delivered the opinion of the court:
This is an appeal from the circuit court of Sangamon County involving the State Toll Highway Commission Act of this State. Through the State’s Attorney of said county quo warranto and injunction actions were simultaneously instituted against the Illinois' State Toll Highway Commission and its members, in substance challenging the validity of the statute which became effective upon the Governor’s approval July 13, 1953. The issues being the same the trial court entered an order consolidating the causes. Respondents filed motions to strike the two actions and the trial court granted said motions. Upon the plaintiff electing to stand on the initial pleadings the trial court held the act constitutional and entered a decree and judgment of dismissal in the two actions.
1. Plaintiff contends the act violates section 5 of article V of our State constitution in that section 3 of the act makes the Governor an ex-officio member of the commission and section 11 of the act requires approval by the Governor of plans and location of highways before bonds are issued.
2. Plaintiff contends the act violates section 26 of article IV of the State constitution in that section 27 of the act gives consent of the State to suits against the commission and section 14 of the act authorizes bondholders to sue the commission.
3. Plaintiff contends the act violates section 18 of article IV of the State constitution in that bonds may be issued by the commission without a referendum, subject to approval of preliminary plans and location of roads by the Governor under section 11.
4. Plaintiff contends the act violates section 17 of article IV of the State constitution in that section 20 of the act provides no appropriation shall be necessary to "withdraw funds from the treasury and such funds shall be considered always appropriated for the purpose of disbursement.
5. Plaintiff contends the act violates section 20 of article IV of the State constitution in that section 9(d) of the act gives the commission power to construct grade separations for railroads at its own cost. Plaintiff further objects to appropriations made by the Sixty-eighth General Assembly for payment of salaries and preliminary expenses of the commission.
6. Plaintiff contends the act violates section 22 of article IV of the State constitution in that section 17 of the act provides that toll roads do not become part of the State highway system until all bonds are paid and only the commission has authority to establish tolls and operate toll roads.
7. Plaintiff contends the act violates section 12 of article IX of the State constitution concerning debt limitations.
8. Plaintiff contends the act violates due process of law and section 19 of article II of the State constitution. Plaintiff further contends the act violates article III of the State constitution in that section 28 of the act provides all determinations made by the commission with the approval of the Governer shall be conclusive and not subject to review by any court or administrative agency of the State, thereby granting to the commission judicial power as well as legislative authority.
9. Plaintiff contends the act violates section 26 of article IV of the State constitution in that section 7 of the act gives the commission power of eminent domain over public lands, highways, parkways, parks, playgrounds, all of which are held by the State or agency of the State.
10. Plaintiff contends the act violates section 1 of article V of the State constitution in that subsections 6(b), (d) and (e) of the act give the commission power to appoint assistant Attorneys General and retain special counsel to perform duties which can only legally be performed by the Attorney General or assistants appointed by him.
The act in question contains twenty-nine sections and is cited as paragraph 3i4aa6 to 3i4aS4, inclusive, chapter 121, Illinois Revised Statutes, 1953. The foregoing constitutional objections shall herein be dealt with in order.
The first objection deals with the fact that section 3 of the act makes the Governor an ex-officio member of the commission and that section 11 requires his approval of plans and location of highways before the issuance of bonds. We see no merit in the contention that there is a violation of section 5 of article V of the State constitution, which provides that neither the Governor nor any of the constitutional executive officers shall be eligible to any other office during the period for which he shall have been elected. On more than one occasion the legislature has seen fit to impose additional duties upon constitutional officials other than those expressly mentioned in the State constitution. We see in such legislation the creation of no other office but merely the imposition of additional duties. We have so declared in People ex rel. Graham v. Inglis,
Section 14 and section 27(a) authorize suits against the commission by bondholders while section 27(b) authorizes any person to bring suit against the commission for the recovery of damages “for injury to his person or property caused by any act of the commission or by any act of any of its officers, agents or employees done under its direction.” These sections are said to violate article IV, section 26, of the Illinois constitution, which provides that the State of Illinois shall never be made a defendant in any court of law or equity.
