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Opinion No. 5394

November 29, 1978


Art 5, Sec. 19 (line item veto)


Line item veto by the governor

Transfer of funds to an account which has been vetoed by the governor as a line item appropriation


Line item veto

Where the Governor has exercised a line item veto, funds may not be transferred to the account which has been vetoed.

Honorable James DeSana

State Senator

Capitol Building

Lansing, Michigan

On August 4, 1977, the Governor line-item vetoed the following line item appropriations in 1977 PA 92, Sec. 1:


Administrative Support/Salaries and wages ... $ 560,200


Plant Disease/Salaries ...................... $1,540,000

Food Inspection/Salaries .................... $1,473,900

Laboratory/Liquor quality analysis ......... $ 81,500"

On the same date he line-item vetoed the following line item appropriation in 1977 PA 93, Sec. 1:


Forest Fire/Salaries and wages .. $3,842,600"

Thus, the affected departments had no funds to pay salaries for the first quarter of the fiscal year unless a supplemental appropriation were enacted. Thereafter an attempt was made to transfer funds into accounts which were line-item vetoed.

You have therefore requested my opinion on the following question:

If a line item appropriation is vetoed by the Governor, may the Governor, Administrative Board, an executive department, or the legislature subsequently transfer funds to the vetoed account?

Const 1963, art 5, Sec. 19, providing for executive veto of items in appropriation bills states that:

'The governor may disapprove any distinct item or items appropriating moneys in any appropriation bill. The part or parts approved shall become law, and the item or items disapproved shall be void unless re-passed according to the method prescribed for the passage of other bills over the executive veto.'

Thus, the state constitution clearly provides that the governor may veto parts of an appropriation bill. The vetoed items thereby become void and ineffective unless re-passed by two-thirds of the members of each house of the legislature in the manner prescribed by Const 1963, art 4, Sec. 33.

The governor's veto is not an affirmative act and unequivocally evidences disapproval of those vetoed portions of an appropriation bill. Wood v State Administrative Board, 255 Mich 220, 224, 225; 238 NW 16, 18 (1931).

Constitutional provisions permitting the governor to disapprove one or more line items contained in an appropriation bill while approving other portions of the bill, are intended to reserve to the governor the right to object to the expenditure of momey for a specified purpose and amount, without the need to include within the veto other expenditures which meet his approval. 82 CJS, Statutes Sec. 54, p 86.

In State ex rel Public Utilities Commission of Ohio v Controlling Board of Ohio et al, 130 Ohio St 127; 197 NE 129 (1935) the court addressed the issue of whether the Controlling Board had the power to transfer moneys from items specified in an appropriation bill, for which appropriation of moneys had been made, to items for which no moneys had been appropriated due to the governor's veto of such items. There, the Public Utilities Commission sought a writ of mandamus commanding the Controlling Board to vote upon the application by the Public Utilities Commission for the transfer of certain appropriated funds to item accounts which the governor had vetoed. Among the powers given the Controlling Board under section 4 of the Appropriation Act was the power 'to transfer to new classifications items in cases where proper code items have not been provided by the legislature.' In denying the writ of mandamus the court stated, 197 NE at 130-131 of its opinion:

'The Governor, pursuant to the authority thus vested in him by the State Constitution, expressly disapproved certain items of the appropriation of money made to . . . the Public Utilities Commission. Under the clear and specific provisions of the Constitution the items so disapproved became void unless repassed in the manner prescribed by the State Constitution. That has not been done. Hence, the items disapproved by the Governor are void.

'The provisions of section 4 of the Appropriation Act authorizing the Controlling Board 'to transfer to new classification items in cases where proper code items have not been provided by the legislature' can have no application here for the reason that such code items were provided by the Legislature, but were vetoed by the Governor. Under the law, as approved by the Governor and filed in the office of the secretary of state, there is no appropriation for the items to which transfers are sought to be made. The veto of the Governor entirely and absolutely removed them. There are no such items left in the bill. If the transfers requested were made, that would be tantamount to the enactment of an appropriation by the Controlling Board. If section 4 of the Appropriation Act were construed otherwise than as above indicated, that section would thereby be rendered unconstitutional, for it would result in overriding the Governor's constitutional right of veto by a board created by the Legislature.

'The Legislature itself can override the Governor's veto only by a vote of three-fifths of the members elected to each house of the General Assembly. The Controlling Board of course, has no such power. The Legislature is powerless to confer on any administrative board authority that would result in thwarting or circumventing the veto power of the Governor.'

Therefore, it is my opinion that funds may not be transferred to an account which has been vetoed by the Governor as a line item appropriation.

Frank J. Kelley

Attorney General