Graham v. Illinois State Toll Highway Authority

Annotate this Case
Graham v. Illinois State Toll Highway Auth., Nos. 83491, 83492, 83662 (3/19/98)
Docket Nos. 83491, 83492, 83662 cons.--Agenda 16--
November 1997.
STEPHEN GRAHAM et al., Appellees, v. THE ILLINOIS
STATE TOLL HIGHWAY AUTHORITY et al., Appellants.
Opinion filed March 19, 1998.

JUSTICE BILANDIC delivered the opinion of the court:
At issue in this case is the constitutionality of sections 24
and 25 of the Toll Highway Act. These provisions set forth the
procedure for spending of toll highway revenues by the Toll
Highway Authority. 605 ILCS 10/24, 25 (West 1996). This
spending scheme has been in force, in substantially its present
form, since 1953 and was held constitutional by this court under
the Illinois Constitution of 1870. We are here called upon to
determine whether this method of spending withstands scrutiny
under the Illinois Constitution of 1970. We now hold that the
method of spending set forth in the Toll Highway Act does not
violate the 1970 Constitution.

FACTS
The Illinois State Toll Highway Authority (the Authority)
was established by the Toll Highway Act in 1967. 1967 Ill.
Laws 2748 (eff. April 1, 1968). The Authority is the successor
to the Illinois State Toll Highway Commission, which had been
established by statute in 1953. 1953 Ill. Laws 1314 (eff. July 13,
1953). Insofar as pertains to this appeal, the 1967 statute is
substantively the same as the 1953 statute, except that the term
"Authority" is substituted for "Commission."
The Authority is "an instrumentality and an administrative
agency of the State of Illinois" created to finance, construct,
operate and maintain a system of toll highways through and
within the State of Illinois. 605 ILCS 10/1, 8 (West 1996). The
Authority consists of 11 directors, two of whom are the
Governor and the Secretary of Transportation, ex officio, and the
remainder of whom are appointed by the Governor with the
advice and consent of the Senate. 605 ILCS 10/3 (West 1996).
The Toll Highway Act also creates an advisory committee,
composed of 7 members of the House of Representatives
appointed by the Speaker, 7 members of the Senate appointed
by the President, and 15 members appointed by the Governor.
The advisory committee advises the Authority on all matters
relating to policy and the administration of the toll highway
system. 605 ILCS 10/3.1 (West 1996).
The Toll Highway Act grants the Authority the power to,
inter alia: acquire, own, use and dispose of real and personal
property; enter into contracts; employ and discharge employees;
retain special counsel; and make and repeal resolutions, by-laws,
rules, rates and regulations. 605 ILCS 10/3, 8 (West 1996). The
Authority is also empowered to fix the rate for tolls for the
privilege of using the toll highways. The tolls are to be set at
the lowest reasonable rates that will provide sufficient funds for
the operations and debt service of the Authority. 605 ILCS
10/10, 19 (West 1996). The Toll Highway Act further grants the
Authority the power to issue bonds for any lawful purpose to be
paid solely out of the revenues of the Authority. 605 ILCS
10/17 (West 1996). Prior to issuing bonds for a proposed toll
highway, the Authority must hold a public hearing, submit
preliminary plans to the Governor for his approval, and obtain
authorization by joint resolution of the General Assembly. 605
ILCS 10/14.1, 14.2 (West 1996). All bonds issued by the
Authority must state on their face that they do not represent a
debt of the State of Illinois and are payable solely from the
revenues of the Authority. 605 ILCS 10/17(h) (West 1996). The
Toll Highway Act further provides that, if any funds are
appropriated to the Authority by the General Assembly, the
Authority must repay those funds to the state treasury. 605 ILCS
10/18 (West 1996). When all bonds and other obligations of the
Authority have been paid, or a sufficient amount for payment
has been set aside in trust, and all money appropriated by the
General Assembly has been repaid to the state treasury, the toll
highways shall become a part of the state free highway system
and the Authority shall be dissolved. 605 ILCS 10/21 (West
1996).
The Toll Highway Act also requires the Authority to file an
annual report covering its activities for the preceding calendar
year, an annual capital plan and a 10-year capital plan. In
addition, the Auditor General is required to annually audit the
books and records of the Authority and to file a certified copy
of that audit with the Governor and the Legislative Audit
Commission, to be open to public inspection. 605 ILCS 10/23
(West 1996).
The provisions of the Toll Highway Act at issue in this
appeal, sections 24 and 25, set forth the Authority's spending
power. 605 ILCS 10/24, 25 (West 1996). In pertinent part,
section 24 provides that all moneys received by the Authority
shall be paid to the state treasurer to be held as a special fund
known as the Illinois State Toll Highway Authority Fund (the
Toll Fund). The moneys in the Toll Fund are to be disbursed on
the order of the Authority for the purposes provided in the Act.
Section 24 states that the Toll Fund is to be considered "always
appropriated" for the purposes of such disbursements. 605 ILCS
10/24 (West 1996). Section 25 provides for the expenses of the
Authority and the compensation of its members to be paid from
the proceeds of bond issues or the revenues received by the
Authority. 605 ILCS 10/25 (West 1996).
According to the record, the Authority has approximately
$980 million in revenue bonds outstanding. The bonds are
secured under various trust indentures. The trustee is the First
National Bank of Chicago (the Bank).
