Executive Report
School aid payments
THE STATE Board of Education agreed to
base its monthly payments of state aid to
school districts on the reduced appropriation acted on by the governor. The governor
warned the board that any other action
would not be in accord with the law. Initially, the Office of Education had planned to
base payments (which are one-twelfth of the
total appropriated) on the appropriation
passed by the General Assembly in spite of
the reduction veto.
Attorney General's Opinions
Item veto not for language
S-936 to Comptroller George W. Lindberg.
7/24/75
THE ITEM veto power relates to appropriations and is set forth as follows: "The
Governor may . . . veto any item of appropriations in a bill presented to him" (Art. IV,
sec. 9(d) of the Constitution). The governor,
in an exercise of the item veto, let stand an
amount in a 1974 appropriation bill to the
Department of Public Health (House Bill
2355—Public Act 1057) but struck qualifying language which he considered to be an
unconstitutional restriction. The words he
vetoed were: ". . . in the same amount that
each [local government] received during
fiscal year 1974, plus an increase of one-third for each local government that is
providing, or has acceptable plans to
provide, the basic Public Health programs,
according to the recommendations
developed by the State Department of
Public Health as of July 1, 1974." The opinion was that the governor's veto action was
unconstitutional and that the language he
sought to delete was itself not unconstitutional.
The speaker of the House had ruled that
the governor had improperly exercised his
veto; the attorney general agreed. He said,
"The item veto power may not be used to
strike language suspected as being in violation of the constitutional provision limiting
appropriation bills to the subject of appropriations." He cited Fergus v. Russel,
270 Ill. 304 (1915), in which the court overruled the attempt by the governor to strike
the words "per annum" appearing after a
dollar amount. It would be a double exercise
in futility "to construe the Constitution as authorizing the Governor to exercise his
item veto powers to strike language he
deems unconstitutional from an appropriation hill." since it would necessarily follow
that the General Assembly would be
authorized "to restore unconstitutional
language by a vote to override .... Of
course, if the General Assembly failed to
override, the Governor would have made the
final determination as to the constitutionality of the language involved, thus successfully
invading the province of the courts to whom such determinations are reserved by our
Constitution."
As to the constitutional language which
says. "Appropriation bills shall be limited to
the subject of appropriations" (Art. IV,
sec.8 (d), the attorney general held that the
stricken language in H.B. 2355 "provides no
new authority to the Department; it is not
substantive legislation," but rather is "a
relevant condition or limitation on the appropriation and is incidental to and in explanation of the appropriation," and
therefore is not unconstitutional. He said,
"An 'item of appropriations' connotes not
only a specified sum of money but also a
specified purpose for which the money may
be expended. It is important to understand
that it is the legislature that has plenary
powers over the expenditure of State
funds .... The Governor is merely empowered to check the spending of the
legislature."
Funding of Crosstown by Chicago
S-940 to Norbert T. Tiemann, federal
highway administrator, Washington, D.C., 8/1/75
THE CITY of Chicago has authority to agree to fund the non-federal share of the
proposed Chicago Crosstown Expressway
without regard to any participation in the
project by the Illinois Department of
Transportation. Chicago's city council may
exercise this authority by adopting a home
rule ordinance. Article VII of the 1970
Constitution grants the city home rule
powers (section 6) and provides for intergovernmental cooperation (section 10).
"The home rule provision of the new
Constitution completely reversed, for home
rule units such as Chicago, the fundamental
law theretofore governing their legal powers and authority." the attorney general said.
"In addition, the new Constitution expressly
314 / Illinois Issues / October 1975
granted broad powers for intergovernmental cooperation to all units of local
government (whether home rule units or
not) including authority for cities to contract
with the United States government."
