REQUESTED BY: Dear Senator Haberman:
In your letter of April 22, 1980, you advised us that you were considering legislation which would add a tax to support gasohol legislation. You then requested our opinion on the following question:
"If the bill and the A-bill accompanying same passes and then the bill is declared unconstitutional, does this also make the A-bill unconstitutional and thereby the tax cannot be collected or can the tax be collected and used for other purposes than those specified in the original bill?"
We assume that your references to the `A-bill' are intended to mean an appropriations bill that often accompanies substantive legislation. It appears to us, from the manner in which this question is posed, that you may have some misunderstanding about the relationship between a primary bill which provides legislative authorization to collect a tax, or conduct some government program, and an appropriations bill which simply allocates a certain amount of monies for the expenditures of government.
As we have noted in past opinions to members of the Nebraska State Legislature, an appropriations bill is separate and distinct from other substantive legislation. In other words, substantive matters like authorizing a tax to be collected, or defining the powers of government officials should not be included in an appropriations act. See 1975-1976 Report of Attorney General, No. 214 at p. 296, a copy of which is attached hereto.
In the example set forth in your letter, we would assume the primary bill would have provided the legislative authorization to collect a tax as well as some type of legislative direction as to the purpose of the act which is to be accomplished by the raising of such revenue. We would also assume that the `A-bill' would constitute an appropriation of the funds collected for expenditures during a specific time period. Consequently, if the primary bill were declared unconstitutional in totality, the accompanying appropriations bill would become, for all practical purposes, a nullity.
Relating this discussion to the specific question you presented, we would note that the authority to collect a tax would have to be provided for in the primary bill. Therefore, if that bill were found unconstitutional, the tax could not be collected.