Docket No. 90585–Agenda 22–November 2001.

THE CITY OF CHICAGO, Appellee, v. WILLIAM G.  

HOLLAND, Auditor General of the State of Illinois, Appellant.

Opinion filed June 19, 2003.

	JUSTICE RARICK delivered the opinion of the court:

	In 1995 the General Assembly amended section 3–1 of the

Illinois State Auditing Act (Auditing Act) (30 ILCS 5/3–1 (West

2000)) to include a provision directing the Auditor General of the

State of Illinois to conduct a compliance and management audit of

the City of Chicago (City) and any other entity regarding the

operation of O’Hare International Airport (O’Hare), Midway

Airport (Midway), and Merrill C. Meigs Field (Meigs)

(collectively, the airports). When the Auditor General attempted

perform an audit under authority of that amendment, the City

sought declaratory and injunctive relief in the circuit court of Cook

County to prevent the audit from proceeding. On the parties’

respective cross-motions for summary judgment, the trial court

entered judgment for the City and against the Auditor General,

holding that the amendment violated article VIII, section 3, of the

Illinois Constitution of 1970 (Ill. Const. 1970, art. VIII, §3). The

Auditor General now appeals. Because the circuit court’s judgment

declared a statute of the State of Illinois invalid, the appeal was

taken directly to our court. 134 Ill. 2d R. 302(a). For the reasons

that follow, we affirm.

	Article VIII, section 3(b), of the Illinois Constitution of 1970

(Ill. Const. 1970, art. VIII, §3(b)) provides that the Auditor

General “shall conduct the audit of public funds of the State” and

“shall make additional reports and investigations as directed by the

General Assembly.” The General Assembly has implemented the

mandates of article VIII, section 3, through enactment of the

Illinois State Auditing Act (30 ILCS 5/1–1 et seq. (West 2000)). 30 ILCS 5/1–2(a) (West 2000). That statute was amended in 1995

to include the following new section:

			“As soon as practical after the effective date of this

amendatory Act of 1995, the Auditor General shall

conduct a compliance and management audit of the City

of Chicago and any other entity with regard to the operation of Chicago O’Hare International Airport,

Chicago Midway Airport and Merrill C. Meigs Field. The

audit shall include, but not be limited to, an examination of

revenues, expenses, and transfers of funds; purchasing and

contracting policies and practices; staffing levels; and

hiring practices and procedures. When completed, the

audit required by this paragraph shall be distributed in

accordance with Section 3–14.” Pub. Act 89–386, eff.

August 18, 1995 (amending 30 ILCS 5/3–1 (West 1994)).

	Following enactment of the amendment, the Auditor General

notified the City that an audit would be conducted in accordance

with the statute’s provisions. The Auditor General’s office

subsequently solicited proposals for furnishing expert professional

services to conduct the audit. A proposal submitted by the firm of

KPMG Peat Marwick LLP (KPMG) was ultimately selected by the

Auditor General.

	When the auditing process commenced, the City filed this

action against the Auditor General in the circuit court of Cook

County. The City’s complaint, as amended, was in four counts.

Counts I and II took issue with the scope of the audit. The City

asserted that under the 1995 amendment to the Auditing Act and

article VIII, section 3, of the Illinois Constitution (Ill. Const. 1970,

art. VIII, §3), the Auditor General’s authority was limited to audits

of public funds of the state. The City complained, however, that

the audit of its airports would go beyond public funds of the state

and would also include examinations of the use of nonstate funds

at the airports and management operations or activities at the

airports that are financed by nonstate funds.

	In count I of its amended complaint, the City alleged that to

the extent the audit embraced expenditures and operations that

were not financed by public funds of the state, it was unlawful

under both the 1995 amendment to the Auditing Act and article

VIII, section 3, of the Constitution. Count II asserted, in the

alternative, that if the 1995 amendment to the Auditing Act could

be construed as allowing the Auditor General to conduct a general

audit that was not restricted to the use of public funds of the state

or to the management of governmental activities financed with

public funds of the state, the amendment would still be unconstitutional under article VIII, section 3, of the Illinois

Constitution. Count III, in turn, alleged that even if the 1995

amendment to the Auditing Act were read to permit an audit of the

use of nonstate funds in connection with the operations of the

City’s airports and even if such an audit did not contravene article

VIII, section 3, of the Illinois Constitution, the 1995 amendment

would violate the prohibition in article IV, section 13, of the

Illinois Constitution (Ill. Const. 1970, art. IV, §13) against special

legislation.