It is recognized by our decisions that this constitutional provision does not forbid actions against State officials in cases where the State would not be directly and adversely affected by the relief sought, and that such officials may under those circumstances be compelled to perform a duty required by the constitution or by statute, or restrained from acting beyond their authority or from acting under color of an invalid statute. (See People ex rel. First National Bank v. Kingery,
The Toll Highway Commission is.described in the act as “ah instrumentality and an administrative agency” of the State, and it is undeniable that in many respects it is intimately associated with the regular organs of government. Its functions are ones traditionally performed by the State. Two of its members are officers of the State government, while the others are appointed by the Governor, and may be removed by him. The commission’s choice of sites for toll highways, as well as its preliminary estimates of costs, must be approved by the Governor. The Attorney General serves as its legal representative, and controls the selection and performance of the commission’s legal staff. Furthermore, while the commission may acquire property in its own name, the toll highways which it constructs are to become a part of the regular State highway system whenever the indebtedness incident to their construction has been liquidated. We note also that the legislature has made initial appropriations of $64,000 for the salaries of the commissioners as well as $436,000 for the performance of the commission’s duties. See Laws of 1953, P- 59i-
On the other hand, the financial structure of the commission is otherwise largely independent of the regular State government. The funds which it obtains from the sale of bonds and from tolls are segregated and may. be used only for toll highway purposes. Conversely, the State assumes no liability upon the bonds issued by the commission or upon any other contractual obligations which it incurs. Whatever effect a recovery of damages against the commission would have upon general, tax-derived revenues of the State is limited to the remote right which is given the State to receive any surplus remaining when the commission is ultimately dissolved.
Organizations having as close a relation to the State as this have been held by us to be subject to suit. The University of Illinois was regarded as suable despite the fact that its property was regarded as that of the State. (See Board of Trustees v. Bruner,
The suability of commissions such as this has not received a uniform answer in other jurisdictions, except for a general agreement that where the liability of the commission would be satisfied from State funds, the commission will be regarded as the alter ego of the State. See State Highway Com. v. Utah Construction Co.
The West Virginia turnpike commission was held subject to suit in Guaranty Trust Co. v. West Virginia Turnpike Com. 109 Fed. Supp. 286. The act there involved closely resembles ours, but differs in that the powers of the commission were less subject to control by departments of the State government. As is the case under the Illinois act, the bonds issued by the commission were declared not to be obligations of the State. The Pennsylvania commission has also been held subject to suit. (See Hunkin-
Conkey Construction Co. v. Pennsylvania Turnpike Com. 34 Fed. Supp. 26; Darby v. L. G. De Felice & Son, 94 Fed. Supp. 535; Pennsylvania Turnpike Com. v. Welsh, 188 Fed. 2d 447.) The commission there was subject to considerably more supervision by regular departments of the government than is the Illinois commission. As with the West Virginia act, however, the State assumed no obligations of the commission as its own. The principal decision holding to the contrary is Fowler v. California Toll-Bridge Authority, 128 Fed. 2d 549. The facts there, however, are significantly different. Virtually the entire direction of the acquisition of bridges, their construction and operation, as well as the control over withdrawals from the authority’s funds, was vested in the department of public works, and the entire membership of the authority was composed of State officers serving without salary. See also Broadwater-Missouri Water Users’ Assoc. v. Montana Power Co. 139 Fed. 2d 998.
The multiplicity of factors which the courts have considered in reaching a decision of this question makes it impracticable to extract a simple rule which will fit every situation. The factor entitled to most weight, in our opinion, is that under no circumstances can the general funds of the State be reached in order to satisfy an obligation of the commission. That factor, together with the largely independent control of the commission over the construction and maintenance of the proposed toll roads, permits it to be regarded as an independent entity so far as subjection to suit is concerned. The extent to which the commission would or would not be immune to actual liability in any particular action is of course not now before us. Our decision is simply that the constitution does not forbid it to be made a party defendant.
