I am in accord with the majority opinion except in so far as it impliedly approves the provision giving the Governor unlimited power to transfer money in the three emergency funds from one fund to another.
I recognize the necessity for an emergency fund since the Legislature cannot foresee in advance every minute detail of operation of the state government and the consequent necessity of an appropriation therefor. Past experience has disclosed the advisability of such a *Page 303 fund and the authorities cited in the opinion demonstrate that an appropriation of this character is in accord with settled practice in other jurisdictions.
But, while recognizing the advisability of such funds, it is my opinion that they should be scrutinized with great care. Certainly the Legislature has no power to authorize the Governor to expend a major portion of the state's revenues under the guise of an emergency fund.
It is my opinion, however, that the amount of the three emergency funds created are within legitimate bounds. I would have serious doubt as to the special emergency relief fund except for the construction placed on it in the majority opinion, limiting expenditures therefrom to authorized relief for which funds have not been appropriated elsewhere in the budget.
It is my opinion, however, that the clause granting the Governor power to transfer the money in the three funds from one fund to another is invalid. The practice of establishing emergency funds, unless restricted within narrow limits, will gradually tend towards constituting the Governor, rather than the Legislature, the real agency for the appropriation of the state's revenues. I think a legislative determination must be made as to the amount of an emergency fund and that when so made it must be adhered to. When this is done such a fund is an appropriation within the meaning of Section 230 of the Constitution prohibiting the withdrawal of any money from the state treasury except in pursuance of appropriations made by law but it seems to me that the transferability provision contained in the appropriation bill removes such a fund from the category of an appropriation.
Under this provision, if no expenditures were made from the two special emergency funds, the Governor would have at his disposal approximately $1,000,000 as a general emergency fund to be expended for any emergency he may determine requires its expenditure. Without expression of opinion as to whether a general emergency fund of this amount could be established, I am of the opinion that the transferability provision applicable to the emergency funds is invalid.
I am authorized to state that Judges Tilford and Ratliff concur in this opinion. *Page 304