	Count IV of the City’s amended complaint raised no

constitutional claims. It took issue only with KPMG, the firm

retained by the Auditor General, to conduct the audit. The City

claimed that KPMG had performed or was performing services for

the City and was under legal, contractual and ethical duties to

maintain the confidentiality of information it had obtained from the

City in the course of providing those services. The City asserted

that use of KPMG to perform the audit of the airports would

“violate applicable provisions of Illinois law and applicable ethical

rules and would be inconsistent with the legal and contractual

rights of the City.”

	For its relief, the City requested a judgment declaring: (1) that

the Auditor General’s authority under the 1995 amendment to the

Auditing Act is limited to an examination of the use of public funds

of the state by the City in connection with its airport operations;

(2) that article VIII, section 3(b), of the Illinois Constitution does

not authorize the General Assembly to direct the Auditor General

to audit the use of nonstate funds at Chicago airports; and (3) that

if the 1995 amendment to the Auditing Act were interpreted to

require a general audit of the use of funds in connection with the

operation of Chicago’s airports, including funds that do not qualify

as public funds of the state, it would contravene article IV, section

13’s prohibition against special legislation. The City further

requested issuance of an injunction barring the Auditor General

from proceeding with his audit of the City’s airports and

prohibiting him from using KPMG to conduct the audit.

	The Auditor General answered the City’s amended complaint

and asserted a counterclaim based on the City’s failure to comply

with a subpoena issued in connection with the audit of the City’s airports. It subsequently filed a motion to dismiss count IV of the

City’s amended complaint, which challenged the use of KPMG, on

the grounds that the Auditor General’s contract with the firm had

expired and KPMG would therefore not be involved with the audit

of the airports. The circuit court granted that motion and dismissed

count IV. The propriety of that action has not been challenged and

is not an issue in this appeal.

	The litigation continued over the next several years. Following

conferences between the parties and the circuit court, the court

entered an order in December of 1999 staying any further

discovery pending resolution of any issues the parties wished to

raise by way of cross-motions for summary judgment. In March of

2000, the Auditor General filed a motion pursuant to section

2–1005 of the Code of Civil Procedure (735 ILCS 5/2–1005 (West

2000)) asking the circuit court to enter summary judgment denying

the relief sought by the City in its amended complaint and granting

enforcement of the audit-related subpoena as sought in the Auditor

General’s counterclaim. The following month, the City filed a

cross-motion seeking entry of summary judgment in its favor on

counts I through III of its amended complaint and against the

Auditor General on his counterclaim.

	In support of their respective motions, the parties submitted

voluminous documentation concerning the funding of the City’s

airports. The parties prepared and filed additional legal

memoranda, and a hearing on the summary judgment motions was

conducted on June 27, 2000. Based upon the evidence, the law and

the arguments presented to it, the circuit court entered an order

declaring that the Auditor General’s constitutional and statutory

authority to conduct audits extends only to public funds of the

state. In the case of the City’s airports, the court held “public funds

of the State” consist solely of those funds directly disbursed by the

state to the airports. Accordingly, the court concluded that when

carrying out the audit mandated by the 1995 amendment to the

Auditing Act, the Auditor General must limit himself to such funds.

Based on these conclusions, the court denied the Auditor General’s

motion for summary judgment and granted the cross-motion for

summary judgment filed by the City.

	The Auditor General subsequently moved for rehearing and

clarification. That motion resulted in entry of an additional order

by the circuit court. The court’s new order, dated October 13,

included an express holding that the 1995 amendment to the

Auditing Act is unconstitutional because it impermissibly

broadened the Auditor General’s authority. Having declared the

1995 amendment invalid on that basis, the court ruled that it had

no need to address the additional argument that the amendment

violated the prohibition against special legislation. The court then

proceeded to reiterate that it was denying the Auditor General’s

motion for summary judgment and granting the cross-motion for

summary judgment filed by the City.

