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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. 6238

August 1, 1984

APPROPRIATIONS:

Intent to appropriate moneys in future years

VETERANS:

Appropriation of moneys to trust fund

The Legislature may, but is not required to, appropriate moneys to the veterans' trust fund in an amount equal to the declared earnings as determined by the Department of Treasury as provided in 1946 1st Ex Sess PA 9, Sec. 1c(2)(a).

Mr. Frank A. Schmidt, Jr.

Michigan Veterans' Trust Fund

Department of Management and Budget

Lansing, Michigan

You have requested my opinion with respect to 1946 1st Ex Sess PA 9, Sec. 1c, MCLA 35.601c; MSA 4.1064(1c), which authorized the transfer of assets from the veterans' trust fund to the State's general fund to meet cash flow requirements. 1946 1st Ex Sess PA 9, Sec. 1c(2)(a), supra, provides for annual appropriations from the general fund:

'(2) To reimburse the Michigan veterans' trust fund for the bonds, notes, and other evidences of indebtedness transferred pursuant to this section, to provide for the administration of this act, to furnish college tuition grants for children of disabled or deceased veterans, there is hereby appropriated from the feneral fund:

'(a) For the fiscal year beginning October 1, 1976, a sum of $3,100,000.00; and for each fiscal year thereafter, a sum to be determined by the appropriations committees of the senate and house, based on the interest as determined by the department of treasury which would have been earned from investment of the trust fund principal amount of $50,000,000.00; less interest earned by investment of the principal amount repaid. The annual rate of interest is to be determined by the department of treasury and forwarded in writing on August 1 of each year to the department of management and budget and the appropriations committees of the house and senate.'

You have advised that although the Department of Treasury has determined the earnings in accordance with the procedures set forth in 1946 1st Ex Sess PA 9, Sec. 1c(2)(a), supra, none of the funds have been appropriated by the Legislature to the veterans trust fund.

Your question is whether the Legislature is obligated to appropriate funds annually in an amount equal to declared earnings as determined by the Department of Treasury.

In Board of Education of Oakland Schools v Superintendent of Public Instruction, 392 Mich 613, 620-621; 221 NW2d 345 (1974), the Court described the process of budgeting and appropriations as follows:

'Although the Michigan Legislature may at times place authorization provisions and appropriation provisions in the same bill, we believe that any provision that does not take initial effect during the ensuing fiscal year is intended to function only as an authorization--an intention to appropriate. The dynamics of the budget change from year to year on the basis of the revenues derived and the expenditures required by the people of Michigan. Responsible fiscal policy consequently also requires a yearly reassessment of revenues, spending goals and priorities.

'The Michigan Constitution of 1963 brought to this state new measures designed to require an annual review of the budget and to provide for annual fiscal accountability in both the legislative and executive branches. See, Const 1963, art 4, Sec. 31 and art 5, Sec. 18 and the 'Convention Comment' accompanying each section. To construe 1970 PA 100, Sec. 16a(5) as urged by appellee would violate the spirit if not the letter of these constitutional provisions. The Legislature would be, in effect, appropriating in advance of its ability to accurately forecast available revenues and would thereby be unable to match revenue with appropriations as required by Const 1963, art 4, Sec. 31. In addition, such prospective appropriations would force the Governor to approve or veto the expenditure far in advance of his ability to assess the fiscal needs of the state. See generally, Const 1963, art 5, Secs. 18 and 19. We do not believe that the Legislature intended either of these results.' (Footnote omitted. Emphasis added.)

The Michigan Supreme Court in Advisory Opinion on Constitutionality of 1975 PA 227 (Questions 2-10), 396 Mich 465, 501-502; 242 NW2d 3 (1976), applied the holding of Board of Education of Oakland Schools, supra, to a statute which made appropriations to the state campaign fund for the ensuing year and for subsequent years and concluded:

'Irrespective of the fact that Sec. 101 was violative of art 4, Sec. 31 in that it was passed before certain general appropriation bills, Sec. 101 could only serve as an appropriation for one fiscal year under the rationale of Board of Education of Oakland Schools v Superintendent of Public Instruction, 392 Mich 613, 620; 221 NW2d 345 (1974).

'In Oakland, dealing with a statute which purported to be an appropriation bill, but which did not take effect during the ensuing fiscal year, we held that 'any provision that does not take initial effect during the ensuing fiscal year is intended to function only as an authorization--an intention to appropriate.'

'The Court felt that such construction avoided conflict with art 4, Sec. 31, for if such a provision were to be effective as an appropriation, the Legislature would be unable to match revenues with appropriations as is required under the Constitution.

'Section 101(4) presents a very similar situation. That section reads as follows:

'(4) An amount equal to the amounts designated under subsection (2) each year is appropriated from the general fund of the state to the state campaign fund. The amounts appropriated under this section shall not revert to the general fund but shall remain available to the state campaign fund for distribution without fiscal year limitation except that any amounts remaining in the state campaign fund on December 31 immediately following a gubernatorial general election shall revert to the general fund.'

'This provision is a continuing appropriation, i.e. an appropriation that does take effect in the ensuing fiscal year, but which by its terms continues to appropriate beyond that fiscal period.

'After the ensuing fiscal year, in which revenues can be matched with the appropriation, the conflict with art 4, Sec. 31 created by such a statute is identical with that created by the type of provision found in Oakland; in both situations, the budgetary procedure required by the constitutional provision becomes impossible.

'Therefore, under the rationale of Oakland, there can be an appropriation to the state campaign fund, only for the ensuing fiscal year but not thereafter, appropriations necessarily being made on a year-to-year basis.' (Footnotes omitted.)

Although 1946 1st Ex Sess PA 9, Sec. 1c(2)(a), supra, as last amended by 1980 PA 353, purports to mandate the Legislature to appropriate funds in future years for a particular purpose, this seeming mandate, however, does not bind the Legislature. This provision is in the nature of an expression of an intention of the Legislature with regards to future appropriations.

It is my opinion, therefore, that the Legislature may, but is not required to, appropriate to the veterans' trust fund an amount of funds equal to the declared earnings as determined by the Department of Treasury as provided in 1946 1st Ex Sess PA 9, Sec. 1c(2)(a), supra.

Frank J. Kelley

Attorney General


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