It is with respect to the constitutionality of proposed legislation that advisory opinions have been most useful, but it may be questioned whether this usefulness is not diminished by the tendency to regard such opinions as binding judicial precedents. The theory of advisory opinions was that the judges are the most competent legal officers of the state; and that their legal advice might be appropriately used in certain cases which did not involve controversies between private parties. Of course, in connection with the giving of advisory opinions, if they were authorized by constitutional provision, it would be possible to provide also that no opinion should be given without formal argument, but such opinions would in many cases have to be given on short notice, and probably do not involve as careful safeguards as does the decision of a constitutional issue in a case between private parties; although, as has already been suggested, the decision of a controversy does not itself always bring out all of the points at issue as to the question of constitutionality.

Courts on the whole have been opposed to the giving of advisory opinions, and in some states whose constitutions require such opinions, the courts have attempted to limit rather narrowly their actions in giving advice. There has on the whole been no tendency to adopt in other states a requirement for such opinions.

If the initiative and referendum were to be adopted, one extended use of the advisory opinion may be suggested. The initiative involves legislating by popular vote, and if constitutional defects exist in a proposal to be submitted to popular vote, there may be wisdom in stopping the submission for this reason, because the popular vote would in such case be merely a useless expense. It is for this reason that a proposal was once made in Iowa that in adopting the initiative and referendum a plan at the same time be adopted of submitting each popularly initiated measure to the supreme court for advice as to its constitutionality, before the measure were submitted to the people.

The constitution of Illinois provides that: "All judges of courts of record inferior to the supreme court shall on or before the first day of June of each year, report in writing to the judges of the supreme court such defects and omissions in the laws as their experience may suggest; and the judges of the supreme court shall on or before the first day of January of each year, report in writing to the governor such defects and omissions in the constitution and laws as they may find to exist, together with appropriate forms of bills to cure such defects and omissions in the laws." This provision, which was carried over from an earlier statute in Illinois, has been copied by several states since 1870. Little attention has ever been given to this provision by the courts. In 1909 Governor Deneen addressed a communication to the judges of the supreme court, requesting the aid of the court in framing a valid primary election law. In answer to the governor's request, the justices replied that the aid sought under this provision of the constitution could not properly be given. Justices Cartwright and Carter, in addition, submitted a comprehensive argument covering the

subject of advisory opinions and the requirement that judges report defects and omissions in the law.16

The reporting of defects in the laws by judges proved of some value when required by statute with respect to a proposed revision of the statutes (which later became the revised statutes of 1874) but the provision has been practically, if not entirely, useless since it came into the constitution of Illinois.17

16 243 Ill. pp. 9 to 41 (1909).

17 For a full discussion of the subject of advisory opinions, see Arthur R. Ellingwood, Departmental Cooperation in State Government, New York, MacMillan, 1918. Dr. Ellingwood thinks that the advisory opinion with respect to the constitutionality of legislation is useful and should be extended.

X. CLAIMS AGAINST THE STATE.

Development in Illinois. No provision was made in the constitution of 1818 for the adjustment of claims against the state. An act of March 23, 1819, provided that the auditor of public accounts might sue and be sued on behalf of the state. When a judgment was rendered against the auditor of public accounts he was to draw a warrant on the treasurer for the amount of the judgment. This warrant was to be paid out of money not otherwise appropriated. This act was repealed in 18292 by an act which provided that the auditor of public accounts might be sued, but that the judgment was not to be conclusive upon the state until examined by the general assembly. By the act of 1829 the general assembly was to make an appropriation to satisfy a judgment or so much of it as was deemed just. Suit against the auditor of public accounts was to be brought only in the county in which the seat of government was located, and an appeal to the supreme court was expressly provided for.

The act of 1829 was replaced in 1845 by another act which was, however, similar in general terms. In 1847 an act was passed providing that all unliquidated claims arising from the canal should be proved up by witnesses before the state trustee of the canal, and that all unliquidated claims arising from the internal improvement system should be proved before the auditor of public accounts, and filed with the secretary of state. This act requires persons having unliquidated claims against the state from any cause whatever, to make out vouchers, and present the claims together with an affidavit of their correctness, and to file them in the office of the secretary of state. It also limited the time in which claims could be brought to two years.

The constitution of 1848 provided that the general assembly should direct by law in what manner suits might be brought against the state. The general assembly seems not to have acted upon the matter, however, and between 1848 and 1870 the act of 1847 was the only law in force, relating to claims against the state.

The proposed constitution of 1862 contained a provision that suits might be brought against the state in the circuit court of the county where the seat of government was located, but change of venue was permitted.

The constitution of 1870 provides that the state of Illinois shall never be made a defendant in any court of law or equity. From the

1 Illinois Laws, 1819. p. 184.

2 Revised Laws of Illinois, 1829, p. 171. Revised Statutes, 1845, pp. 394, 464.

4 Illinois Laws, 1846. p. 32.

Constitution of 1848, Art. III., Sec. 34.