	The circuit court’s resolution of the parties’ respective

motions for summary judgment entirely disposed of the litigation.

The court’s order was therefore final and appealable. Arangold Corp. v. Zehnder, 187 Ill. 2d 341, 358 (1999). The appeal has been taken directly to our court based on the circuit court’s

determination that a statute of this state, the 1995 amendment to

the Auditing Act, is invalid. 134 Ill. 2d R. 302(a).

	In an appeal from the grant of summary judgment, review is de novo. The purpose of summary judgment is not to try a question of fact, but to determine whether one exists. Summary judgment is

proper where pleadings, depositions, admissions, and affidavits on

file, when viewed in the light most favorable to the nonmoving

party, reveal that there is no genuine issue of material fact and that

the moving party is entitled to judgment as a matter of law. 735

ILCS 5/2–1005(c) (West 2000); Land v. Board of Education of the City of Chicago, 202 Ill. 2d 414, 421 (2002).

	In assessing whether the City of Chicago was entitled to

judgment as a matter of law in the case before us, we must first

consider the validity of the 1995 amendment to the Auditing Act.

As with entry of summary judgment, the constitutionality of a statute is subject to de novo review. Miller v. Rosenberg, 196 Ill. 2d 50, 57 (2001). Statutes enjoy a strong presumption of

constitutionality. Russell v. Department of Natural Resources, 183 Ill. 2d 434, 441 (1998). A party challenging a statute has the

burden of rebutting that presumption and clearly establishing a

constitutional violation. Flynn v. Ryan, 199 Ill. 2d 430, 436 (2002). This court has a duty to construe a statute in a manner that

upholds its validity and constitutionality if such a construction is

reasonably possible. People v. Walden, 199 Ill. 2d 392, 394 (2002).

	The circuit court believed that the 1995 amendment to the

Auditing Act was invalid because it impermissibly broadened the

Auditor General’s power beyond that authorized by article VIII,

section 3, of our state’s constitution (Ill. Const. 1970, art. VIII,

§3). The circuit court’s view was that under the clear and

unambiguous language of article VIII, section 3, the Auditor’s

General auditing authority was reserved for audits of “public funds

of the State.”1 As the court interpreted the 1995 amendment to the Auditing Act, the legislation authorized the Auditor General to

exceed that limitation and undertake audits of the City’s airports

that encompassed more than “public funds of the State.” To the

extent that the 1995 amendment permitted audits that were not

limited to “public funds of the State,” the court reasoned, the law

lacked constitutional authority and was invalid.

	In assailing this conclusion, the Auditor General contends that

the circuit court fundamentally misunderstood the operation of this

state’s constitution. Although article VIII, section 3(b), by its

terms, refers only to audits of “public funds of the State” and does

not purport to authorize the Auditor General to conduct audits that

go beyond “public funds of the State,” the Auditor General notes

that the provision does not expressly prohibit audits that go beyond “public funds of the State” and that under our

constitutional scheme, the General Assembly is free to enact any

legislation it desires so long as the constitution does not specifically

forbid it.

	Our court regards the language in the constitution as a

limitation upon the legislature’s authority, not as a grant of power. Based on that view, our court has held that the General Assembly

is free to enact any legislation that the constitution does not

expressly prohibit. Cincinnati Insurance Co. v. Chapman, 181 Ill. 2d 65, 78 (1998). Where, however, the constitution specifically

addresses the authority of constitutional officers or the power of

the General Assembly to enact particular legislation, basic

principles of constitutional and statutory interpretation still apply.

The court must ascertain the plain and ordinary meaning of the

relevant constitutional and statutory provisions in the constitutional

and legislative contexts in which they appear. See Chicago Bar Ass’n v. Cronson, 183 Ill. App. 3d 710, 718 (1989). Constitutional officers may not act in contravention to the constitutional and

statutory authority conferred on them. See Chicago Bar Ass’n, 183 Ill. App. 3d at 725. Action by a constitutional officer that is not

authorized by the constitutional provisions creating his position and

defining his powers or by legislation promulgated under authority

of such constitutional provisions is impermissible. See Chicago Bar Ass’n, 183 Ill. App. 3d at 725-26.

