The power of the Legislature over appropriations is plenary unless restricted by the State Constitution. It may not delegate its powers to make appropriations. It may not make a lump sum appropriation for the public needs and authorize one of its members to divide it up as necessity requires. This is simply making an appropriation; acting for the Legislature; a delegation of its *Page 53 powers to the individual. No one questions this. In such an instance it would be equally a delegation of power if the authority were given to a member of the Legislature or to one not a member of that body, an administrative officer. It is conceded by all in this case that segregation by an administrative officer of a lump sum appropriation made for his department, is not a delegation of legislative power. The Legislature makes an appropriation but may permit segregation, that is, the dividing it up among the positions by someone else. We may, therefore, dismiss this question of delegation of power as it is not in the case.
So too we may dismiss the question of the power of the Legislature to make its own segregation. It is conceded on all sides that the Legislature is not compelled to make a lump sum appropriation; in fact, the spirit and apparent intention of the budget amendment to the Constitution is that there shall be itemized appropriations. The best thing to do is to put the purpose in the appropriation and limit the expenditure to the amount of the appropriation for each item. The Governor and Legislature have apparently done this for the major part of the budget bill.
But it is also conceded that there are times when item appropriations would be almost impossible or impracticable, as in the case of the reorganization of an office, and lump sum appropriations are made. It is because of such instances that the Legislature and the Governor came to an impasse in 1929. May the Legislature, in making a lump sum appropriation, authorize, even with the consent of the Governor, that the lump sum appropriation shall be segregated by the Governor and a member of the Legislature? The appellants concede that it may be done by the Governor alone as segregation is not a delegation of legislative power. They say, however, that it may not be done with the aid of a member of the Legislature as this violates article III, section 7, of the *Page 54 Constitution, which reads: "No member of the Legislature shall receive any civil appointment within this State, or the Senate of the United States, from the Governor, the Governor and Senate, or from the Legislature, or from any city government, during the time for which he shall have been elected; and all such appointments and all votes given for any such member for any such office or appointment shall be void."
If the Legislature may not authorize one of its members to aid in segregation because violative of this provision of the Constitution, it, of course, could not do so, even with the consent of the Governor. Any bills so providing approved by him, would be illegal.
I do not concur in the opinion that a legislator so acting has taken an office or appointment within the prohibition above quoted. The member of the Legislature has not accepted another office, for he is not obliged to take a constitutional oath other than that which he had taken as a member of the Legislature. There is no permanency to such work. The appropriations are made only for one year. The reorganization of an office is supposed to take place as soon as the administrative incumbent takes office and segregation, therefore, is supposed to be a matter of immediate concern. When segregation is once made it is over with. The question of dividing the money appropriated among the various places to be created by the head of the department is a temporary act, an act incidental to the making of the appropriation, a mere detail of carrying out and effectuating the appropriation made. This work is a further step in applying an appropriation to the situation. It is temporary, incidental, and has none of the elements which go to make up an office or an appointment to an office, or, if we prefer, an appointment to a place of public trust. Assuming that the word "appointment" means something more than an appointment to an office, that is, that it means an appointment to a place of public *Page 55 trust, the cases have repeatedly held, and so have we recently, that an office or an appointment to a place of public trust means something of a permanent nature, something that has annexed to it a permanent duty; something not merely transient, occasional or incidental. A mere temporary exercise of power is not an office or an appointment. (Matter of Richardson, 247 N.Y. 401, and cases cited.) This duty of approving the segregation of certain sums given by the Legislature is a temporary duty and does not rise to the dignity of a place or an office. Personally I am of the opinion that article III, section 7, applies to an office; the Legislature cannot take any other office. The word "appointment" is synonymous with office. In Lincoln's Constitutional History of New York, volume 4, page 358, the author says: "The power prohibited by the section is political, and relates only to qualifications for office." (See Stewart v.Mayor, 15 App. Div. 548.)
I do not agree with the suggestion or statement in the opinion that the word "appointment" in this section of the Constitution has the same meaning as the words "public trust" in section 19 of article VI of that document. This latter provision reads: "The judges of the Court of Appeals and the justices of the Supreme Court shall not hold any other public office or trust." Place alongside these words those of section 7 of article III, "no member of the Legislature shall receive any civil appointment within this State," it is clear to see that "civil appointment" means less, much less, than "public trust." An appointment is a designation to an office; there may be a public trust or duty not amounting to an office. (See Matter of Richardson, supra.) The reason for the difference is apparent. A judge shall take no other public trust because he has sufficient to do to serve as a judge. His duties should be confined to his judicial work — he should be single minded. The provision regarding the Legislature was to prevent that body from creating *Page 56 offices and filling them with its own members as had theretofore been the practice. (See Lincoln's Constitutional History,supra.)
