Green v. Black

Appellant filed a bill in the superior court of Cook county seeking to restrain General Carlos E. Black, Adjutant General of the State, Charles C. Dawes, Francis M. Allen and Thomas S. Hammond, commanding officers in the State militia of this State, from the use, other than by deposit in the State treasury, of such moneys as were derived from the rentals of certain State armories located in the city of Chicago. Allen and Hammond were dismissed as defendants. Black and Dawes demurred to the bill. The demurrer was sustained and the bill was dismissed for want of equity. The cause is here on appeal.

The bill sets out the maintenance of the various armories as property of the State and alleges that the Adjutant General has general supervision over the armories; that the Broadway armory, located at 5815 Broadway, in the city of Chicago, is under the immediate supervision of Charles C. Dawes; that it has been, and is from time to time, rented to various organizations for purposes not having to do with the training of the National Guard; that during the past seven years the rentals therefrom have aggregated $24,000, and that other funds have been derived from that property as rentals, the amount of which the complainant is not advised. The bill also alleges that the rents so derived are not deposited in the State treasury but are kept by the officer in command of the armory, with the knowledge of the Adjutant General, in bank accounts designated as the "Armory or regimental fund;" that such rentals belong to the State and should be paid into the State treasury, and that there was no authority for depositing them otherwise.

Appellees, in support of their demurrer, invoke section 3 1/2 of article 18 of the military and naval code of this State. (Cahill's Stat. 1931, p. 2669; Smith's Stat. 1931, p. 2826.) Section 3 1/2 reads as follows: "Subject to such reasonable regulations as may be promulgated by the Adjutant General, the use of armories may be permitted for any reasonable and legitimate civilian activities so long as such activities do not interfere with their use for military purposes. Any proceeds received in any armory above the expenses incident to such use may be placed in an armory fund and used for recruiting, athletic and recreational activities and other purposes in the interest and for the benefit of the members of the company or companies at the particular armory." This section was enacted by the legislature in 1931 as an addition to an act entitled "An act to authorize the erection of an armory at Chicago, Illinois, for the use of naval forces of the State of Illinois and making an appropriation therefor," approved June 29, 1927.

Appellant argues that under the constitution all rentals arising from such armories must be deposited in the State treasury and can be withdrawn therefrom only in pursuance of appropriations made by law, and then only on warrants issued against the appropriation by the State Auditor of Public Accounts, and since this is so, section 3 1/2 violates these constitutional requirements and is void. The parts of the constitution against which it is said this act offends are article 3, section 17 of article 4 and section 23 of article 5. The argument is that there is provided but one depository for public moneys and that is the State treasury, and that all public funds must be deposited there, and that as the rentals of armories are revenues from the property of the State they are State revenues, and in contemplation of the law are money in the State treasury and must be there deposited. No section of the constitution in express terms requires that this be done, and cases cited by appellant do not support his contention that by implication arising from the language of the constitution such duty exists.

Section 1 of article 5 creates the office of State Treasurer and prescribes his duties. Section 7 of article 9 requires that all taxes levied for State purposes shall be paid into the State treasury. Section 23 of article 5 provides that all fees payable by law for any services performed by an officer, as provided in article 5, shall be paid in advance into the State treasury. These are the only constitutional provisions which directly impose any duties on the State Treasurer or deal with the payment of State funds into the State treasury. When State money has once been received by the State Treasurer, section 17 of article 4 of the constitution prevents its withdrawal except in pursuance of an appropriation made by law and on the presentation of a warrant issued by the Auditor of Public Accounts. (People v. Russel, 311 Ill. 96.) The constitutional provisions relied upon by the appellant refer only to the means of withdrawing public funds from the State treasury or the payment thereinto of fees of State officers or taxes. (People v. Lippincott, 65 Ill. 548; People v. Miner, 46 id. 384.) The provisions relied upon by appellant do not, nor do any other provisions of the constitution, require the payment into the State treasury of moneys paid for the use of State armories by civilians or private organizations. The General Assembly has control of the revenues and finances of the State, restricted only by constitutional provisions. The General Assembly may provide, as to revenues other than State taxes and the fees of State officers, that when such revenues are collected they may be appropriated to a use specified in the act. Such is, in effect, an appropriation of such revenues to the purpose so specified and amounts to a declaration that such revenues are not to be paid into the State treasury.