	That being said, we do not believe that an audit conducted in

accordance with the 1995 amendment to the Auditing Act would

exceed the authority conferred on the Auditor General by the

constitution. The position of Auditor General is created by article

VIII of the constitution (Ill. Const. 1970, art. VIII), which governs

state finance. Section 2(b) of article VIII provides that the General

Assembly “shall make appropriations for all expenditures of public

funds by the State.” Ill. Const. 1970, art. VIII, §2(b). Section 3(a)

of article VIII requires the General Assembly to “provide by law

for the audit of the obligation, receipt and use of public funds of

the State” and establishes the position of Auditor General. Ill.

Const. 1970, art. VIII, §3(a). Section 3(b) of article VIII specifies

that the duties of the Auditor General include conducting “the audit

of public funds of the State.” Ill. Const. 1970, art. VIII, §3(b).

	To implement the provisions of article VIII, section 3, the

General Assembly enacted the Auditing Act. 30 ILCS 5/1–2(a)

(West 2000). The purpose of the Act is to

			“provide a comprehensive and thorough post audit of

the obligation, expenditure, receipt and use of public funds

of the State *** to the end that the government of the State of Illinois will be accountable to the General

Assembly and the citizens and taxpayers, and to the end

that the constitutional and statutory requirements

governing state fiscal and financial operations will be

enforced.” 30 ILCS 5/1–2(b) (West 2000). 

	Based upon the provisions of article VIII and the Auditing

Act, our appellate court has held that “the role of the Auditor

General is to conduct audits with respect to all funds appropriated

or otherwise authorized by the General Assembly following the

Governor’s preparation and submission of the State budget.”

Chicago Bar Ass’n, 183 Ill. App. 3d at 719. The 1995 amendment to the Auditing Act is consistent with that role. Contrary to the

view taken by the circuit court, it does not purport to authorize the

Auditor General to undertake audits that are more far-reaching.

Consideration of the language used in the amendment makes that

apparent.

	By its terms, the amendment requires the Auditor General to

perform a “compliance and management audit” of the City or any

other entity with regard to the operation of the City’s airports. 30

ILCS 5/3–1 (West 2000). Under the Auditing Act, the terms

“compliance audit” and “management audit” are specifically

defined. 30 ILCS 5/1–13, 1–14 (West 2000). Both are types of

“post audits.” Post audits are “post facto examination[s] of books,

documents, records, and other evidence relating to the obligation,

receipt, expenditure or use of public funds of the State ***.” (Emphasis added.) 30 ILCS 5/1–12 (West 2000). The audit

mandated by the 1995 amendment to the Auditing Act therefore

does not exceed the Auditor General’s constitutional authority. He

is charged by the constitution with auditing public funds of the

state, and public funds of the state are what he is expressly called

upon to audit by the 1995 amendment.

	Because the audit required by the 1995 amendment pertains to

public funds of the state and because article VIII, section 3(b), of

the Illinois Constitution charges the Auditor General with

responsibility for auditing public funds of the state, the circuit court

was wrong to declare, in its amended order, that the 1995

amendment was invalid on the grounds that it exceeded the

permissible bounds of article VIII. The circuit court’s analytical error, however, does not end our inquiry. What is before us on

review is the trial court’s judgment, not the reasoning the court

employed. Material Service Corp. v. Department of Revenue, 98 Ill. 2d 382, 387 (1983). Our function is to determine whether the

trial court reached the proper result. The reasons given by a lower

court for its decision or the findings on which a decision is based

are not material if the judgment is correct. See Board of Managers of Dominion Plaza One Condominium Ass’n No. 1-A v. Chase

Manhattan Bank, N.A., 116 Ill. App. 3d 690, 694 (1983). As a reviewing court, we can sustain the decision of the circuit court on

any grounds which are called for by the record regardless of

whether the circuit court relied on the grounds and regardless of

whether the circuit court’s reasoning was sound. Bell v. Louisville & Nashville R.R. Co., 106 Ill. 2d 135, 148 (1985).