I, therefore, cannot follow the determination upon this point. For over a century this has been the view of the law as the Constitution of 1821 contained a similar restriction. Nor can I appreciate the distinction drawn between public trust or appointment and a private trust or appointment. I do not know how the Legislature can appoint a member to a private trust. Appropriations are made by the State to Cornell University and to the University of Syracuse. On the board of said institutions are members of the Legislature by virtue of chapter 585, Laws of 1865, and chapter 339, Laws of 1913 — the object being no doubt to watch the expenditure of public moneys. How is this a private trust? When the member of the board is thus designated by law, it is a public trust, or else the Legislature has no power to deal with it. It is a private trust for those not sitting by designation under some specific law. The Legislature cannot give away public moneys. (Article VII, section 1, Constitution of New York; People v. Westchester County National Bank, 231 N.Y. 465. ) The legislators sit on these boards spending the public money because the duties are incidental to the appropriations and the duties of the Legislature. (Const. art. VIII, § 9.)
I agree, however, to the conclusion reached by my associate but upon a different ground, which briefly is that when a member of the Legislature is clothed with the duty of segregating lump sum appropriations he ceases to act as a legislator and is performing executive duties, administrative functions which under our form of government is illegal. The importance of maintaining the independence of the three departments of our republican form of government has often been stated and, as occasion arose, enforced by the courts. The only instances that I know of in which the duties of the *Page 57 executive, legislative or judicial branches of the government have overlapped or merged imperceptibly into the field or domain of the other is when the work or duty assumed has been of necessity and almost by common consent incidental to and part of the duties cast upon the particular department of government. The Legislature makes investigations, summons witnesses and holds hearings, acts at times like a court for the purpose of enabling it to form legislation for the future. The Judiciary makes rulings which have the form and force of statutory laws and enactments; makes appointments to office, duties which border upon the legislative. And the Executive makes rulings and decisions, at times executive orders, and in some cases holds hearings, with power of investigation which somewhat encroaches upon the field of the Legislature and the Judiciary.
In Springer v. Philippine Islands (277 U.S. 189) Mr. Justice HOLMES, in his dissent, was of the opinion that we could not divide our branches of government into watertight compartments. I am sure nobody disagrees with him and yet the principle still remains and was enunciated in that case that the Legislature cannot become an administrative body or, through its members or committees, perform the work of the Executive or the Judiciary. There is a time when the duties must be kept separate and apart in order that our form of government may be preserved. The doubtful cases make the trouble; the small beginnings and encroachments create the danger. Everyone becomes alarmed at open usurpation and we need fear no such occasion. Rather should we be alive to the imperceptible but gradual increase in the assumption of power properly belonging to another department. Such is this case. The principles are fully set forth and explained in such cases as Springer v. Philippine Islands (supra); Kilbourn v. Thompson (103 U.S. 168); Hampton Co. v. United States (276 U.S. 394); Matter of Davies (168 N.Y. 89) and Matter of *Page 58 Richardson (supra) and it remains merely for us to apply them here. The questions are determined by common sense and the inherent necessity of governmental co-ordination. (Hampton Co. v. United States, supra.)
In my judgment, the Legislature has attempted to place the administrative work of supervising an administrative office upon a member of the Legislature, giving to him powers which he was not elected to assume. That the Legislature is supreme in the matter of making appropriations and controlling the revenue is a fundamental of government. This control no one challenges. The question is whether, after having made an appropriation, having authorized an expenditure, the Legislature can follow it up and through a committee or a single member aid or control the manner in which the appropriation shall be disbursed. In the instances before us the Legislature has appropriated millions of dollars and yet restricted its expenditures to an approval by two of its members. This approval must be obtained before the lump sum appropriation is segregated, which means, of course, that these legislators have a control and a power over the administrative office or officer to whom the appropriation or for whom the appropriation has been made. These legislators must be consulted and their consent obtained as to the number of employees or the amount of expenditure for supplies or other matters that may be requisite for the doing of the work. The legislator thereupon in reality becomes a part of the administrative office; he functions as an administrator responsible for the due performance of the work. Performance of administrative work depends upon help. The kind and nature of the help, or, in other words, the efficiency required for the performance of the work, rests with the approval or disapproval of these members of the Legislature.
The power is immense and in its full exercise may be so arbitrary as to make the Legislature, through its *Page 59 committees or its single member, control every executive department. In reading what I say care should be taken to note that this carries no reflection whatever upon the members of the Legislature who, beyond doubt, have heretofore exercised this power of segregation with care, with wisdom, with desire for the public weal, and without any abuse. In fact there is no suggestion in the briefs of learned counsel for the appellant that the Legislature has exercised this power of segregation for any selfish purposes. We are dealing, however, with a question of power, with the thing which may be done in the hands of arbitrary men. It seems too plain for words that such control, softly phrased by the word "approval," carries with it the power to run the office.