The plaintiffs, Stephen Graham, William DeWoskin and
Manuel Kramer, purporting to represent the class of users of the
toll highway system, filed this action for injunction and
declaratory relief in the circuit court of Cook County in
September 1995. The complaint named the Authority, Treasurer
Judy Baar Topinka, and Comptroller Loleta Didrickson, as
defendants. The Bank was granted leave to intervene by the
circuit court. The plaintiffs' second-amended complaint
contained five counts. Only count II is the subject of this appeal.
Count II alleged that, in violation of section 2 of article VIII of
the 1970 Constitution, the Governor had not budgeted, and the
General Assembly had not appropriated for, any expenditures of
funds by the Authority for fiscal year 1996. Count II sought to
enjoin the Authority from spending money "unless and until
there is a valid appropriation" to the Authority.
The circuit court denied the Authority's motions for
dismissal and for judgment on the pleadings as to count II, and
ruled that the provisions of the Toll Highway Act which
authorize spending without an annual appropriation violate the
Illinois Constitution of 1970. The plaintiffs moved for a
preliminary injunction preventing the defendants from making
any payments out of the toll funds "other than to make
payments of principal and interest on outstanding bonds issued
by [the Authority] or such other payments necessary for
maintaining the public health and safety, as may be ordered by
the Court." The circuit court denied the plaintiffs' motion for a
preliminary injunction in the form requested by the plaintiffs.
Instead, the court granted a preliminary injunction enjoining the
defendants from processing any warrant or paying any expense
of the Authority or making any disbursement on behalf of the
Authority, other than debt service. The circuit court's
preliminary injunction order stated that it was stayed until
December 15, 1997. The order further provided that "[i]f any
party can demonstrate that an appropriation for the Authority,
which complies with the requirements of article VIII of the 1970
Constitution, has been enacted providing authority for
expenditures by the Authority, the court will vacate the
injunction."
The Authority and the Bank appealed directly to this court
pursuant to Supreme Court Rule 302(a) (134 Ill. 2d R. 302(a)).
The plaintiffs filed an appeal to the appellate court, pursuant to
Supreme Court Rule 307(a), from the denial of the preliminary
injunction in the form requested by the plaintiffs. That appeal
was subsequently transferred to this court and consolidated with
the Authority's and the Bank's appeals. We allowed the Illinois
Health Facilities Authority, the Illinois Educational Facilities
Authority, the Illinois Housing Development Authority, and the
University of Illinois, Southern Illinois University and Northern
Illinois University to file amicus curiae briefs on behalf of the
defendants, and the Village of Long Grove and Michael J.
Madigan, Speaker of the Illinois House of Representatives and
Emil Jones, Jr., Minority Leader of the Illinois Senate, to file
amicus curiae briefs on behalf of the plaintiffs. 155 Ill. 2d R.
345. On November 25, 1997, this court entered an order staying
the circuit court's preliminary injunction order until further order
of this court.
The Authority has filed a motion to strike the plaintiffs'
cross-appellants' reply brief. That motion was taken with the
case. We now grant that motion in part. The portion of the
plaintiffs' cross-appellants' reply brief that contains argument
that is not confined to the plaintiffs' cross-appeal is stricken.
See 155 Ill. 2d R. 343(b)(1) (cross-appellant's reply brief must
be confined strictly to replying to the cross-appellee's arguments
on the cross-appeal). The portion of the cross-appellants' reply
brief that is confined to the cross-appeal stands.

ANALYSIS
The issue presented in this appeal is whether the method of
spending authorized in sections 24 and 25 of the Toll Highway
Act violates the Illinois Constitution of 1970. Those sections
provide, in pertinent part, as follows:
"24. Except as otherwise provided in any bond
resolution, the proceeds derived from the sale of bonds,
and all receipts and income derived from tolls, licenses,
gifts, donations, concessions, fees, rentals, and all other
revenues from whatever source derived, shall, within
three days after receipt thereof, be paid to the Treasurer
of the State of Illinois, and held by him as a special
fund known as the Illinois State Toll Highway Authority
Fund, except that the Authority may retain portions of
the Illinois State Toll Highway Authority Fund as a
locally maintained construction fund revolving account
and as a revenue fund revolving account, where
authorized by a bond resolution, and as locally
maintained change funds, where necessary for the
operations of the Authority. The State Treasurer shall be
ex officio custodian of such special fund, which fund
shall be held, invested and disbursed for the purposes
provided herein upon the order of the Authority and in
accordance with provisions and covenants of any bond
resolution authorizing the issuance of bonds which have
not been paid or deemed paid. *** Said special fund
shall be considered always appropriated for the purposes
of disbursements, as provided in this Act, and shall be
paid out and disbursed only as provided herein, and
shall not, at any time be appropriated or diverted to any
other use or purpose." 605 ILCS 10/24 (West 1996).
"25. After the issuance of revenue bonds to finance
the construction of toll highways, and repayment from
the proceeds of such bonds of any amount repayable to
the state treasury pursuant to Section 18, the expenses
of the Authority, and the compensation of the members
thereof, and all other costs of said toll highways and its
administration and operation shall be paid from the
proceeds of such bond issues or from the moneys
received by the Authority as tolls or otherwise in the
operation of said toll highways." 605 ILCS 10/25 (West
1996).
The plaintiffs argue that these provisions are
unconstitutional because they permit the Authority to spend
money without an annual legislative appropriation as required by
the 1970 Constitution. The Authority and the Bank, on the other
hand, contend that the legislature acted within constitutional
bounds when it authorized the Authority to spend its revenues
for the purposes specified in the Act without an annual
legislative appropriation.
This court has previously considered the constitutionality of
the method of spending set forth in the toll highway legislation.
