Opinion #6399

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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. 6399

November 13, 1986

CONSTITUTIONAL LAW:

GOVERNOR:

Const 1963, art 5, Sec. 19--veto by Governor of provisions of appropriations bills

Veto of provisions of appropriations bills

Since 1986 Enrolled SB 712, Secs. 9(6), 31, and 33; 1986 Enrolled HB 5388, Sec. 41(1); 1986 Enrolled HB 5396, Sec. 73; and 1986 Enrolled HB 5389, Sec. 42, set aside a definite sum or sums of public money, a veto by the Governor of the aforesaid provisions is authorized by Const 1963, art 5, Sec. 19.

Because 1986 Enrolled SB 712, Sec. 30, and 1986 Enrolled HB 5388, Sec. 41(2), (3), and (4), do not set aside a definite sum or sums of public money, a veto by the Governor of the aforesaid provisions is unauthorized by Const 1963, art 5, Sec. 19.

Honorable Harry Gast

State Senator

The Capitol

Lansing, Michigan 48913

You have requested my opinion on whether the Governor, pursuant to authority vested by Const 1963, art 5, Sec. 19, may veto specific provisions of four appropriations bills without also vetoing the expenditure line to which the vetoed language refers. The appropriations bills passed by the Legislature referenced in your opinion request, the public acts, and the corresponding sections vetoed by the Governor are as follows:

Bill Number

SB 712

HB 5388

HB 5396

HB 5389

Public Act

1986 PA 213

1986 PA 214

1986 PA 217

1986 PA 218

Section(s)

9(6), 30, 31, 33

The contents of each of the vetoed provisions will be discussed seriatim.

1986 Enrolled SB 712

Enrolled SB 712 was enacted to make appropriations for the Department of Corrections and certain related correction purposes for the fiscal year ending September 30, 1987. In Sec. 1, the Legislature made certain line item appropriations pertinent to your inquiry. Each has been lettered to facilitate analysis. The appropriations are:

A. "State prison of southern Michigan--168.0 FTE positions 11,397,400"

B. "Community alternatives--5.0 FTE positions 7,829,400"

C. "Equipment 268,700"

D. "Academic/vocational programs--46.0 FTE positions 2,386,400"

Appropriation "A" may be found under the heading "INSTITUTIONAL CLINICAL APPROPRIATIONS," appropriation "B" under the heading "FIELD SUPERVISION," and appropriations "C" and "D" are listed under "STATE PRISON OF SOUTHERN MICHIGAN."

The Governor signed Enrolled SB 712, but vetoed Secs. 9(6), 30, 31, and 33. Section 9(6) provides:

"Included in the appropriation under subsection (1) is $20,000.00 for a grant to the Grand Rapids junior college alternatives to jail programs, modern problems and project intercept classes. [Item "B" above.] The college shall submit a quarterly report to the legislature including the capacity of each course, the average daily attendance of each course, the number of students completing each course, the number of students not completing each course, and the reason given for termination. By January 1, 1987 the college shall submit to the legislature a report outlining the course agenda."

Section 30 provides:

"Preference is to be given to local community based firms when the department has reason to expend amounts appropriated under section 1 for health care, food services, or other goods and services outside the department. [Item "A" above.] Of the estimated $4,000,000.00 appropriated in section 1 for a secure health care unit, preference is to be given to a local community for such health care service."

Section 31 provides:

"Included in the appropriation in section 1 for the state prison of southern Michigan, academic/vocational programs, [Item "D" above] is $10,000.00 for the renovation of the Jackson community college parole school building."

Section 33 provides:

"Included in the appropriation in section 1 for the state prison of southern Michigan equipment [Item "C" above] is $53,000.00 for communications equipment to establish compatibility between local fire departments and the prison control center for fire suppression activities. The state prison of southern Michigan may provide the communications equipment to Blackman or other local township fire departments as part of their cooperative agreement for fire protection, provided the local fire departments agree to maintain and service the communications equipment during the period the equipment is loaned."