The third objection urges that section 18 of article IV of the State constitution requiring a referendum on State indebtedness is violated by section 14 of the act, which authorizes the issuance of revenue bonds payable solely from income derived from operation of toll highways. It is clear from a reading of the act that the bonds are not an obligation of the State by reason of the express language to such effect. All indebtedness incurred by the commission and all legal obligations assumed by it are payable only out of such revenues as are described in section 20 of the act. This modern method of financing is founded basically upon the proposition that the State assumes no obligation and the holder of the bond is duly notified of this fact by the express language of the statute and the form of the bond issued. It is this well-known method of modern financing that has proved itself to be of much help and beneficence in public works. As stated in State ex rel. Allen v. Ferguson,
The fourth objection complains that section 20 of the act, providing for no appropriation prior to withdrawal of funds, violates section 17 of article IV of the State constitution, which in substance requires appropriations before withdrawal from the State Treasury. It is to be noted that the section complained of provides that moneys withdrawn from the State Treasury special fund shall be considered always appropriated for the purposes of disbursements and are to be paid out and disbursed only as provided in the act, which prohibits appropriations or diversions to any other use or purpose than specified. This, in effect, is an appropriation by the General Assembly. The income receipts from the operation of the contemplated toll highways are not a tax but a toll. It was held in Green v. Black,
The fifth contention suggested by plaintiff addresses itself to section 9(d) of the act. This subparagraph gives the commission power to construct grade separations for railroads at its own cost. Section 20 of article IV of the State constitution, among other things, prevents the State from assuming debts or liabilities of any corporation, association or individual. There can be no doubt of the service to the general public in the creation of grade separations. It is a well known aid to the public safety and we see nothing within the complained-of paragraph that violates the cited section of the constitution. The foreseen constitutional evils are prevented, as it is manifest that the action when taken would clearly come within the police powers of the State. However, it may well be, under the act, that the commission might make agreements with railroads, cities or other corporations for the division of costs in the construction of grade separations. The commission is entitled to avail itself of the benefits of section 58 of the Public Utilities Act. Ill. Rev. Stat. 1953, chap. 111 2/3, par. 62.
Under the same objection it is complained that moneys have been appropriated by the Sixty-eighth General As-
sembly for the payment of salaries. We have upheld a similar legislative appropriation to the Chicago Transit Authority in People v. Chicago Transit Authority,
Section 22 of article IV of the State constitution is the subject of plaintiff’s sixth objection. Briefly stated it prohibits the General Assembly from passing a special law. Plaintiff contends that section 17 of the act providing that the toll highways shall become a part of the State highway system when all bond and interest obligations have been met contravenes the State constitutional injunction. We fail to see merit in such a contention. The specifications in plaintiff’s brief attempt to reach the result .that the act is special legislation. This is a pure attempt to overlook the general purpose and scheme of the act and is wholly in contempt of its context. The fact that the legislature did not see fit to make specific directions in respect to the laying out and vacating of roads and various other details illustrates its understanding that such problems are far better delegated to other persons or bodies and foresees the exercise of sound discretion and judgment by the governmental authority when the problems are met. It is such legislation that makes for efficient government. Section 6(f) of the act gives to the commission power to construct, relocate, operate, regulate and maintain a system of toll highways, and section 7(a) empowers the commission to cause to be prepared detailed plans, specifications and estimates for such highways. We see nothing in the statute indicating this law to be a special one for the laying out or altering of roads and highways. The act is very general in its nature. Even the vacation of specific streets and alleys has been held by this court to be a constitutional exercise of authority by the legislature, or to be constitutionally delegated to local municipalities. People ex rel. Franchere v. City of Chicago,
The seventh objection is founded on the theory that the act does not provide that contract obligations and judgments in condemnations suits shall be paid solely from moneys derived from the sale of bonds and revenue received. Section 12 of article IX of the constitution is then pointed to. Since this section of the constitution applies only to counties, cities, townships, school districts or other municipal corporations, it is obvious that the debt limitation provision therein contained is not applicable. The only source of payment of any of the contracts or obligations of the commission is its gross income from money received from the sale of bonds, and income from tolls, licenses, gifts, donations, concessions, fees and rentals. Section 2(f) of the act defines the word “cost” as embracing the cost of construction as well as every other imaginable type of cost of a toll highway system. Section 14 empowers the commission to issue bonds to finance in whole or in part the cost of the acquisition, purchase, construction, reconstruction, improvement, relocation, alteration or extension of any toll highway, and the expenses incident to the exercise of the power conferred upon it in relation to the construction of a toll highway. It is therefore clear that condemnation judgments and all other contract obligations are expressly provided for and contemplated in this section.