In People v. Illinois Toll Highway Comm'n, 3 Ill. 2d 218
(1954), this court upheld various aspects of the predecessor
statute to the Toll Highway Act against challenges based upon
provisions of the 1870 Constitution. In particular, this court
rejected a constitutional challenge to the statute's spending
scheme. The predecessor statute's spending provision was
identical, in relevant part, to that contained in sections 24 and
25. Like the current statute, the predecessor statute provided that
the revenues collected by the Commission were to be paid to the
state treasurer and held by him as a special fund and disbursed
upon the order of the Commission. Ill. Rev. Stat. 1953, ch. 121,
par. 314a45. The plaintiff argued that this provision violated
article IV, section 17, of the 1870 Constitution, which provided
that "no money shall be drawn from the treasury except in
pursuance of an appropriation made by law." In rejecting this
argument, the court stated:
"[T]he section [of the toll highway legislation]
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, 352 Ill. 623, that the
General Assembly's control of State revenues and
finances is restricted only by our constitution and that
the General Assembly may provide as to revenues other
than State taxes and fees of State officers, that when
such revenues are collected they may be appropriated to
a use specified in the act. It was then declared that such
is, in effect, an appropriation of such revenues to the
purpose so specified." Toll Highway Comm'n, 3 Ill. 2d
at 228-29.
The Toll Highway Comm'n decision also considered
whether the predecessor statute violated a provision of the 1870
Constitution prohibiting the State of Illinois from being made a
defendant in any court. Ill. Const. 1870, art. IV, sec. 26. The
predecessor statute, like the current version, authorized suits for
damages to be brought against the Commission. Ill. Rev. Stat.
1953, ch. 121, pars. 314a39, 314a52. In resolving this issue, this
court reasoned that it must determine whether the Commission
was a "mere department" of the state government or was an
"independent legal entity." Toll Highway Comm'n, 3 Ill. 2d at
224. The court concluded that, although in many respects the
Commission is "intimately associated with the regular organs of
government," the "financial structure of the Commission is
otherwise largely independent of the regular State government."
As the court explained:
"The funds which [the Commission] 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." Toll Highway Comm'n, 3 Ill. 2d at 225.
This court concluded that subjecting the Commission to suit did
not violate the constitutional prohibition on subjecting the state
to suit. In so holding, the court relied primarily on the fact that
"under no circumstances can the general funds of the State be
reached in order to satisfy an obligation of the commission."
Toll Highway Comm'n, 3 Ill. 2d at 227.
Based upon the Toll Highway Comm'n decision, the
Authority contends that this court has already held that the
method of spending contained in the Toll Highway Act meets
constitutional requirements. The Authority argues that this
decision should be controlling in this case. We agree that, were
we still guided by the provisions of the 1870 Constitution, this
court's decision in Toll Highway Comm'n would be controlling.
The challenged spending structure of the current statute is
virtually identical to that challenged in the Toll Highway
Comm'n case. In that decision, this court expressly differentiated
between the funds spent by the Toll Commission and the
general funds of the state. This court went on to hold that,
because the toll revenues were not state taxes or the fees of state
officers, the General Assembly could constitutionally authorize
the Authority to spend those revenues for the purposes specified
in the statute without an annual legislative appropriation. In a
later decision, this court clarified that the basis for the Toll
Highway Comm'n holding was the character of the funds
involved. In Bowes v. Howlett, 24 Ill. 2d 545, 548-49 (1962),
the court addressed the constitutionality of a statutory provision
containing a continuing appropriation from the general revenues
of the state. The court invalidated the provision because the
1870 Constitution prohibited continuing appropriations. In so
holding, the court distinguished the Toll Highway Comm'n
decision as follows:
"There, the moneys involved were revenues to be
derived from operation of the toll road facilities. Here,
our comments thus far have been addressed to the
$500,000 from general revenues of the State. General
revenues are those derived from the imposition of taxes,
fees, and all other revenues which constitute funds of
the State, [citations], as distinguished from revenues
collected by an authority from members of the public
who use the facilities. [Citations.] The constitutional ***
requirement of prior specific appropriation and
provision for lapse of appropriations apply to the
former but not the latter type of revenue." (Emphasis
added.) Bowes, 24 Ill. 2d at 548-49.
Other statutes authorizing state-related entities to spend their
own revenues without an annual appropriation were also upheld
by this court under the 1870 Constitution. See, e.g., Green v.
Black, 352 Ill. 623, 626-27 (1933); see also People ex rel. Kirk
v. Lindberg, 59 Ill. 2d 38, 40 (1974) (recognizing that
"numerous decisions sustained the validity [under the 1870
Constitution] of expenditures from the State treasury without
current appropriations").
Accordingly, our precedent is clear that the spending
structure set forth in sections 24 and 25 of the Toll Highway
Act did not violate the 1870 Constitution. The plaintiffs do not
dispute this conclusion under the 1870 Constitution. The
plaintiffs, however, contend that the Toll Highway Act's
spending structure cannot withstand scrutiny under the Illinois
Constitution of 1970. Specifically, the plaintiffs urge that section
2 of article VIII of the 1970 Constitution requires that the funds
of the Authority be annually appropriated by the General
Assembly.
