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The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us)


STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 5852

February 23, 1981

APPROPRIATIONS:

Line item veto of source of appropriation by the governor

CONSTITUTIONAL LAW:

Const 1963, art 5, Sec. 19

GOVERNOR:

Line item veto of source of appropriation

The governor may not, under constitutional veto authority conferred by Const 1963, art 5, Sec. 19, veto only a source of appropriation within an appropriations bill.

Honorable Kerry Kammer

State Senator

The Capitol

Lansing, Michigan

You have requested my opinion on the following question:

May the Governor, under the constitutional power to veto any distinct item or items appropriating monies in an appropriation bill, veto a line designating the fund from which the appropriation shall be made without vetoing the line item or items containing specific appropriations of money?

Const 1963, art 5, Sec. 19 confers upon the Governor the power to disapprove distinct items in appropriation bills:

'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 repassed according to the method prescribed for the passage of other bills over the executive veto.'

You have raised a question of first impression in asking whether the Governor may veto the source of an expenditure without vetoing the expenditure itself. The law is well settled that the Governor's veto power is a power which must be narrowly construed. In Wood v State Administrative Board, 255 Mich 220, 224-225; 238 NW 16, 18 (1931), the Supreme Court discussed the veto power of the Governor and stated:

'The veto power is a legislative function, although it is not affirmative and creative, but is strictly negative and destructive. It cannot be exercised by the executive except through constitutional grant. By Constitution, art 4, Sec. 1, in harmony with American political theory, the State government is divided into the three historic departments, the legislative, executive, and judicial, and by section 2 it is declared that:

'No person belonging to one department shall exercise the powers properly belonging to another, except in the cases expressly provided in this Constitution.' [Const 1908, art 4, Sec. 2, the predecessor of Const 1963, art 3, Sec. 2.]

'This historical and constitutional division of the powers of government forbids the extension, otherwise than by explicit language or necessary implication, of the powers of one department to another. The language of section 37 must be read with all intendments against enlargement beyond its plain words. And if it were ambiguous, the doubt should be resolved in favor of the traditional separation of governmental powers and the restricted nature of the veto.'

Thus, in Wood v State Administrative Board, supra, the Supreme Court held that the Governor may not reduce specific items in an appropriations bill because the constitution did not specifically confer upon the Governor the power to modify a bill but merely the power to approve or disapprove. Also, in OAG, 1952-1954, No 1775, p 333 (May 3, 1954), the Attorney General concluded that Const 1908, art 5, Sec. 37 (the predecessor of Const 1963, art 5, Sec. 19) did not confer upon the Governor the power to veto conditions attached by the Legislature to items in an appropriations bill in that while the Governor had the power to veto a specific appropriation, the Governor could not strike language qualifying an appropriation or directing the methods of its use.

Thus, it is clear that the veto power of the Governor is a limited power which may not be extended beyond the explicit grant of authority in the Constitution.

In Boards of County Road Commissioners v Board of State Canvassers, 50 Mich App 89, 95; 213 NW2d 298, 300 (1973), aff'd, 391 Mich 666; 218 NW2d 144 (1974), the following definition of 'appropriation' was adopted:

'In Black's Law Dictionary (4th ed), p 131, an appropriation in public law is defined as follows:

"The act by which the legislative department of government designates a particular fund, or sets apart a specified portion of the public revenue or of the money in the public treasury, to be applied to some general object of governmental expenditure, or to some individual purchase or expense."

Obviously, the source of funding for an expenditure and the amount to be expended are inseparable portions of an appropriations bill. Thus, the designation of a particular fund is as much a portion of an item in an appropriations bill as is applying a portion of the particular fund to a governmental expenditure.

However, Const 1963, art 5, Sec. 19 empowers the Governor to disapprove only distinct items appropriating monies in any appropriation bill. The Governor is not empowered to approve part of an item of appropriation while disapproving on another part of that same item of appropriation. Thus, the Governor may not veto a source of funding for a particular item of appropriation without simultaneously vetoing an expenditure to be derived from that source. When an expenditure is vetoed, the source is vetoed by implication since no funds will be expended if the veto is not overridden.

Although there are no judicial decisions in either Michigan or other jurisdictions directly on point, there are a number of analogous decisions from other jurisdictions. In Commonwealth v Dodson, 176 Va 281, 290; 11 SE2d 120, 124 (1940), the Virginia Supreme Court reviewed gubernatorial vetoes of portions of an appropriation act. The vetoed portions did not actually set aside funds but rather established conditions for use of the funds. The court invalidated the vetoes, and held that an item is an indivisible sum of money dedicated to a stated purpose and observed:

'If the Commonwealth were to determine to erect a library building and were to set apart a certain sum for structural steel, another for a heating plant, etc., and were finally to provide for a supervising architect at a stated salary, plainly the Governor could not, by veto, dispense with the services of an architect, although the sum to be paid for his services might, in a limited sense, be regarded as an item. That term, as used in the Constitution, refers to something which may may be taken out of a bill without affecting its other purposes or provisions. It is something which can be lifted bodily from it rather than cut out. No damage can be done to the surrounding legislative tissue, nor should any scar tissue result therefrom.' [Emphasis added.]

Similarly, in Bengzon v Secretary of Justice of the Phillipine Islands, 299 US 410, 414; 57 S Ct 252, 254; 81 L Ed 312, 314 (1937), the Supreme Court of the United States invalidated a veto of a nonappropriating provision of an act. The court held:

'It follows conclusively that where the veto power is attempted to be exercised to object to a paragraph or portion of a bill other than an item or items, or to language qualifying an appropriation or directing the method of its uses, he exceeds the constitutional authority vested in him, and his objection to such paragraph, or portion of a bill, or language qualifying an appropriation, or directing the method of its use, becomes non-effective.'

It has also been held that an item contains the subject and the amount of the appropriation. Commonwealth ex rel Attorney General to the Use of School District of Patton v Barnett, 199 Pa 161; 48 A 976 (1901). See also, Fulmore v Lane, 104 Tex 499; 140 SW 405 (1911). In these cases the courts were considering constitutional provisions similar to const 1963, art 5, Sec. 19. The essence of these decisions is that the Governor may not use the limited veto power to change the basic provisions of legislation. To allow the Governor to do so would be to confer upon that office an 'affirmative and creative' legislative function rather than a 'strictly negative and destructive' function. Wood v State Administrative Board, supra; 255 Mich 220, 224; 238 NW 16, 18.

If the Legislature in an appropriations bill provides that funds for an appropriation be derived from a specific source, the Governor may not veto only the line designating the source. The Governor had no power to change an essential element of the legislation. The veto by the Governor of a line of an appropriation bill containing a portion of the source of the funds for certain appropriations made in the bill exceeding any line item or total of items of appropriation to be funded thereby would constitute the rewriting of the appropriation bill by the Governor.

It is, therefore, my opinion that Const 1963, art 5, Sec. 19 does not confer upon the Governor the power to veto only a source of appropriation within an appropriations bill.

Frank J. Kelley

Attorney General

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