	Although the circuit court in this case erred in declaring the

1995 amendment to the Auditing Act invalid, we believe that the

court was nevertheless correct in granting summary judgment in

favor of the City and against the Auditor General to prevent the

Auditor General from enforcing his subpoenas and proceeding with

the audit of the City’s airports. As we have just discussed, the

reason the 1995 amendment to the Auditing Act does not

contravene article VIII, section 3(b), of the constitution is that the

type of audits it authorizes are post audits, which are limited, by

the terms of the Auditing Act, to examination of materials “relating

to the obligation, receipt, expenditure or use of public funds of the

State.” 30 ILCS 5/1–12 (West 2000). The Auditing Act does not

specifically define the phrase “public funds of the State.” It merely

provides that the phrase has the meaning ascribed to it in article

VIII of the constitution. 30 ILCS 5/1–18 (West 2000). Our

appellate court, however, has construed the pertinent constitutional

and statutory provisions to mean that the funds the Auditor

General is empowered to audit are those “appropriated or

otherwise authorized by the General Assembly following the

Governor’s preparation and submission of the State budget.” 

Chicago Bar Ass’n, 183 Ill. App. 3d at 719. That construction is fully consistent with the stated purpose of the Auditing Act, which

is to provide a comprehensive and thorough post audit of the

obligation, expenditure, receipt and use of public funds of the state

“to the end that the government of the State of Illinois will be accountable to the General Assembly and the citizens and

taxpayers.” 30 ILCS 5/1–2(b) (West 2000). 

	Based on the foregoing, there is no question that the Auditor

General could lawfully audit those funds specifically appropriated

or otherwise authorized by the General Assembly for the City’s

airports following the Governor’s preparation and submission of

the state budget. The problem is that none of the City’s three

airports, O’Hare, Midway, and Meigs Field, receives any funding

from the state treasury.

	 An affidavit submitted by the City from its Deputy

Comptroller for Enterprise Funds showed that the funds received

and used by O’Hare and Midway consist primarily of (1) self-

generated revenue from users of the airports, such as fees paid by

the airlines, passengers and tenants, and (2) federal grants. The

City does not pay for the operations of O’Hare or Midway. Their

operations are accounted for separately from the City’s, and their

revenues are deposited in trust accounts held by a bank. They are

not deposited with the City’s treasurer. Since at least 1986, no

state funds were budgeted, obligated or received for use at O’Hare.

Midway previously received minimal state funding (less than 2% of

its total revenues between 1991 and 1995), but that funding

apparently came to an end in 1996. Grants from the state to

Midway during 1995 and 1996 amounted to only approximately

$45,000.

	Meigs Field, the City’s third airport, is paid for by the City and

included within the City’s budget. Although the City receives

funding from the state for a variety of purposes, it has not received

any state appropriations for operation of Meigs Field since 1995,

when the amendment to the Auditing Act at issue in this case was

enacted. Prior to 1995, state funding for Meigs Field was minimal.

	Because of the reduction and eventual elimination of state

funding for the City’s airports, an audit of those airports, which is

limited by statute and by the constitution to public funds of the

state, would necessarily be limited in scope. Based on the materials

in the record, such an audit could not lawfully extend beyond the

limited sums granted by the state for Midway airport in 1995 and

1996. The audit proposed by the Auditor General, however, would

encompass all aspects of the City’s airport operations and operations of the City itself, to the extent those operations related

to the airports, without regard to the source of funding. The circuit

court was therefore correct in ruling that the audit was improper.

It was likewise correct in refusing to enforce the subpoenas issued

in connection with that audit.

	In arguing for the more expansive audit he proposes, the

Auditor General urges a definition of public funds of the state that

is not restricted to funds appropriated or otherwise authorized by

the General Assembly following the Governor’s preparation and

submission of the state budget. Specifically, the Auditor General

asserts that public funds of the state should include federal grants

which the state receives for disbursements to the airports. We

disagree. The City has correctly observed that the state has no

lawful authority to utilize the federal grants for anything other than

their intended purposes. When grants are made by the federal

government for the City’s airports, the state merely serves as a

conduit for the grants’ disbursement. See 620 ILCS 5/38, 40 (West

2000). These are federal monies. That they pass through the state’s

treasury prior to disbursement to the City’s airports does not

convert them into public funds of the State.