Article VIII, section 2, of the 1970 Constitution provides as
follows:
"(a) The Governor shall prepare and submit to the
General Assembly, at a time prescribed by law, a State
budget for the ensuing fiscal year. The budget shall set
forth the estimated balance of funds available for
appropriation at the beginning of the fiscal year, the
estimated receipts, and a plan for expenditures and
obligations during the fiscal year of every department,
authority, public corporation and quasi-public
corporation of the State, every State college and
university, and every other public agency created by the
State, but not of units of local government or school
districts. The budget shall also set forth the indebtedness
and contingent liabilities of the State and such other
information as may be required by law. Proposed
expenditures shall not exceed funds estimated to be
available for the fiscal year as shown in the budget.
(b) The General Assembly by law shall make
appropriations for all expenditures of public funds by
the State. Appropriations for a fiscal year shall not
exceed funds estimated by the General Assembly to be
available during that year." Ill. Const. 1970, art. VIII,
sec. 2.
The plaintiffs argue that, pursuant to section 2, the funds of
the Authority must be both included in the Governor's budget
and annually appropriated by the General Assembly before the
Authority may disburse them.[fn1] Specifically, with regard to
the appropriation provision, the plaintiffs contend that the
Authority's revenues are public funds of the state which may be
expended only pursuant to annual legislative appropriation.
Under sections 24 and 25, however, the Authority is authorized
to spend these funds without an annual appropriation by the
General Assembly. The trial court agreed with the plaintiffs that
sections 24 and 25 violate section 2(b) and enjoined the
Authority from disbursing any funds which have not been
appropriated by the General Assembly. The Authority and the
Bank contend that section 2(b) was not intended to preclude the
legislature from authorizing the method of spending contained
in sections 24 and 25.
We must therefore determine whether the inclusion of
section 2 in the Constitution of 1970 was intended to prohibit
the legislature from authorizing the method of spending this
court approved in the Toll Highway Comm'n decision. At this
juncture, it is important to clarify the focus of our inquiry in this
case. We are presented with a question regarding the scope of
the General Assembly's power to enact a statute which allows
a state-related entity to spend its revenues for specified purposes
without an annual appropriation. There is no dispute that, if it
should choose to do so, the General Assembly could amend the
Toll Highway Act to require that all spending be made pursuant
to annual legislative appropriation. In fact, the Authority being
a creature of statute, the legislature has the power to impose
whatever fiscal or other restrictions on the Authority's
operations it chooses, subject to constitutional limitations.[fn2]
Accordingly, our inquiry here is not concerned with whether the
legislature should alter the Authority's spending structure. To
the contrary, we must determine whether the 1970 Constitution
requires that the legislature annually appropriate for the
Authority's spending. In sum, it is the power of the legislature,
not the Authority, with which we are concerned. Further, "[i]t
is well accepted in this State that the constitution is not regarded
as a grant of powers to the legislature but is a limitation upon
its authority; the legislature may enact any legislation not
expressly prohibited by the constitution." People ex rel. Chicago
Bar Ass'n v. State Board of Elections, 136 Ill. 2d 513, 525
(1990); see also Kluk v. Lang, 125 Ill. 2d 306, 324 (1988).
Interpretation of a constitutional provision begins with the
language of the provision. Committee for Educational Rights v.
Edgar, 174 Ill. 2d 1, 13 (1996). If the language is unambiguous,
it will be given effect without resort to other aids for
construction. Committee for Educational Rights, 174 Ill. 2d at
13. If, however, the meaning of a provision is not clear from its
language, it is appropriate to consult the debates of the delegates
to the constitutional convention to ascertain the meaning they
attached to the provision. Committee for Educational Rights, 174 Ill. 2d at 13; Kalodimos v. Village of Morton Grove, 103 Ill. 2d 483, 493 (1984).
Accordingly, we begin our analysis with the language of
section 2, set forth above. The Authority does not challenge the
trial court's ruling that the Authority's funds must be included
within the Governor's budget under section 2(a). The dispute in
this appeal centers on whether section 2(b) requires that the
Authority's funds be subject to the annual appropriations
process. The plaintiffs contend that section 2(b) requires that all
funds required to be included in the Governor's budget under
section 2(a) must be included in the annual appropriations
process. In contrast, the Authority and the Bank argue that
section 2(b) does not require annual appropriations for all funds
encompassed within the scope of section 2(a). In support of this
position, they point out that section 2(a) expressly applies to
"every department, authority, public corporation and quasi-public
corporation of the State, every State college and university, and
every other public agency created by the State," while section
2(b) applies only to expenditures by "the State." Thus, they
argue, section 2(a) was intended to apply to a broader range of
entities than section 2(b). They further contend that the narrow
scope of section 2(b) was not intended to include the Authority
because that section applies only to spending by "the State" and,
as held in the Toll Highway Comm'n decision, the Authority is
a separate entity from the state.
We find that the language of section 2(b) does not clearly
indicate whether that section requires annual appropriations for
spending of toll revenues by the Authority. It is therefore
appropriate that we look to the drafting history of section 2(b)
to discern the meaning of this provision. Our analysis of this
history leads us to conclude that section 2(b) was not intended
to preclude the legislature from authorizing the method of
spending contained in sections 24 and 25 of the Toll Highway
Act.
Sections 2(a) and 2(b) were proposed to the constitutional
convention by the Revenue and Finance Committee as part of
that Committee's Proposal No. 1, which proposed a separate
finance article for the 1970 Constitution. The Committee's
explanatory report stated that the proposed finance article was
designed to contain "the minimum restrictions necessary to
insure sound management and the flexibility necessary to meet
future economic developments." 7 Record of Proceedings, Sixth
Illinois Constitutional Convention 2008 (hereinafter cited as
Proceedings). The provisions that became sections 2(a) and 2(b)
were included as two separate sections of the proposal, sections
3 and 4, respectively. For ease of reference, we will refer to the
proposed sections as 2(a) and 2(b).