1986 Enrolled HB 5388

Enrolled HB 5388 was passed to provide appropriations for the legislative, judicial, and executive branches, certain state officials, and various agencies for the fiscal year ending September 30, 1987. In Sec. 1, the Legislature provided the following pertinent line item appropriation to the Department of State under the general heading "HISTORICAL PROGRAM":

"Historical site preservation grants--9.6 FTE positions 1,995,000"

The Governor signed Enrolled HB 5388, but vetoed Sec. 41, which provides:

"(1) From the funds appropriated in section 1 for historical site preservation grants, the department of state shall make grants as follows:

(a) For the restoration, preservation, and maintenance of the Wexford county historical museum, $7,500.00.

(b) For the restoration, preservation, and maintenance of the Onaway courthouse, $5,000.00.

(d) For the restoration, preservation, and maintenance of the Ladies Literary Club, $25,000.00.

(e) For the restoration, preservation, and maintenance of the Saint Cecilia music society building, $18,000.00.

(f) For the restoration, preservation, and maintenance of the Great Lakes shipwreck historical museum, $40,000.00.

(g) For the restoration, preservation, and maintenance of the halfway schoolhouse museum, $35,000.00.

(h) For the restoration, preservation, and maintenance of the Chapin house complex, $25,000.00.

(i) For the restoration, preservation, and maintenance of the Silliman house museum, $13,000.00.

(j) For the restoration, preservation, and maintenance of the northeast Oakland county historical museum, $40,000.00.

(k) For the restoration, preservation, and maintenance of the Farmington historical museum, $20,000.00.

(l) For the restoration, preservation, and maintenance of the Mason mainstreet, inc. project, $25,000.00.

(m) For the restoration, preservation, and maintenance of the St. Mary's college, $35,000.00.

(n) For the restoration, preservation, and maintenance of the Sanford historical museum, $30,000.00.

(o) For the restoration, preservation, and maintenance of the national trout memorial, $8,000.00.

(p) For the restoration, preservation, and maintenance of the shrine of the pines, $5,000.00.

(q) For the restoration, preservation, and maintenance of the Michigan transit museum, $5,000.00.

(r) For the restoration, preservation, and maintenance of the St. Clair county farm museum, $30,000.00.

(s) For the restoration, preservation, and maintenance of the women's hall of fame, $20,000.00.

(t) For the restoration, preservation, and maintenance of the Hackley Hume Home, $30,000.00.

(u) For the restoration, preservation, and maintenance of the Sloan museum, $25,000.00.

(v) For the restoration, preservation, and maintenance of the Ella Sharp museum, $50,000.00.

(w) For the restoration, preservation, and maintenance of the Michigan's Own military and space museum, $25,000.00.

(x) For the restoration, preservation, and maintenance of the St. Joseph county courthouse, $30,000.00.

(y) For the restoration, preservation, and maintenance of the Durand depot, $25,000.00.

(z) For the restoration, preservation, and maintenance of the Shiawassee county courthouse, $20,000.00.

(aa) For the restoration, preservation, and maintenance of the Eaton county courthouse, $20,000.00.

(bb) For the restoration, preservation, and maintenance of the Indian village museum, $25,000.00.

(cc) For the restoration, preservation, and maintenance of the Montgomery schoolhouse, $10,000.00.

(dd) For the restoration, preservation, and maintenance of the Trenton history museum, $20,000.00.

(ee) For the restoration, preservation, and maintenance of the railroad history museum, $15,000.00.

(ff) For the restoration, preservation, and maintenance of the Sturgeon point lighthouse, $10,000.00.

(gg) For the restoration, preservation, and maintenance of the Saleski-Green log house museum, $15,000.00.

(hh) For the restoration, preservation, and maintenance of the Oakland county community center, $25,000.00.

(ii) For the purchase of iron artifacts for the Carp River forge museum, $35,000.00.

(jj) For the restoration, preservation, and maintenance of the orchestra hall, $50,000.00.

(kk) For the restoration, preservation, and maintenance of the Henry Ford estate--Fairlane, $50,000.00.

(ll) For the restoration, preservation, and maintenance of the Gerald R. Ford boyhood home, $30,000.00.

"(2) It is the intent of the legislature that beginning October 1, 1987, the department of state shall confer historical site preservation grants only if all of the following criteria are met:

(a) The object of the grant has a historical significance to this state.