The question then arises, Has the legislature determined that funds arising from the rental of these armories shall be deposited otherwise than in the State treasury and used in a manner other than through legislative appropriations and warrants of the Auditor of Public Accounts? The language is, as we have seen, that the proceeds from such rental above expenses incident to such use may be placed in an armory fund and used for recruiting, athletic and recreational activities and other purposes in the interest and for the benefit of the members of the company at the particular armory from which the rentals have accrued. Counsel urge that statutory provisions require the deposit of these funds in the State treasury, and that section 3 1/2 was not designed or intended by the legislature to amend or change such statutory provisions. They point to section 7 of the act relating to the State treasurer, approved April 23, 1873, (Cahill's Stat. 1931, p. 2682,) which declares that the State Treasurer shall receive the revenues and all other public moneys of the State, and section 2 of an act in relation to the payment of public money into the State treasury, enacted in 1911, (Cahill's Stat. 1931, p. 2638,) which provides that it shall be the duty of every officer, board, commission, commissioner, department, institution, arm or agency of the executive department of the State government, the University of Illinois excepted, to pay into the State treasury without delay, and in any event within thirty days, the gross amount of money received for or on behalf of the State, without any deduction on account of fees, salaries, costs, expenses or claims.

In construing a statute the purpose of the act is to be kept in mind and the words used are to be liberally construed to that end. (People v. Harrison, 191 Ill. 257; Smith's Stat. 1931, chap. 131, sec. 1.) Prior to July 1, 1911, the only statutory provision with reference to the deposit of money arising in the State militia was section 20 of article 6 of the State Militia act, (Smith's Stat. 1931, p. 2819,) which provided that all moneys arising from the sale of damaged or surplus military stores and property shall be turned into the State treasury and shall constitute a fund to be known as the State military fund, to be kept separate and paid out only on proper vouchers certified by the Adjutant General and approved by the commander in chief. In 1911 an act was passed declaring that the Secretary of State, Auditor of Public Accounts, Superintendent of Public Instruction, Adjutant General, and all like executive and administrative boards, departments and institutions of the State government therein named, are agencies and departments of the State government, and that all moneys received by each of such officers, boards, commissions, departments or institutions for or on behalf of the State shall be paid into the State treasury, to be paid out only on appropriation and warrant of the Auditor of Public Accounts. In 1917 the Fiftieth General Assembly passed what is commonly known as the Civil Administrative Code. (Hurd's Stat. 1917, p. 595; Laws of 1917, p. 2.) That act did not include the State militia nor the Adjutant General in the division of officers, commissions, boards and departments of the State. In 1921 the General Assembly amended sections 1, 2 and 4 of the act of 1911 referred to, (Laws of 1921, p. 586,) by adding sections 2a and 2b. Section 1 as so amended then provided that the officers of the executive department of the government of the State, the clerk of the Supreme Court, the departments of State government created by the Civil Administrative Code in 1917, and all other officers, boards, commissions, commissioners, departments, institutions, arms or agencies of the executive departments of the State, the University of Illinois excepted, are subject to the provisions of this act. It will be observed that these amendments designated who should be the officers of the executive departments of the State government, and that the Adjutant General was not included in that list as amended.

Until the enactment of section 3 1/2 of article 18 of the State Militia act herein quoted, in 1931, no express authority existed for renting a State armory to anyone. By section 3 of article 18 of the State Militia act enacted in 1927 the armory of each regiment or division is made subject to the orders of the Adjutant General and put under the charge of its commanding officer, who is required to keep therein all property furnished by the State. In section 3 1/2 of this act it provides for the rental of property and placing the income therefrom in a fund to be used for the benefit of the members of the company at that particular armory. It is thus seen that such rentals constitute a new type of revenue created by section 3 1/2. The section creating that revenue provides a new and different manner and means of its disposal. This must be our determination of the intent of the legislature in enacting section 3 1/2, for if it was not the purpose to provide a new and different means of using such funds no reason may be perceived for its enactment, since it would neither add to nor change the statute as it then existed. The fact that the legislature has provided that such funds are to be used for recruiting, athletic and recreational activities "and other purposes" in the interest and for the benefit of "the company or companies at the particular armory," evidences a particular use and appropriation of funds, and discloses, we think, quite clearly, an intention that such rentals are not to be treated as other public funds are treated and controlled but used for purposes not common to the application of public funds and for the benefit of the companies at the armories where the rentals arise. This the legislature had the right to do.

Courts are required, in the construction of statutes, to determine, if possible, the intention of the legislature. Section 3 1/2 does not purport to be an amendment of any other act but is a separate act, which, if it be given any force, must be held to be the means adopted by the legislature to provide a particular fund for the named uses of the company or companies of the armory from which the fund is derived, and it seems clear that to deny it such meaning is to deprive it of any reason or purpose for its enactment. It is a rule of construction that statutes in pari materia are to be construed together as though constituting one act. This rule applies, however, only to such statutes as are in themselves consistent with each other. The provisions of section 3 1/2 are not consistent with earlier enactments on the subject of the deposit of State revenue, but evidence a definite legislative intent to change the law as to the deposit and use of State funds by creating a new and differerent fund to be used in a different manner and for a new purpose. This being true, appellant's contention that the funds must be paid into the State treasury cannot be sustained, and the superior court was right in sustaining the demurrer to his bill and dismissing the same for want of equity. Its decree will be affirmed.

Decree affirmed.