Particularly significant is the Committee report's
explanation of section 2(b). Section 2(b) replaced several
sections of the 1870 Constitution dealing with appropriations.
Among others, the section eliminated provisions that prohibited
the legislature from enacting continuing appropriations (Ill.
Const. 1870, art. IV, sec. 18), and that required that
appropriation bills specify the purposes for which they are made
and the amount appropriated for each purpose (Ill. Const. 1870,
art. V, sec. 16). Section 2(b) also replaced section 17 of article
IV of the 1870 Constitution. Section 17 had provided that "no
money shall be drawn from the treasury except in pursuance of
an appropriation made by law, and on the presentation of a
warrant issued by the auditor thereon." The Revenue and
Finance Committee proposed that this requirement be eliminated
for the following reasons:
"This provision seems, on the surface, to be a
reasonable protection of the public purse, but it has
caused a number of problems. For example, it has been
read to require double appropriation of revolving fund
monies, once to the revolving fund and again to the
agency that uses the services provided by the fund. It
results in the necessity to appropriate such routine items
as tax refunds and payments to local governments
resulting from shared taxes. It has also led to `open-
ended' or indefinite appropriation of federal grants that
might become available. It has been cited as one reason
for permitting universities and other state agencies to
hold certain funds `outside the treasury'.
This Committee is of the opinion that modern fiscal
control is adequate to protect the public purse without
this unnecessarily restrictive provision." (Emphasis
added.) 7 Proceedings 2024.
The Committee's proposal eliminated the above provisions
and replaced them with what would become section 2(b). The
Committee explained that, in drafting the new section, it had
considered "a number of proposals for detailed wording," but
had concluded that it was "impractical and undesirable to
attempt to define the entire fiscal system in a constitution." 7
Proceedings 2031. The Committee explained its intent in
drafting the new section as follows:
"The Committee's proposal to substitute two short
sentences for much longer provisions in Article IV,
Sections 16-19, and in Article V, Section 16 [of the
1870 Constitution], is based upon a desire to permit and
encourage good fiscal practice. Many possible systems
might be used. Some of these might involve, for
example, `no year' appropriations; others might continue
the present Illinois practice of lapsing appropriations.
Some might permit funds to be paid from the state
treasury only if appropriated, and some might also
permit payment upon the basis of other kinds of
authorization." (Emphasis added.) 7 Proceedings 2030.
This report leaves little doubt as to the intent of the
Revenue and Finance Committee in drafting what became
section 2(b). Plainly, the Committee intended to expand the
legislature's discretion in the area of fiscal control. In particular,
the Committee intended to allow the legislature the discretion to
authorize spending other than through the annual appropriations
process. This court had already held, under the more restrictive
provisions of the 1870 Constitution, that the legislature could
authorize the Authority to spend its own revenues in the manner
set forth in sections 24 and 25 of the Toll Highway Act. In fact,
this court held that this statutory authorization was, in effect, an
appropriation of the toll revenues to the purposes specified in
the toll highway legislation. The Revenue and Finance
Committee's report makes clear that the proposed appropriation
provision for the 1970 Constitution was not intended to prohibit
the legislature from authorizing spending other than through the
annual appropriations process. Thus, there is no indication that
the new appropriation provision was intended to alter this
court's holding that the spending provision of the toll highway
legislation was a valid authorization of spending by the
legislature. Consistently, this court has recognized that "neither
under the Constitution of 1870 nor under [section 2(b) of] the
Constitution of 1970 have all State funds been expended
pursuant to appropriations." People ex rel. Kirk v. Lindberg, 59 Ill. 2d 38, 40 (1974).
Further support for this interpretation is found in the
comments made during the discussion of section 2(b) at the
constitutional convention. Sections 2(a) and 2(b) were presented
separately to the convention. Section 2(b) was presented to the
convention by Delegate S. Johnson. The following colloquy took
place between Delegate Johnson and Delegate Coleman
regarding the scope of this section:
"MR. COLEMAN: Now is it correct that there are
millions of dollars of state funds that never get into the
treasury of the state of Illinois?
MR. S. JOHNSON: I believe that is correct.
MR. COLEMAN: And is it the committee's
interpretation that these funds be included in the
governor's Budget?
MR. S. JOHNSON: To the extent that it is necessary
to show--first, to show the financial condition of the
state and, secondly, the amount available for
appropriation by the General Assembly, yes, it would
be.
MR. COLEMAN: But these funds are never
appropriated, are they?
MR. S. JOHNSON: Some of them are not, no.
MR. COLEMAN: So that if you follow that through
to the logical conclusion, the amount of appropriations
by the General Assembly will never come up to the
amount of available income that is projected in the
Budget?
MR. JOHNSON: They could or they could not. The
amount of money that should be subjected to the
appropriation process we have left to the General
Assembly to decide. If there are revolving funds which
they feel ought to be brought into the appropriation
process, they are free to do so.
MR. COLEMAN: Unless the General Assembly
changes the present policy, there will be millions of
dollars in funds that are outside the treasury of the
state of Illinois that would never come into the
appropriation process and they would be spent during
the year?
MR. S. JOHNSON: That may be, yes.
MR. COLEMAN: *** [I]s it the committee's
suggestion that the General Assembly change its present
policy in this area?
MR. JOHNSON: We are not suggesting that they do.