We need not draw upon our imagination, rather turn to recollection. The past is only valuable for the lessons which it teaches. All of us know from experience that he who has control of the spending of the money, when the money is there to spend, exercises real power for good or for ill.
Personally I can see no escape from the position that the Legislature has absolute control over appropriations. It may make appropriations also upon such conditions and with such restrictions as it pleases. It can create or limit the power of administrative offices. There is one thing, however, it cannot do and that is implied, if not expressed in our Constitution. It cannot exercise the functions of the Executive. It cannot administer the money after it has been once appropriated. If it makes lump sum appropriations, whatever conditions it may attach to its expenditure, it cannot make one of those conditions the approval by one of its own members; that is, to confer upon him the duties of an administrative office. Therefore, while I differ with my learned brother as to his reasons, I arrive at the same conclusion. The duty of the approval to segregation of the various sums appropriated required by the Legislature is not the *Page 60 appointment to an office within the prohibition of section 7 of article III of the Constitution. It is, however, equally illegal by attempting to clothe members of the Legislature with administrative functions after an appropriation has been made.
There are also other reasons for reversing the judgment below in its principal features. In adopting the amendment to the Constitution now known as the executive budget, it appears to me that there was an attempt made in article IV-A of the State Constitution to provide a new method, given in much detail, for the making of appropriations for the various departments of government. Whatever may have been done before, new methods were to be pursued upon the adoption of this amendment; laws in force at the time fell by the way — the Constitution was to override all of the laws and start with a clean sheet. Thus we find that the head of each department of State government, except the Legislature and the Judiciary, shall submit to the Governor itemized estimates of appropriations to meet the financial needs of such department, including a statement in detail of all moneys for which any general or special appropriation is desired from the Legislature. These shall be classified according to relative importance, and in such form as to give all the information the Governor may require. Copies of these estimates should be simultaneously furnished to the designated representatives of the appropriate committees of the Legislature for their information. On these proposed estimates, the Governor is to have a hearing, to which he shall invite the committees of the Legislature to attend. These representatives of the Legislature shall be entitled to make inquiry in respect to the estimates and the revision thereof. Up to this point, therefore, what do we have? The needs of the various departments are thoroughly examined into by the Governor and by the Legislature so that when the budget goes to the Legislature, no further inquiry need be made. All information *Page 61 will have been obtained that is necessary, if the committees appointed to investigate do their work thoroughly. This is the purpose and object to be accomplished by this provision of the Constitution. (Report of Reorganization Commission, February 26, 1926.) After all this information has been acquired, sifted, details gone into, the Governor makes up his budget, which will contain a complete plan of proposed expenditures and estimated revenues; "it shall contain all the estimates so revised or certified and clearly itemized, and shall be accompanied by a bill or bills for all proposed appropriations and reappropriations." (Art. IV-A, § 2.) When the Legislature gets this bill what can it do with it? The Constitution is very specific. It supposes, as I have said, that the appropriation bill contains items, not lump sums, and that the items of appropriation follow the items of the budget as submitted. The Constitution then provides what the Legislature may do with this budget bill. The Legislature may require the heads of the departments to appear and be heard in respect to the proposed budget and then the Legislature "may not alter an appropriation bill submitted by the Governor except to strike out or reduce items therein, but it may add thereto items of appropriation provided that such additions are stated separately and distinctly from the original items of the bill and refer each to a single object or purpose." (Art. IV-A, § 3.) The Legislature, therefore, to repeat these words, may strike out an item. The appropriation bill is to be made up of items. Estimates of appropriation, referred to in section 1 of article IV-A, are to be itemized; the budget bill is supposed to be itemized. The Legislature may reduce an item, which means, of course, reduce the amount requested. It may also add items of appropriation which means providing money for a certain purpose; the purpose is to be stated separately and distinctly from the original items of the bill, each item referring to a single object or purpose. The whole scheme, therefore, as it appears to *Page 62 me, is this — the proposed appropriation in the budget bill shall be itemized, which means a certain amount of money shall be asked for certain places or certain purposes. The Legislature may strike out an item, it may reduce an item, or it may make another item appropriation, that is, give money for a certain specified purpose, the money appropriation being for one purpose or one item only. There is no limit as to the number of these items of appropriation which the Legislature may propose to the Governor, but they must be items of appropriation, each item specifying the object or purpose for which the money is provided. So important was this new method adopted by this constitutional amendment, that if the Legislature passed the budget bill as proposed by the Governor, it did not have to be submitted to him for his approval; it became a law upon passing the Legislature. The idea was that all difficulties and disagreements would be ironed out in the preliminary hearings before the Governor and the Legislature committeemen. Separate items, however, added to the Governor's bill by the Legislature, in the manner indicated by me, had to be submitted in the usual form for his approval.