(b) The grant is for a 1-time restoration, preservation, or maintenance project.

"(3) The federal funds appropriated in section 1 for the historic site preservation grants shall not lapse at the end of the fiscal year but shall continue to be available for expenditure until the projects for which the funds were reserved have been completed or are terminated.

"(4) Prior to the disbursement of a warrant by the secretary of state, a task force comprised of a person designated by the senate majority leader, the speaker of the house, and an appointee of the governor shall review the purpose of the grant. The secretary of state and the director of the department of commerce shall serve as ex officio members of the task force.

1986 Enrolled HB 5396

Enrolled HB 5396 contains appropriations to the Department of Natural Resources for the fiscal year ending September 30, 1987. The Legislature, in Sec. 1 under the general title "WATERWAYS," set forth the following line item appropriation pertinent to your inquiry:

"Public access sites--155.8 FTE positions 5,505,400"

The Governor signed Enrolled HB 5396, but vetoed Sec. 73, which provides:

"Of the $5,505,400.00 appropriated in section 1 for public access sites, $12,000.00 shall be expended on the hard surfacing of the access road to the waterways public access site on Craig Lake in Branch County. The $12,000.00 shall not be expended unless local and private funds are available to complete the hard surfacing road project."

1986 Enrolled HB 5389

Finally, Enrolled HB 5389 was enacted to furnish appropriations for the Departments of Commerce, Labor, and Licensing and Regulation for the fiscal year ending September 30, 1987. The Legislature, in Sec. 1 beneath the classification "MARKETING AND PUBLIC AFFAIRS," set forth the following line item appropriation relevant to your question:

"Michigan promotion program 8,032,600"

The Governor signed Enrolled HB 5389, but vetoed Sec. 42, which provides:

"Of the amount appropriated in section 1 for the department of commerce, Michigan promotion program, $500,000.00 shall be allocated for the Michigan molecular institute."

It is also noted that while the Governor vetoed certain other portions of Enrolled SB 712, HB 5388, HB 5396, and HB 5389, you raise no question relating to such vetoes.

Enrolled SB 712, Secs. 9(6), 31, and 33; HB 5388, Sec. 41(1); HB 5396, Sec. 73; and HB 5389, Sec. 42, have two common threads running through them. First, each provision designates a specific sum or sums of money to be paid to a listed party or parties, or to be used for a specific purpose, or both, and second, reference to an earlier appropriation is made in Sec. 1 of each respective act from which these specific appropriations are to be paid. Conversely, Enrolled SB 712, Sec. 30, and HB 5388, Sec. 41(2), (3), and (4), do not designate a specific sum to be paid to a listed party or to be used for a specific purpose, or both, but, rather, indicate how certain appropriations made in Enrolled SB 712, Sec. 1, and HB 5388, Sec. 1, respectively, are to be expended.

Analysis of your question begins with Const 1963, art 5, Sec. 19, which provides:

"The governor may disapprove any distinct item or items appropriating moneys in any appropriation bills. 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."

This section first appeared in the Const 1908, art 5, Sec. 37, and was revised and retained in Const 1963 without significant debate by the delegates because the item veto power was considered to be an integral part of the Governor's power in the budgetary process. This section was slightly reworded without change in meaning. 2 Official Record, Constitutional Convention 1961, p 3263, 3381.

The Address to the People stated the rationale for Const 1908, art 5, Sec. 37:

"The foregoing section is a new one. It is designed as a check upon extravagant and improper appropriations. It places, in part, the responsibility for appropriations made for the state upon the governor. He must, therefore, give careful scrutiny to each item in the appropriation bills. Should this power be arbitrarily exercised, which is not likely, the legislature has the power to pass the appropriation over the governor's veto by a two-thirds vote of each house. The necessity for this proviso is found in legislative experience. The mutual exchange of courtesies by members of the legislature whereby one agrees to support the appropriations desired by others, in consideration that the others will support those in which he is interested, has led to extravagance and to many vicious appropriations. The restrictions contained in this section, it is anticipated, will prevent such practice with distinct benefit resulting to the state. The granting of this veto power to the governor, while a departure from the Constitution of 1850, is supported by abundant precedents.