It is claimed in plaintiff’s eighth objection that because specific and narrow directions are not laid down by the legislature there is a lack of due process and an unlawful delegation of power. Because section 28 of the act provides that determinations made by the commission in the exercise of the discretionary powers given it shall be conclusive and not subject to review, the further claim is made that both the due-process clause and article III of the State constitution are violated. We cannot agree with the contention that the constitutional doctrine of separation of powers is violated. The claim of plaintiff that the wording of section 2(d) of the act, to the effect that the toll highways shall be designed and constructed in the best professional judgment of the engineering staff,, amounts to an uncontrolled discretion in the engineering staff with nothing left to the judgment of the members of the commission is without force. We do not construe the clear import of the act so unreasonably. The ultimate and final judgments and determinations are those of the commission, although necessarily based upon judgments and decisions of engineers, lawyers and experts in other fields.
Again, and as before stated, we believe the delegation to the commission is valid — it is not a legislative function which is being exercised, it is administrative and ministerial. In People ex rel. Curren v. Schommer, broad power delegated to highway commissions to plan and construct roads was held not to be an illegal delegation of legislative authority. See, also, Loomis v. Keehn, at 344-5. The same problem was dealt with in Department of Public Works and Buildings v. Lanter,
Plaintiff asserts that section 19 of article II of the State constitution, which provides that every person shall find a ready remedy in the law for injuries and wrongs received, is violated by the last sentence of section 28 of the act making the commission’s determinations in the area of its discretionary powers conclusive and not subject to review. We construe this section as being limited to discretionary matters as long as the administrative body exercises its powers within the confines of its statutory authority. Recourse to the courts is not denied where bad faith, fraud, corruption, manifest oppression or a clear abuse of discretion enters into the commission’s determinations; the presence of any of these conditions will give ready access to the courts. The determinations of the commission can constitutionally be made conclusive so long as none of the above evils are present. In reality this statutory language is no more than an express declaration of a rule of law long in existence in this State. (See Mowry v. Department of Public Works and Buildings,
The ninth objection of plaintiff argues that section 7(b) of the act purports to authorize suits to acquire land held by State agencies, contrary to section 26 of article IV of the State constitution. A reasonable construction of the act supports the conclusion that condemnation proceedings against the State are not authorized by the act. The legislative power to transfer property from one public use to another seems to be sustained by the authorities. Property devoted to the public use may be taken by authority of the legislature for a different public use, even if the earlier enterprise is thereby wholly destroyed. (
The fact that a different method of financing is employed does not change the character of the toll highways and properties under this act. It is a public use of public property for public benefit. It is controlled and administered by a public agency and when all bonds are retired the highways become a part of the State general highways system. In its wisdom the legislature made the Governor and Director of Public Works and Buildings ex-officio members of the commission, foreseeing the necessity of liaison and co-operation between other State highways and toll highways. A similar objection was made in the New Jersey Turnpike case in City of Newark v. New Jersey Turnpike Authority, 81 Atl. 2d 705. The court there held public lands of the city could be taken for turnpike purposes declaring: “The city further asserts that under section 14 of the act the Authority cannot take public lands now devoted by the City to the public use without the consent of its Board of Commissioners and that the plenary powers of the City under the Home Rule Act (R.S. 40:67-1 et seq., N.J.S.A.) to regulate and control its streets have not been extinguished or impaired by the Turnpike Authority Act. These assertions are so devoid of merit as to approach the specious and may be summarily dealt with. First, these assertions are utterly incompatible with the right of eminent domain granted the Authority by section g(j) of the act, which specifically provides that the Authority may acquire by eminent domain any lands and other property ‘including public lands, parks, playgrounds, reservations, highways or parkways, owned by or in which any county, city, borough, town, township, village, or other political subdivision of the State of New Jersey has any right, title or interest, or parts thereof or rights therein * * *.’ A clearer specification of the extent of the authority’s power to condemn the city’s property would be difficult to draft. Second, the idea that any and every municipality along the route of the proposed turnpike could effectively veto either its location or the manner of its construction by a withholding of consent is in direct conflict with the very concept of a turnpike designed to serve the best interests of the entire state and not merely those of particular localities. Third, section 14 of the act is obviously not intended to be a limitation upon the Authority’s power of eminent domain, but rather to make clear that the Authority and municipalities have .the power to arrange privately for the transfer of municipal lands to the Authority ‘without the necessity for any advertisement, order of court or other action or formality, other than the regular and formal action of the authorities concerned.’ * * * The Legislature has broad and well established powers over municipalities, (Stothers v. Martini,