Constitution of 1870, Art. IV., Sec. 26.

debates in the constitutional convention of 1869-70, it appears that the state's experience with the internal improvement and canal bonds was responsible for the adoption of this provision. In 1841 the fund commissioner of the canal obtained $261,560 from Macalister and Stebbins. As security he turned over 804 bonds of $1,000 each. Shortly after this transaction thirty internal improvement bonds of $1,000 each were turned over to Macalister and Stebbins, on which further advances were to be made. No advances other than the $261,560 were ever made, but later an order was given to Macalister and Stebbins for 41 bonds of $1,000 each which they obtained. Canal script to the amount of $38,215.44 was also received by Macalister and Stebbins. The final accounting showed that they had received bonds and script to the value of $913,215.44 and that they had advanced only $261,560. Upon failure of the state to comply with the terms of the contract, Macalister and Stebbins declared the bonds forfeited and demanded payment in full of the $913,215.44. In 1847 an act was passed authorizing the funding of the state debt at par but the Macalister and Stebbins bonds were specially excluded from its operation. At the same session an act was passed authorizing a settlement with Macalister and Stebbins at 26 cents on the dollar. This offer was refused.

In 1849 another act was passed authorizing a settlement by repaying the money advanced with 7 per cent interest.10 All of the bonds but 114 were funded under this act. The 114 had passed into the possession of other parties, and the holders claimed to have purchased before they had any knowledge that the state refused to pay them at par. The holders of these bonds besieged the legislature for relief until 1865, when an act was passed compelling the surrender of the bonds under penalty of forfeiture of both interest and principal. The amount allowed on each $1,000 was $248.13.

In the constitutional convention of 1869-70 it was contended that these holders of the bonds were not bona fide purchasers, but that the courts would be bound by technical rules of evidence which might have allowed a recovery of the full face value of the bonds,11 had the matter been one for judicial determination.

A proposal of amendment permitting the general assembly to provide for commissioners or arbitrators to investigate and report any claims against the state, subject to review of the general assembly, was defeated in the convention of 1869-70. It was urged that this would enable the general assembly to shift responsibility, and that such commissioners would be irresponsible bodies, subject to political pressure.

Interpretation of the constitution of 1870. A brief review is given below of the decisions interpreting the constitutional provision

7 Debates, Constitutional Convention 1869-70, p. 961.

For history of the Macalister and Stebbins bonds see: Davidson & Stuve's History of Ill. p. 673; Ford's History of Ill. p. 210; Laws, 1846, p. 163; Laws, 1849, p. 43.

Laws, 1846, p. 163.

10 Laws, 1849, p. 43.

11 Debates of constitutional convention, 1869-70, page 991.

that "the State of Illinois shall never be made defendant in any court of law or equity."

The state cannot be made a party defendant in a proceeding to levy a special assessment to defray the cost of constructing a local improvement even though it owns property that will be benefited by the improvement.12 It is improper for the Attorney General to file a cross petition in a condemnation proceeding because a cross petitioner in such a proceeding is in effect a defendant;13 and this seems to be true even though the state may be required to pay the costs in an abandoned condemnation proceeding in which it was the petitioner. But it is entirely proper for a defendant in a suit in equity brought by the state to file a cross bill.15

As long as a state officer is acting within the scope of his authority, a suit against him is a suit against the state and cannot be maintained. Thus, a suit cannot be maintained against the penitentiary commissioners to recover damages for breach of a contract to furnish convict labor, or to compel performance thereof.16 Nor can a suit for damages for personal injuries sustained as a result of the falling down of a grandstand at the state fair grounds be maintained against the state board of agriculture." But a state officer who attempts to transcend his authority, may be restrained by the courts. An officer who attempts to enforce the collection of fees under an improper interpretation of a statute,18 or who is about to pay out money under an unconstitutional statute,19 may be enjoined by the courts. A state officer who attempts to deprive an individual of the free enjoyment of his property cannot set up as a defense to an injunction suit against him the fact that the suit against him is in effect a suit against the state, for by his actions in interfering with the use of another's property he is transcending his authority.20 And a civil service employee who has been discharged without cause is entitled to a writ of mandamus to compel the Auditor of Public Accounts to issue a warrant for the salary justly due him during the time that he was illegally prevented from performing the duties of his position.21

Claims against state in federal courts. The state can not be sued by a private citizen in the federal courts, as the 11th amendment to the constitution of the United States provides; "The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or posecuted against one of

12 In re City of Mt. Vernon. 147 Ill. 359 (1893): Report of Attorney General, 1900, p. 191; see City of Chicago v City of Chicago, 207 Ill. 37 (1904). 13 People v Sanitary District of Chicago, 210 Ill. 171 (1904).

14 Deneen v Unverzagt. 225 Ill. 378 (1907).

15 Brundage v Knox, 279 Ill. 450 (1917).

16 People v Dulaney, 96 Ill. 503 (1880).

17 Minear v State Board of Agriculture, 259 Ill. 549 (1913); but see State Board of Agriculture v Brady, 266 111. 592 (1915).

18 G. A. Insurance Co. v Van Cleave. 191 Ill. 410 (1901).

19 Burke v Snively, 208 II. 328 (1904); Fergus v Russell. 270 Ill. 304 (1915); See for the statutory regulations of this matter. Laws. 1917, p. 534.

20 Joos v Illinois National Guard, 257 Ill. 138 (1913).

21 People v Stevenson, 272 Ill. 215 (1916).