"It is to be noted that in all of the states where there has been a recent revision of their Constitution, the power to veto items in appropriation bills has been given to the governor; and most of the states where the governor does not have such power are those whose constitutions have not been revised in recent years. These precedents, as well as the results to be expected from fixing such responsibility upon the governor, were persuasive with members of the Convention." 2 Official Record, Constitutional Convention 1908, pp 1423, 1424.

The veto power is a legislative function not affirmative and creative, but negative and destructive. Stadle v Twp of Battle Creek, 346 Mich 64, 69; 77 NW2d 329, 331 (1956); Oakland County Commissioner v Oakland County Executive, 98 Mich App 639, 651; 296 NW2d 621, 628 (1980).

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 money 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.

The leading case in Michigan on the item veto is Wood v State Administrative Board, 255 Mich 220, 225; 238 NW 16, 18 (1931). This case involved an appropriations bill presented to the Governor who qualifiedly approved the bill but reduced many specific appropriations in amount without disapproving such items in toto. The court held the Governor's action was unlawful since Const 1908, art 5, Sec. 37, did not specifically confer upon him the power to modify a bill, but merely the power to approve or disapprove:

"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.

"But the language of the provision is not ambiguous. The power of the governor under it, like the general veto power, is to approve or disapprove. Neither the language of the section nor its purpose carries necessary implication of power to reduce an item in amount, nor, in the ordinary use of the words, would such a construction be justified." 255 Mich at 225.

The question at issue, thus, becomes whether the Governor vetoed a specific "item or items" in the aforementioned appropriations bills.

Const 1963, art 5, Sec. 19, does not set forth the meaning of the term "item" in an appropriations bill. In 1 OAG, 1959-1960, No 3435, p 134, 137 (July 9, 1959), it was stated the Governor's constitutional power to veto an item in an appropriation bill refers to an item which is a specific appropriation of money and not merely a general condition or proviso, citing the decision of the United States Supreme Court in Bengzon v Secretary of Justice of the Phillipine Islands, 299 US 410, 414-415; 57 SCt 252, 254; 81 LEd 312, 315 (1937), which stated:

"An item of an appropriation bill obviously means an item which in itself is a specific appropriation of money, not some general provision of law which happens to be put into an appropriation bill."

An item in an appropriations bill contains the subject and the amount of an appropriation. Commonwealth v Barnett, 199 PA 161, 173-174; 48 A 976, 978 (1901). The appropriations bill may contain one or more items. Fulmore v Lane, 104 Tex 499, 507; 140 SW 405, 409 (1911). The line item may be a single line or contained in a numbered paragraph of an appropriations bill. Board of Education of Oakland Schools v Superintendent of Public Instruction, 392 Mich 613, 620-621; 221 NW2d 345, 349 (1974); letter opinion to Senator Harold Hungerford, dated October 3, 1969; letter opinion to Senator James J. Gray, dated December 7, 1971. The item must set apart a specific portion of money. Board 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).

If the amount and the subject of appropriation are stated, it remains a distinct item of appropriation, even though the source of funds for it are listed in another line item in the same appropriation bill. People v Brady, 277 Ill 124; 115 NE 204 (1917); Wood v Riley, 192 Cal 293; 219 P 966 (1923); Fairfield v Foster, 25 Ariz 146; 214 P 319 (1923); Green v Rawls, 122 So2d 10 (Fla.1960).

Moreover, the Legislature may not circumvent the Governor's constitutionally granted veto power by using "language" rather than a strict single line item approach. In Commonwealth v. Barnett, 48 A 976, 978, the court stated:

"If the Legislature, by putting purpose, subject, and amount inseparably together, and calling them an 'item,' [it] can coerce the Governor to approve the whole or none,...."

Fairfield v Foster, supra; letter opinion to Senator James D. Gray, dated December 7, 1971, supra.

