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