We are suggesting, both in this article and in the one to
follow, that the General Assembly must assume a much
stronger responsibility than they have in the past for the
control of state funds; and this is the principal reason
that we have been so insistent upon establishing a
legislative post-audit and making the General Assembly
responsible that all public funds for auditing--to make
sure that all public funds are used for the purposes for
which they are intended.
MR. COLEMAN: *** I am only trying to get to the
point that we do have funds that do not come into the
state treasury but which currently are being collected
and expended.
MR. JOHNSON: Yes.
MR. COLEMAN: Yet your committee, as I
understand it, is including these funds in the overall
governor's Budget. You want to account for them in the
Budget, and what I am trying to get at is, if you
account for them in the Budget and you do not account
for them in the appropriation, how does this affect the
validity of the Budget?
MR. S. JOHNSON: Well, to the extent that they are
included to show the complete picture--the financial
picture of the agency involved--they would be included
in the Budget, although they may not necessarily be
funds available for appropriation." (Emphasis added.)
2 Proceedings 884-85.
Delegate Coleman's questions were followed up by
Delegate Tomei:
"MR. TOMEI: *** [A]s I understand it, the total
picture presented by the Budget would include, for
instance, revenues received from some of the agencies
like the Toll Road, for instance, but that you would not
require that those revenues that are received by the
agency must then be appropriated by the legislature. In
other words, they could continue to be paid out from
receipts directly to bond-holders if the legislature so
permits?
MR. S. JOHNSON: If the legislature wished to do
that. The second sentence of section 1, which requires
the express authority to obligate and make
payment,[fn3] would cover that if they chose not to
cover it with the appropriation process." (Emphasis
added.) 2 Proceedings 885.
These comments, like the Committee report, clearly indicate
that section 2(b) was not intended to prohibit the legislature
from authorizing spending of certain funds through methods
other than the annual appropriations process, even when those
funds are required to be included in the Governor's budget
under section 2(a).
The plaintiffs contend, however, that other comments by the
delegates reveal that the Authority was intended to be included
within the purview of the annual appropriations process. The
plaintiffs point to several comments by Delegate Netsch in
which she states that entities such as the Toll Road Authority
were to be included in the Governor's budget. As stated by
Delegate Netsch:
"We did want to have an all-inclusive-enough list
here that it would be absolutely clear that agencies such
as the Toll Road Authority and other corporations
created by the state with state funds to carry out state
functions would be picked up and included. Armory
boards, toll road authorities, or whatever." 2
Proceedings 877.
Delegate Netsch further explained that certain entities, including
the Toll Road Authority, had not been included in the
Governor's budget in the past, and that the new budget
provision was therefore being written to explicitly include those
entities. 2 Proceedings 878. The plaintiffs argue that Delegate
Netsch's comments reveal an intent to require the Authority's
inclusion in the annual appropriations process. The plaintiffs,
however, take these comments out of context. As noted, sections
2(a) and 2(b) were presented to the convention as separate
sections and were discussed separately. Delegate Netsch's
comments related only to the budget requirement. In fact,
Delegate Netsch emphasized that she was discussing only the
Governor's budget, not the appropriation provision. 2
Proceedings 877, 880. Moreover, when questioned about the
relationship between the budget provision and the appropriation
provision, Delegate Netsch, after first stating that all funds in
the budget would be expended by appropriation, immediately
corrected herself and stated that some funds in the budget may
be expended by other means. The following colloquy on this
subject took place between Delegates Netsch and Coleman:
"MR. COLEMAN: Mrs. Netsch, I think you stated
over and over about revenue being included in the
Budget and expenditures in the Budget that will not
directly come from the treasury. I think you mentioned
toll roads, and I am thinking in terms of university and
prison funds and what not. I understand there are
several hundred million dollars that doesn't get into the
state treasury at all. I think--what I will ask you, is it
correct to say these funds will be included in the
governor's Budget in the income--the estimated income-
-and also the expenditure thereof?
MRS. NETSCH: That is correct. ***
***
MRS. NETSCH: *** [A]ll those which are public
funds would go into the Budget.
MR. COLEMAN: Now if you include these funds
that don't get into the treasury, I assume you are
anticipating expenditures that would not be
appropriated?
* * *
MRS. NETSCH: We would not anticipate that ***
[w]e would expect that nothing that would be expended
would be expended except pursuant to appropriation.
MR. COLEMAN: Thank you.
MRS. NETSCH: I'm sorry. Let me rethink that a
minute.
MR. COLEMAN: I don't know how you can do it.
That's all I wanted to say here.
MRS. NETSCH: No, I overstated that a little bit, and
I think that was not even directly responsive to what
you raised.
We would expect that everything that was to be
expended would go through the state Budget in
whatever particular form that expenditure might take
place.
MR. COLEMAN: Go through the State Budget, but
it doesn't necessarily have to be expended by an
appropriation?
MRS. NETSCH: Depending on what is done with
some other sections of the constitution." (Emphasis
added.) 2 Proceedings 882.
Thus, Delegate Netsch's comments do not support the plaintiffs'
position that all funds required to be included in the budget are
required to be expended pursuant to annual appropriation.
Rather, Delegate Netsch expressly acknowledged that the
legislature could authorize expenditures through methods other
than the annual appropriations process.