The tenth, and final, objection concerns itself with the right of the commission to employ counsel under subsections 6(d) and (e) of the act. It is contended that these subsections violate section 1 of article V of the State constitution. Those sections authorize the commission to appoint assistant attorneys by and with the consent of the Attorney General and to retain special counsel subject to the approval of the Attorney General. It is expressly provided that such assistant attorneys and special counsel shall be under and subject to the control, direction and supervision of the Attorney General and shall serve only at his pleasure. This court has held that the establishment of the office of Attorney General, under section 1 of article V of our constitution, endowed that office with all of its common-law powers and duties. We have further held that neither the General Assembly nor the judiciary can deprive the Attorney General of any common-law power inherent in that office. An inherent power of the Attorney General is the exclusive prerogative of conducting the law business of the State, both in and out of the courts, except where the State constitution or a constitutional statute may provide otherwise. Fergus v. Russel,
In Fergus v. Russel, relied upon by the plaintiff, we held invalid certain appropriations to the Superintendent of Insurance purporting to authorize expenditures by him for “legal services” and “travelling expenses of attorneys.” In that case the authority attempted to be conferred on. the Superintendent of Insurance was entirely independent of control in the Attorney General. We there recognized that, “there were other representatives of the crown in the courts at common law, but they were all subordinate to the Attorney General.” And in Saxby v. Sonnemann, we pointed out that the multiplicity of duties of the Attorney General forbids personal attention to all of them and that the Attorney General may act through deputies or assistants in carrying out his duties.
Although it can be urged from a literal reading of these sections that the commission may select and fix the compensation of assistant attorneys or special counsel, such a construction would render them unconstitutional. We are not compelled to interpret the sections so literally that we must hold them unconstitutional. People v. Adduci,
In arriving at the true legal effect of the subsections objected to and the legislative intent they embody, it is important to note that section 12 of the act in express terms declares the Attorney General is the commission’s attorney and legal adviser.
The proper construction of the act is that the commission, from the funds available to it, allocates so much money as is necessary to pay for necessary legal services. The function of the commission in making funds available for special counsel and attorneys is analogous to the function of the legislature in appropriating moneys to the Attorney General from the general revenues of the State. By the amount it appropriates and by the limitations of salary rates, the legislature, too, in a sense controls the appointment and the compensation of assistant Attorneys General. It is only in this sense that the commission can be said to appoint or fix compensation of special counsel or assistant attorneys. In harmony with our earlier holdings, the legislature intended that these special counsel and assistant attorneys be as much a part of the staff of the Attorney General and subject to his control in all respects as are those assistants paid from the funds appropriated directly to him by the General Assembly. Even though attorneys and special counsel for the commission may perform legal services for the State, their right to do so exists only because they are subordinates of the Attorney General.
Moreover, neither section 1 of article V nor any other provision of the constitution inhibits the expenditure of revenue derived from highway tolls for the purpose of defraying the legal expenses incident to the construction, maintenance and operation of the toll highway system. Such legal expense may validly include the compensation of assistant attorneys or special counsel utilized by the Attorney General in discharging his duty as attorney for the commission. Under the provisions of the statute here considered, the Attorney General is fully recognized as the attorney and legal adviser of the commission and the assistant attorneys or special counsel are completely subordinate to him. By proper construction of these subsections we conclude they do not contravene section 1 of article V of the constitution. These provisions are a valid method of enabling the Attorney General to perform his legal functions as attorney for the commission in a manner harmonious with the overall design of the act that the cost of the toll highways, including legal expenses, be borne from revenue derived from the tolls collected for their use.
In summation, we find no valid constitutional objection to any of the provisions of this act. The judgment and decree of the circuit court of Sangamon County are in all respects affirmed.
Judgment and decree affirmed.