Certain things seem quite clear to me, and one is that in view of this constitutional amendment, section 139 of the State Finance Law had no further application to the budget bill. It did not touch and could not affect the appropriation thus made. If, for the purpose of reorganizing a department, certain lump sum appropriations were made instead of item appropriations, the segregation was to be made by the department receiving the appropriation and not by the method provided in section 139 of the State Finance Law. The budget bill as passed was to be and must be complete in itself, without reference to any other law.
The lump sum appropriations, therefore, for the Department of Law, passed by the Legislature and approved by the Governor April 12, 1929, have full force *Page 63 and effect as appropriations for that department, to which section 139 of the State Finance Law has no application. The head of the department is to segregate the amount of the appropriation in accordance with his reorganization plans and requirements.
The appropriation for the Department of Labor of the lump sum of $2,700,000, approved by the Governor April 12, 1929, stands by itself. This sum is to be segregated by the head of that department. Section 139 of the State Finance Law has no application. In so far as the Governor stated in his approval of the appropriations that section 139 was not applicable he was correct.
Various items of appropriation were made for the construction of State works and buildings. The Legislature struck out the items and resubmitted the same items of appropriation, adding, however, a section known as section 11, reading as follows:
"§ 11. No part of any appropriation made by this act for construction shall be expended for personal service except on the approval of the governor, the chairman of the senate finance committee and the chairman of the assembly ways and means committee. This provision may be complied with by the filing with the comptroller and the department of civil service of a list of the positions so approved and the time for which any person may be employed in such position. This provision, however, shall not apply to personal service employed by a contractor, by an institution on construction work done under special fund estimate, by an interstate commission, or on highways."
These appropriations stand as passed by the Legislature, approved by the Governor, but section 11 has no force or effect whatever; it is not an item of appropriation within the meaning of the Constitution as above explained. If anything, it is an attempted alteration, which is void, according to the terms of that instrument.
The item of $17,800 in the supplemental budget of *Page 64 the Department of Public Works for expert and temporary service falls because the item, as submitted by the Legislature with its segregation clause, was vetoed by the Governor. The same applies to the item of $100,000 for furnishings and equipment for the new State building, because this also was an item submitted and vetoed by the Governor.
The Laws of 1929, chapter 93, authorizing the creation of a State debt and making an appropriation for the construction of State buildings and the items thereof providing for the issuance of State bonds, all to be expended under the direction of the Office Site and Building Commission, as created by the Laws of 1926, chapter 5, and authorizing the transfer of funds, is more than a provision for incidental and temporary duties. Chapter 5 of the Laws of 1926 creates a Commission to consist of the Governor, Superintendent of Public Works, State Architect, Temporary President of the Senate, the Speaker of the Assembly, the Chairman of the Senate Finance Committee and the Chairman of the Ways and Means Committee of the Assembly. The Commission is to be known as the State Office Site and Building Commission. The act provides for the construction, through this Commission, of an office building in Albany. A member of the Legislature serving on such a Commission has never been deemed, in the history of the State, to hold an office or appointment separate and distinct from that of a legislator. His duties on such a Commission are temporary and incidental to the work of the Legislature. Such duties do not rise to the level of an office or an appointment within the meaning of section 7 of article III of the State Constitution. This present Commission, however, as supplemented by chapter 93 of the Laws of 1929, covers more than one object and appears to be one of a permanent nature, extending its powers over many cities and the erection of public buildings therein. The authorization contained in section 14 of chapter 93 of the Laws of 1929 is so broad and extensive as, in my *Page 65 judgment, to bring it within the classification of an appointment within the meaning of the Constitution as heretofore defined and explained.
The point, however, to be applied is this, appropriations made by the Legislature in lump sums are to be segregated by the heads of the departments. Section 139 of the State Finance Law does not apply. The other item appropriation bills stand as legal appropriations, section 11 attached thereto being void. The new items submitted to the Governor, which were in fact new items, referring to but one appropriation and giving but one amount, vetoed by the Governor in part, were vetoed in toto The Governor cannot veto part of an item.
I am for reversal but upon the grounds I have above stated.
CARDOZO, Ch. J., LEHMAN, KELLOGG, O'BRIEN and HUBBS, JJ., concur with POUND, J.; CRANE, J., concurs in result in separate opinion.
Judgment reversed, etc.