The plaintiffs further contend that a change to the language
of section 2(b) made by the Committee on Style, Drafting and
Submission (hereinafter Style and Drafting) reveals that section
2(b) was intended to require annual appropriations for spending
by entities such as the Authority. As proposed by the Revenue
and Finance Committee, the first sentence of section 2(b) stated,
"The General Assembly shall make appropriations for the
expenditure of public funds." 7 Proceedings 2004. On first
reading, this provision, along with the remainder of the proposed
article, was tentatively approved by the convention sitting as the
Committee of the Whole[fn4] and, per convention rules,
referred to the Style and Drafting Committee, a procedural
standing committee. The Style and Drafting Committee revised
section 2(b) to read, "The General Assembly shall make
appropriations for all expenditures of public funds by the State."
(Emphasis added.) 7 Proceedings 2217. The Style and Drafting
Committee's accompanying explanatory report stated that this
change was made to express "the intent of the Committee of the
Whole that all expenditures of public funds by the State be
pursuant to appropriations." 7 Proceedings 2225. The plaintiffs
contend that this revision reveals an intent to broaden the scope
of section 2(b) beyond that intended by the Revenue and
Finance Committee as set forth in its explanatory report. The
plaintiffs' position is not persuasive. As seen from the above
excerpts from the debates, it was clearly explained that, under
the proposed provision, the legislature would continue to have
the power to authorize some spending by means other than
annual appropriations. We are not directed to any comments in
the debates on section 2(b) which suggest that the Committee of
the Whole disagreed with the Revenue and Finance Committee's
proposed scope of section 2(b). Given the clearly expressed
intent of the Revenue and Finance Committee and the fact that
this method of spending had been utilized by the legislature and
approved by this court for many years prior to the 1970
convention, we think that an intent to prohibit such spending
would have been clearly expressed by the delegates.
In addition, the plaintiffs contend that a proposed change to
section 2(a) by the Style and Drafting Committee supports their
position that all funds required to be included in the budget
under section 2(a) would also be subject to the annual
appropriations process. The Style and Drafting Committee
proposed that section 2(a) be modified to eliminate the clause
which referred to "every office, department, authority, public
corporation and quasi-public corporation of the State, State
educational institutions, and other agencies of the State," and
replace it with simply "the State." The Style and Drafting
Committee explained the reason for this proposed modification
as follows:
"The deletion of this language is intended to avoid the
impact of expressio unius exclusio alterius maxim. The
inclusion of the laundry list of terms to describe offices,
departments, authorities, etc., of the State would imply
that in other instances in the Constitution when the
word `State' was used these offices, departments, etc.,
were not to be included." 7 Proceedings 2224-25.
On the motion of Delegate Netsch, however, this proposed
modification was rejected and the "laundry list" was returned to
section 2(a). Delegate Netsch explained the reason for retaining
the list as follows:
"it is conceivable that the word `state,' as a substitute
for the long list that we had, might in some contexts be
sufficiently broad; but we are most concerned by the
fact that in the revenue article, which was also proposed
by the same committee, the socalled laundry list has
been retained in the section on state debt ***. We are
deeply concerned--in view of the long history of this
state, in which the governor's Budget has not always
extended to all of the agencies and institutions of
government that we intend for it to cover--we are
deeply concerned that the presence in one place in the
constitution of the laundry list, the elimination of it here
might lead to a misconstruction of this section." 5
Proceedings 4213.
We do not agree with the plaintiffs that this proposed change,
which was ultimately rejected by the convention, supports an
interpretation of section 2(b) that is contrary to both the report
of the Revenue and Finance Committee and the comments of
the delegates during the debates.
We note, moreover, that the spending scheme of the toll
highway legislation has been in existence in substantially its
present form since 1953. This court has recognized that the
historical practice of the legislature may aid in the interpretation
of a constitutional provision. In Williams v. Kerner, 30 Ill. 2d 11, 15 (1963), the plaintiff sued to void the Governor's veto of
a redistricting bill passed by the legislature, arguing that
redistricting was a function which the Illinois Constitution
reserved exclusively for the legislature. In affirming the
dismissal of the plaintiff's action, this court noted that previous
redistricting bills, under substantially the same constitutional
language, had been submitted to the Governor for his approval.
This court found this historical practice to be a useful
interpretive aid, reasoning that:
" `General acquiescence cannot justify departure from
the law, but long and continuous interpretation in the
course of official action under the law may aid in
removing doubts as to its meaning. This is especially
true in the case of constitutional provisions governing
the exercise of political rights and hence subject to
constant and careful scrutiny.' " Williams, 30 Ill. 2d at
15, quoting Smiley v. Holm, 285 U.S. 355, 369, 76 L. Ed. 795, 801-02, 52 S. Ct. 397, 400 (1931).
See also People ex rel. Douglas v. Barrett, 370 Ill. 464, 469
(1939) ("in determining the validity of legislative action, the
uniform, continued and contemporaneous construction of the
constitution given by the legislature over a long period of years
and generally recognized by the public, is usually given great
weight by the courts").
As noted, the challenged spending scheme of the toll
highway legislation has been in force since 1953. It was held
constitutional by this court under the 1870 Constitution. The
plaintiffs contend that a provision in the 1970 Constitution was
intended to invalidate this method of spending. However, at no
time during the 27 years since the 1970 Constitution was ratified
has the General Assembly subjected the Authority's revenues to
the annual appropriations process. To the contrary, the Authority
has apparently continued to collect and expend its revenues
without an annual appropriation pursuant to the authorization
contained in sections 24 and 25. Further, during this time, the
legislature has amended the Toll Highway Act numerous times,
without changing the spending provision to require annual
appropriations.