	The Auditor General also attempts to justify a more expansive

audit by pointing out that each year the City receives hundreds of

millions of dollars from the state from the state income tax, state

sales tax, and state auto/hotel tax. The Auditor General argues that

because the City uses these funds for municipal services, including

fire and police protection, and because some of those municipal

services are utilized by the City’s airports, the airports can be said

to utilize public funds of the state and are subject to audit on that

basis. Once again, we disagree. The City charges the airports for

the municipal services they utilize, and the airports pay for those

services through the revenues they generate. The provision of such

services therefore cannot be said to involve the expenditure of

public funds of the state, even indirectly. In addition, because the

municipal services used by the airports are paid for through funds

generated by the airports rather than funds from the state treasury,

permitting a state audit of the airports based on their use of

municipal services could not possibly advance the ultimate

objective of the Auditing Act which, as we have indicated earlier in this disposition, is to hold the State of Illinois “accountable to

the General Assembly and the citizens and taxpayers.”

	For the foregoing reasons, we conclude that the circuit court

did not err when it granted judgment in favor of the City and

against the Auditor General on the parties’ respective motions for

summary judgment. The audit of the City’s airports exceeded the

Auditor General’s constitutional and statutory authority and was

properly enjoined. The judgment of the circuit court is therefore

affirmed.

Affirmed.

	JUSTICE GARMAN, dissenting:

	I respectfully dissent. The majority finds the 1995 amendment

to the Auditing Act constitutional by limiting the authority of the

Auditor General to audit only those public funds of the state

“ ‘appropriated or otherwise authorized by the General Assembly

following the Governor’s preparation and submission of the State

budget.’ ” Slip op. at 9, quoting Chicago Bar Ass’n, 183 Ill. App. 3d at 719. This limitation is unduly restrictive. To the contrary, I

conclude that article VIII of the Illinois Constitution and the

Auditing Act set forth a comprehensive scheme for the control,

management, and audit of state finances. The amendment to the

Auditing Act does not contravene the Illinois Constitution and

must be interpreted in a manner to assure that the expenditure of

the public’s money is given appropriate scrutiny.

	The Auditing Act implements article VIII, section 3, of the

Illinois Constitution (30 ILCS 5/1–2(a) (West 1996)) and places

the Auditor General under the control and direction of the General

Assembly (30 ILCS 5/1–2(c) (West 1996)). The Auditor General

is expressly recognized as a legislative officer of the State of

Illinois under our constitution. 30 ILCS 5/1–2(c) (West 1996). The

Auditing Act “is intended to provide a comprehensive and

thorough post audit of the obligation, expenditure, receipt and use

of public funds of the State under the direction and control of the

Auditor General, to the end that the government of the State of

Illinois will be accountable to the General Assembly and the citizens and taxpayers, and to the end that the constitutional and

statutory requirements governing state fiscal and financial

operations will be enforced.” 30 ILCS 5/1–2(b) (West 1996).

	Through the 1995 amendment to the Auditing Act, the

legislature explicitly directs the Auditor General to undertake an

audit of the airports that “shall include, but not be limited to, an

examination of revenues, expenses, and transfers of funds;

purchasing and contracting policies and practices; staffing levels;

and hiring practices and procedures.” 30 ILCS 5/3–1 (West 2000). 

We should construe the statute so that no word or phrase is

rendered superfluous or meaningless. Kraft, Inc. v. Edgar, 138 Ill. 2d 178, 189 (1990). The plain language of the 1995 amendment

with respect to the airports demonstrates that the General

Assembly’s directive to the Auditor General contemplates an audit

beyond a narrow category of state funds limited to only those

public funds of the state directly dispersed to the airports and

totaling only $45,000.

	The essential question we are called upon to determine in this

case is what funds constitute “public funds of the State.” We must

determine whether the legislature intended the 1995 amendment to

the Auditing Act to require the Auditor General to audit all public

funds of the state, or only those state funds passed to the City and

airports through appropriation, grant, or some other form of direct

dispersal.

