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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. 6562

January 24, 1989

APPROPRIATIONS:

Effect of veto of Governor upon funding for certain symphony orchestras

CONSTITUTIONAL LAW:

Const 1963, art 5, Sec. 19--power of Governor to veto appropriations for symphony orchestras

GOVERNOR:

Veto of appropriations for certain symphony orchestra

The Governor is empowered by Const 1963, art 5, Sec. 19, to veto Enrolled 1988 HB 5453, Sec. 823, which purports to make appropriations for certain symphony orchestras in the aggregate amount of 50% of the grants provided to the respective symphony orchestras under the grant program entitled small arts organization support in the fiscal year 1986-1987.

The veto of Enrolled 1988 HB 5453, Sec. 823, by the Governor, unless repassed by two-thirds of the members elected to and serving in each house of the Legislature, removes the funding from 1988 PA 323, Sec. 1, of those symphony orchestras who received funds under the grant program entitled small arts organization support for the fiscal year 1986-1987.

The veto of Enrolled 1988 HB 5453, Sec. 823, results in a reduction in the amount of the appropriation for arts grants contained in 1988 PA 323, Sec. 1, by the aggregate amount equal to 50% of the grants provided the respective symphony orchestras under the grant program entitled small arts organization support in the fiscal year 1986-1987.

Honorable John M. Maynard

State Representative

The Capitol

Lansing, Michigan 48909

You have requested my opinion on three questions which may be combined and restated as follows:

1. May the Governor, pursuant to authority vested by Const 1963, art 5, Sec. 19, veto Sec. 823 of Enrolled House Bill 5453, which became 1988 PA 323?

2. If so, what is the effect of this veto on funding for symphony orchestras?

Enrolled 1988 HB 5453, Sec. 823, provides:

'In fiscal year 1988-89, the council for the arts shall maintain grant levels to symphony orchestras at not less than 50% of the amount that was provided to the individual symphony orchestras in fiscal year 1986-87 under the grant program entitled small arts organization support.'

Const 1963, art 5, Sec. 19, provides:

'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.'

In order to answer your question, it is necessary to determine whether the Governor vetoed a specific 'item or items' containing appropriations of money. This issue was addressed in OAG, 1985-1986, No 6399, p 402, 408-409 (November 13, 1986), wherein it was stated:

'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 Philippine Islands, 299 US 410, 414-415; 57 S Ct 252, 254; 81 L Ed 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 is 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 So 2d 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.'

In Fairfield v Foster, supra, a bill appropriated a lump sum of money for salaries and wages, with a specific provision that the salary for a rate clerk would not exceed $2100 per year; i.e., the bill attempted to establish a maximum salary for the rate clerk. In upholding a veto of this provision, the court stated that it was an 'item' subject to veto by the Governor, and not merely a direction as to how certain monies were to be expended. The court reasoned as follows:

'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.' Id, 323.

Likewise in the instant case, the Legislature has attempted in Sec. 823 of Enrolled HB 5453 to establish a minimum amount of funding for certain symphony orchestras. Based upon the reasoning of Fairfield, supra, such a provision constitutes an item subject to veto by the Governor.

It is my opinion, in answer to your first question, that Const 1963, art 5, Sec. 19, empowered the Governor to veto Enrolled 1988 HB 5453, Sec. 823.

Having answered your first question in the affirmative, it is necessary to address your second question.

A vetoed item becomes void and ineffective unless re-passed by two-thirds of the members elected and serving in each house of the Legislature as prescribed by Const 1963, art 4, Sec. 33. Const 1963, art 5, Sec. 19. Thus, the Governor's veto of Enrolled HB 5453, Sec. 823, removed funding for those symphony orchestras which had received funds under the grant program entitled small arts organization support. See OAG, 1977-1978, No 5394, p 695, 696 (November 29, 1978).

A corollary question is by what amount the appropriation for arts grants in Enrolled HB 5453, Sec. 1, has been reduced as a result of the Governor's veto of Sec. 823 of that bill. From a fair reading of Sec. 823, it is clear that the Legislature intended to appropriate a sum not less than fifty percent of the amount provided to these orchestras in fiscal year 1986-1987 under the small arts organization support grant program. As stated above, the Legislature may not circumvent the Governor's veto power by using 'language' rather than a line item approach. Moreover, the minimum amount of this appropriation can easily be determined.

It is my opinion, in answer to your second question, that the Governor's veto of Enrolled 1988 HB 5453, Sec. 823, removed funding for those symphony orchestras which had received funds under the grant program entitled small arts organization support for the fiscal year 1986-1987. It is my further opinion that the appropriation for arts grants in 1988 PA 323, Sec. 1, was reduced by the aggregate amount equal to fifty percent of the amount provided to these orchestras in fiscal year 1986-1987 under that arts grant program.

Frank J. Kelley

Attorney General

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