As a final matter, we address an argument raised by amici
curiae filing in support of the plaintiffs. The amici take the
position that the legislature has the power to authorize certain
public entities to spend their own revenues for statutorily
specified purposes without annual appropriations. They contend,
however, that the constitution does not permit the Authority to
be such an entity. The primary basis offered for this contention
is that the toll revenues are paid to the state treasurer. See 605
ILCS 10/24 (West 1996). The amici argue that this fact makes
the Authority's revenues "State funds" which may be expended
only pursuant to annual appropriations. We disagree. The
predecessor version of the Toll Highway Act also provided that
the toll revenues be paid to the state treasurer. See Ill. Rev. Stat.
1953, ch. 121, par. 314a45. Despite this provision, this court
held that the spending structure of the Act was constitutional
under article IV, section 17 of the 1870 Constitution, which
provided that "no money shall be drawn from the treasury
except in pursuance of an appropriation made by law." In
reaching this holding, this court relied on the distinction
between the general revenues of the state and the revenues
received by the Toll Commission, not on whether the funds in
question were physically located in the state treasury or
elsewhere. Toll Highway Comm'n, 3 Ill. 2d at 229.
Like the predecessor statute, the current Toll Highway Act
clearly contemplates that the toll revenues, although paid to the
state treasurer, will not be integrated with the general, tax-
derived revenues of the state. Rather, the statute provides that
the toll revenues will be held by the treasurer as a special fund,
to be used solely for the purposes specified in the Act. See 605
ILCS 10/24 (West 1996). That the moneys in the Toll Fund are
separate from the general funds of the state is further
demonstrated by section 18 of the Toll Highway Act, which
provides that, if any money is "appropriated by the General
Assembly for the payment of ordinary and contingent expenses
of the Authority or *** compensation of the members of the
Authority," that money "shall be repaid to the State Treasury."
(Emphasis added.) 605 ILCS 10/18 (1996); see also 605 ILCS
10/35(c) (West 1996). Moreover, this court has explained the
role played by the state treasurer under this type of statutory
scheme. In Baro v. Murphy, 32 Ill. 2d 453, 458 (1965), this
court upheld the constitutionality of a statutory provision which
directed that the revenues derived from the operation of state
parks were to be paid to the state treasurer and held in a special
trust fund to be used for maintenance and operation costs and
debt service. In rejecting a constitutional challenge to this
provision, the Baro court noted that "[t]he monies channeled
directly into the State Parks Revenue Bond Fund *** are not
general revenue. These specific monies are deposited with the
State Treasurer as treasurer for the Commission rather than as
custodian of the general revenue of the State." (Emphasis
added.) Baro, 32 Ill. 2d at 458. Finally, the interpretation urged
here by the amici is contrary to the explicit comments in the
Revenue and Finance Committee report which indicate that
section 2(b) would permit funds to be paid "from the state
treasury" based upon kinds of authorizations other than annual
appropriations. 7 Proceedings 2030. Accordingly, we do not
agree that the fact that the toll funds are paid to the state
treasurer prohibits the expenditure of those funds pursuant to the
authorization contained in the Toll Highway Act.

CONCLUSION
Accordingly, we hold that section 2(b) of article VIII of the
1970 Constitution does not prohibit the legislature from
authorizing the method of spending contained in the Toll
Highway Act. This court upheld this spending scheme under the
1870 Constitution and the drafting history of section 2(b) clearly
indicates that this section was not intended to alter that holding.
The orders of the circuit court holding sections 24 and 25 of the
Toll Highway Act unconstitutional and preliminarily enjoining
any disbursements pursuant to these sections are therefore
reversed.
In closing, we note that many of the concerns expressed by
the plaintiffs in this case stem from the actions of prior
members of the Authority. This court is well aware of the
allegations of misfeasance which have been directed at the
Authority. As stated, however, the issue presented in this case
concerns the power of the General Assembly, not the Authority.
The power of the Authority, it is conceded by the parties, is
wholly determined by the General Assembly. The wisdom of
continuing to allow the Authority to operate with the fiscal
independence it has enjoyed in the past is a question for the
legislature, not this court, to decide.

Reversed.


[fn1] The trial court found that the Authority is one of the
entities whose funds must be included in the Governor's budget
pursuant to section 2(a). The Authority does not dispute this
ruling. The trial court did not, however, grant any relief to the
plaintiffs on the basis of section 2(a); that is, the trial court did
not order that the Authority was enjoined from making any
disbursements unless such are included in the Governor's
budget. Rather, the trial court enjoined disbursements until a
legislative appropriation should be made. The plaintiffs do not
ask this court to grant any relief based on the Governor's failure
to include the Authority's funds in the budget. In any event, we
note that the July 1997 Illinois State Budget Update includes
budget information on the Authority. See Illinois State Budget
Update, Illinois Bureau of the Budget, July 1997, 42-43. The
plaintiffs do not contend that the information on the Authority's
funds included in this budget update is insufficient to satisfy
section 2(a). Accordingly, there is no need to address the effect
of the Authority's absence from past gubernatorial budgets.

[fn2] We are cognizant of the fact that any legislative change to
the structure or existence of the Authority may impact the rights
of the holders of the Authority's outstanding bonds, and we do
not address whether or how those rights must be considered
should such a change be effected by the legislature.

[fn3] "The State, units of local government and school districts
shall incur obligations for payment or make payments from
public funds only as authorized by law or ordinance." Ill. Const.
1970, art. VIII, sec. 1(b).

[fn4] Under the rules of the 1970 constitutional convention, the
convention sitting as the "Committee of the Whole" would
consider the proposals of the substantive committees such as the
Revenue and Finance Committee.