Whatever effect the attorney general's
opinion has on the Crosstown, it was apparently unprecedented because it was rendered to a federal official, instead of an
Illinois official. The request for the opinion
came from Tiemann, who cited a provision
in the federal law which, he said, "was particularly adopted to permit Chicago, in contrast to the State of Illinois, to finance the
Chicago Crosstown Expressway as an Interstate highway." Tiemann followed by stating. "As the question involved is largely one of State law, we believe it would he particularly appropriate to have your views as
the principal law officer of the State of
Illinois on the matter."
The governor has regularly opposed the
Crosstown project, but the attorney
general—who is also elected by the
people—is not responsible to the governor.
His opinions, however, are only advisory,
and the governor is not bound by them nor
stopped from initiating legal action to block
the Crosstown project should Chicago
proceed on its own.
Change orders in contracts
S-939 to Secretary of State Michael J.
Howlett, 7/30/75
The Illinois Purchasing Act permits
change orders in contracts for repairs, etc.,
only when germane to the original contract
and—if amounts exceed statutory percentages—subject to the written approval of the Capital Development Board. The instance in question involved a change in plans for use of the mezzanine floor of the Capitol, from offices and meeting rooms to an area for
press and TV. The board initially approved
the changes subject to a later determination
that they were germane and did determine
later that they were not germane. The attorney general's opinion is that the authority
to determine what is germane rests only with
the "Owner" (in this case. secretary of
state), and the responsibility of the Capital
Development Board on change orders is
limited to its expertise in construction.
Further, in giving or withholding approval,
the board must give "detailed written
reasons," according to the law.
Audit of cemetery care funds
S-935 to Comptroller George W. Lindberg,
7/22/75
Under the Cemetery Care Act, the comptroller (who administers this act) has the
authority to audit the use of income from
care funds and to require reporting of ultimate use of the income from a cemetery
care fund. Licensees are required to report
the expenditure of the income annually, but
the comptroller may investigate licensees at
any time.
Political contributions by city personnel
S-937 to Philip G. Reinhard, Winnebago
County state's attorney. 7/24/75
In a city which has adopted civil service
under Division 1 of the municipal code, it is
a violation for any person to solicit funds for
political purposes from a classified civil service employee of that city. It is also a violation for an officer or employee of a classified
civil service to solicit, receive and pay
moneys for political purposes. However, it is
not a violation for a person to solicit funds
for political purposes from city officers or
employees who are not under the city's
classified civil service.
Collective bargaining permitted
NP-934 to Basil G. Greanias, Macon County state's attorney, 7/22/75
A county board of health has authority to
enter into a collective bargaining agreement
with a union representing its employees.
Prior delegation of such authority from the
county board is not necessary as long as the
subject matter of the collective bargaining
agreement falls within the purview of the
statutory powers of the county board of
health.
County health services
NP-932 to James R. Burgess, Jr., Champaign County slate's attorney, 7/21/75
Champaign County is not a home rule
county. It has not established a full-time
health department as permitted by statute.
The county is not authorized otherwise to
provide a public health nurse or public
health services unrelated to a tuberculosis
sanitarium, county hospital, or county nursing home.
Gas tax on 'reefer' units
S-938 to Rep. Paul J. Randolph, minority
cospokesman. House Revenue Committee,
7/29/75
In May 1974 the Department of Revenue
began to deny tax refunds for motor fuel
used in vehicles but not used to propel them
on the highways, specifically, refunds for
"reefer" (refrigerator) units. This reversed
the practice followed since the motor fuel
tax law was amended in 1941 permitting
refunds for nonoperating uses. The attorney
general held that the department should
again allow refunds, asserting that "history
and time have elevated the long-standing
practice to the only correct interpretation."
Sheriff must pay message tax
NP-933 to William K. O'Connor. Henry County slate's attorney, 7/21/75
The only exemption made in the Illinois 2
per cent message tax is for messages which
"may not, under the Constitution and
statutes of the United States, be made the
subject of taxation by this State." No exemption is provided for the state or its local
governments, and consequently the sheriff of
Henry County should pay the tax.
October 1975 / Illinois Issues / 315