	The Auditing Act states that the phrase “Public funds of the

State” has “the meaning ascribed to that term in Article VIII of the

Constitution.” 30 ILCS 5/1–18 (West 1996). However, the term

“public funds” is not defined in the Illinois Constitution. Therefore,

we must attempt to assign a meaning to the term as it is used in the

constitution. The best guide to interpreting the Illinois Constitution

is the document’s own plain language. Cincinnati Insurance Co. v. Chapman, 181 Ill. 2d 65, 77 (1998). Interpretation of a constitutional provision begins with the language of the provision. Graham v. Illinois State Toll Highway Authority, 182 Ill. 2d 287, 301 (1998).

	Article VIII, section 1(a), of the Illinois Constitution of 1970

states that“[p]ublic funds, property or credit shall be used only for public purposes.” Ill. Const. 1970, art. VIII, §1(a). Article VIII,

section 3, reads as follows:

		“§3. State Audit and Auditor General

			(a) The General Assembly shall provide by law for the

audit of the obligation, receipt and use of public funds of

the State. The General Assembly, by a vote of three-fifths

of the members elected to each house, shall appoint an

Auditor General and may remove him for cause by a

similar vote. The Auditor General shall serve for a term of

ten years. His compensation shall be established by law

and shall not be diminished, but may be increased, to take

effect during his term.

			(b) The Auditor General shall conduct the audit of

public funds of the State. He shall make additional reports

and investigations as directed by the General Assembly.

He shall report his findings and recommendations to the

General Assembly and to the Governor.” Ill. Const. 1970,

art. VIII, §§3(a), (b).

	In addition to the plain language of section 3 of article VIII,

it is important to note that section 4 does not distinguish between

state and local funds. Section 4 provides:

		“§4. Systems of Accounting, Auditing and Reporting

			The General Assembly by law shall provide systems of

accounting, auditing and reporting of the obligation,

receipt and use of public funds. These systems shall be

used by all units of local government and school districts.”

Ill. Const. 1970, art. VIII, §4.

	This section is evidence of the General Assembly’s

constitutional authority to ensure adequate and responsible

accounting and reporting of public funds at the local level.

Moreover, section 4 reflects the General Assembly’s responsibility

to ensure that all units of local government are properly utilizing

public funds. For example, the General Assembly also permits, or

in some instances mandates, the Auditor General to audit other

political subdivisions in section 3–1. 30 ILCS 5/3–1 (West 1996).

	The majority relies on the appellate court’s holding in Chicago Bar Ass’n v. Cronson for the proposition that “ ‘the role of the Auditor General is to conduct audits with respect to all funds

appropriated or otherwise authorized by the General Assembly

following the Governor’s preparation and submission of the State

budget.’ ” Slip op. at 8, quoting Chicago Bar Ass’n, 183 Ill. App. 3d at 719. While Chicago Bar Ass’n is instructive as to the general background of the Auditor General’s inception and duties, as well

as the types and manner of execution of audits that may be

conducted by the Auditor General, the facts of this case are

distinguishable from Chicago Bar Ass’n. The audit in Chicago Bar Ass’n related to a regulatory agency charged with the regulation of, and admission to, the practice of law in Illinois. It is well settled

that this power is an exclusive function of the Illinois Supreme

Court and is within this court’s inherent judicial power. People ex rel. Brazen v. Finley, 119 Ill. 2d 485, 492-93 (1988). Chicago Bar Associatio'’n did not deal with specific legislation passed by the General Assembly mandating that the Auditor General conduct a specific

audit. The audit in Chicago Bar Ass’n was not initiated at the direction of the General Assembly, but by the Auditor General

himself. Chicago Bar Ass’n, 183 Ill. App. 3d at 714.

	It is also clear that the passage from Chicago Bar Ass’n relied upon by the majority is not compatible with the Illinois

Constitution. In addition to the plain language of article VIII,

article II, section 2, states that “[t]he enumeration in this

Constitution of specified powers and functions shall not be

construed as a limitation of powers of state government.” Ill.

