill is regularly passed, does not violate the provision of the constitution against withdrawing funds from the State treasury by resolution, even though the committee for whose expenses the appropriation was made was created by resolution.

24. SAME-appropriation for expenses of committee appointed by resolution to sit after sine die adjournment is invalid. A committee appointed by joint resolution of the General Assembly for performing duties after the sine die adjournment of the legislature has no power or authority to act except as the members may volunteer to act as private individuals, and an appropriation to pay the expenses of such a committee is invalid.

25. SAME-powers delegated by resolution cease with sine die adjournment of legislature. All the powers of the legislature, as such, cease upon its final adjournment, and all the powers which have been delegated by it to a committee by mere resolution also cease; but the legislature has power, by an act regularly passed, to create a commission for any proper purpose, to act during the session of the legislature or after its adjournment.

26. SAME-Governor cannot approve part of an item and veto remainder. The power given to the Governor by the constitution to disapprove of and veto any distinct item or section in an appropriation bill does not give him the power to disapprove of a part of a distinct item and approve the remainder, and if he vetoes part of an item by striking out the words "per annum" or by approving a part of the amount of one item and disapproving the remainder, his action is void and the whole item remains in force as passed by the legislature.

FARMER, C. J., and CRAIG and DUNCAN, JJ., dissenting.

APPEAL from the Circuit Court of Sangamon county; the Hon. JAMES A. CREIGHTON, Judge, presiding.

P. J. LUCEY, Attorney General, LESTER H. STRAWN, and A. R. Roy, (LOGAN HAY, of counsel,) for appellants.

A. A. MCKINLEY, CHARLES H. SHAMEL, and CYRIL W. AKMSTRONG, for the Insurance Superintendent.

FAYETTE S. MUNRO, and SHELBY M. SINGLETON, (JOHN A. WATSON, and STEVENS & HERNDON, of counsel,) for appellees.

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,