Fairfield v Foster, 214 P 319, 323, involved the appropriation of $2100 per annum for a rate clerk out of a larger sum appropriated for salaries and wages as part of the appropriation for the corporation commission. It was held to be a particular item, not merely a direction as to how certain monies were to be expended. The court further stated:

"If we follow that line of reasoning, the Legislature may simply make a separate appropriation in any lump sum for each department, or, by proper language in the general appropriation bill, consolidate the funds for almost the entire state government, and, under guise of 'directing' the expenditure of the money, limit its application to matters and amounts which the Governor believes to be highly injurious in part to the best interests of the state, practically compelling him to choose between abandoning the veto power, or suspending the operations of the government, thus nullifying the provisions of the Constitution under consideration, and going back to the very conditions its makers sought to avoid." (Emphasis supplied.)

The veto power of the Governor does not extend to disapproving provisions imposing conditions or restrictions upon items of appropriations. In re Opinion of the Justices, 294 Mass 616, 621; 2 NE2d 789, 790 (1936); Commonwealth v Dodson, 176 Va 281, 295; 11 SE2d 120, 127 (1940); OAG, 1952-1954, No 1775, p 333 (May 3, 1954).

Under these authorities, Enrolled SB 712, Secs. 9(6), 31, and 33; HB 5388, Sec. 41(1); HB 5396, Sec. 73; and HB 5389, Sec. 42, each set aside a definite sum or sums of public money. Each provision obligates the state treasury and is an item of appropriation subject to the veto authority of the Governor under Const 1963, art 5, Sec. 19, even though the appropriation is made in a paragraph rather than in a single line and the appropriation lists the source of money in Sec. 1 of each act from which it is to be paid.

The appropriations contained in the aforesaid sections are items of appropriation subject to gubernatorial veto. The Governor was not required to veto the line items in Sec. 1 of the respective act from which these appropriations were made in order to exercise his constitutional power of veto in the instant regard, although he was free to do so.

Enrolled SB 712, Sec. 30, on the other hand, does not set aside public money and commit the treasury. Rather, it states conditions for the expenditure of public money appropriated in Sec. 1 for certain purposes. Const 1963, art 5, Sec. 19, does not empower the Governor to veto Enrolled SB 712, Sec. 30. Since no question is raised as to the validity of Enrolled SB 712, Sec. 30, except in the context of the Governor's veto power, this opinion is restricted to the question asked.

Enrolled HB 5388, Sec. 41(2), (3) and (4), also do not set aside any sums of money. Rather, subsection (2) speaks of historical preservation grants that may be made for the fiscal year ending September 30, 1988. At best, this subsection states an intent to make an appropriation for historical site preservation grants for that fiscal year based on certain listed conditions. Board of Education of Oakland Schools v Superintendent of Public Instruction, supra. It is noted that the subsection is beyond the scope of the title of Enrolled HB 5388 which makes appropriations "for the fiscal year ending September 30, 1987."

Subsection (3) is an anti-lapse provision to operate in the event historical grant projects funded are not completed by the end of the fiscal year and grants moneys for the projects which have been encumbered, but have not been disbursed in full. This provision is a condition upon historical site preservation grants made by the Department of State from the remaining appropriations in the line item appropriation for such general purpose in Enrolled HB 5388, Sec. 1.

Finally, subsection (4) is a reporting section for grants to be made by the department from the line item appropriation contained in Enrolled HB 5388, Sec. 1. It is noted that this subsection requires notice for review by, but not the approval of, the task force. Because Enrolled HB 5388, Sec. 41(2), (3), and (4), fail to set aside a definite sum of public money, the Governor may not veto these subsections.

It is my opinion, therefore, that since 1986 Enrolled SB 712, Secs. 9(6), 31, and 33; 1986 Enrolled HB 5388, Sec. 41(1); 1986 Enrolled HB 5396, Sec. 73; and 1986 Enrolled HB 5389, Sec. 42, set aside a definite sum or sums of public money, a veto by the Governor of the aforesaid provisions is authorized by Const 1963, art 5, Sec. 19. It is my further opinion that because 1986 Enrolled SB 712, Sec. 30, and 1986 Enrolled HB 5388, Sec. 41(2), (3), and (4), do not set aside a definite sum or sums of public money, a veto by the Governor of the aforesaid provisions is unauthorized by Const 1963, art 5, Sec. 19.

Frank J. Kelley

Attorney General

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