Const. 1970, art. II, §2. In People ex rel. Chicago Bar Ass’n v. State Board of Elections, 136 Ill. 2d 513, 525 (1990), and Graham, 182 Ill. 2d at 301, we stated that it “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.” See also Kluk v. Lang, 125 Ill. 2d 306, 324 (1988).

	The General Assembly has the constitutional authority to

direct the Auditor General to conduct a wide-ranging audit of the

airports and the Auditor General should not be barred from

conducting a legislatively directed audit of public funds of the state

simply because those funds were not first submitted to the

Governor for approval or because the funds have become an inseparable part of a larger whole that also contains funds from

other sources. The Illinois Constitution clearly evinces both a

scheme and a desire for citizens and taxpayers to be assured that

the constitutional and statutory requirements governing state fiscal

and financial operations will be enforced. In so doing, it does not

limit the Auditor General’s authority to “all public funds of the

state that can be clearly identified in the General Assembly’s line-

item budget” or “all public funds of the state that can be

characterized as direct grants or appropriations from an executive

agency of the government of the State of Illinois.” It simply states

that the General Assembly shall provide by law for the audit of the

obligation, receipt, and use of “public funds of the state.”

	The City received no less than $4 billion in public funds of the

state during the years of 1995 through 1998. Were we to adopt the

majority’s limited definition of public funds of the state, the

majority of these public funds would not be subject to the

legislatively mandated audit. The record indicates that the

operations of the airports are funded from a number of different

sources, including self-generated funds, state funds, and federal

funds. Each airport is financed and operated on a stand-alone basis,

separate from the City’s other operations. The revenue and

expenses of O’Hare and Midway are accounted for and audited

separately from those of other City departments and agencies.

Because the operating budget of Meigs is small in comparison with

the other two airports, it is accounted for within the City’s general

corporate fund budget. The Auditor General introduced evidence

that the City receives hundreds of millions of dollars in state

funding annually. Relying on the City’s own financial reports for

1995 through 1998, the Auditor General contends that the City

received a total of approximately $1.922 billion in state funding

from a combination of the state income tax, the state sales tax, and

state auto and hotel taxes. In addition, the City’s financial

statements show that it received annually what were characterized

as “Federal/State Grants.” According to the Auditor General, the

City refused requests to disclose its breakdown of the grants into

state and federal portions. The total for these grants for the years

through 1998 was $2.269 billion. I agree with the majority that

federal grant funds directed without condition to the City or

airports by the federal government via the State of Illinois as receiving agent are not public funds of the state and are not subject

to audit. The use and audit of these funds is governed by federal

law. However, to the extent that such federal funds have been

commingled with public funds of the state and cannot be separated,

the Auditor General should also be permitted to examine such

funds to the extent necessary to produce a meaningful and

adequate audit.

	When conducting an audit, the Auditor General examines

proper management of resources and seeks to identify inefficient

or uneconomical practices to ensure that public funds are being

used to maximum efficiency. To hold that billions of dollars

gathered from the taxpayers and citizens of Illinois are no longer

subject to inspection and are beyond the reach of the constitutional

officer charged with ensuring that they are used efficiently and only

for public purposes, simply because the funds have been

commingled with funds from other nonstate sources, or because

the funds were not a specific grant or appropriation, would

frustrate the purpose of the Illinois Constitution and the Auditing

Act. “Public funds of the state” includes those funds appropriated

by the General Assembly to the airports. In addition, the plain

textual meaning of the term must also include those funds

generated due to actions or policies of the state such as sales tax,

income tax, or grants.

	Therefore, I would find that the 1995 amendment to the

Auditing Act directs the Auditor General to conduct an audit of the

City of Chicago and any other entity regarding the operation of

O’Hare International Airport, Midway Airport, and Merrill C.

Meigs Field, and that the audit should not be limited to only those

state funds directly dispersed to the City through grant or

appropriation. Furthermore, the Illinois Constitution does not

prohibit the General Assembly from directing the Auditor General

to conduct such an audit, as it sets forth a comprehensive scheme

for the control, management, and audit of state finances.

Accordingly, the finding of summary judgment by the circuit court

of Cook County in favor of the City should be reversed and the

cause should be remanded for further proceedings.

\	JUSTICE THOMAS joins in this dissent.