(dissenting). The Legislature has enacted appropriation bills which' the Governor asserts to be in violation in many particulars of article VII of the new State Constitution. The controversy has been submitted to this court upon an agreed, statement of facts, under the provisions of the Civil Practice Act. (§§ 546-548.) The action is brought by the Attorney-General in the name of the People of the State of New York, to restrain the Comptroller from auditing vouchers or drawing his warrants for the funds made available by these bills, allowed by the Governor to become laws without action upon his part. It being asserted that portions of the laws are unconstitutional, a declaratory judgment is asked which wilU .determine as to the validity and constitutionality thereof.
The respective powers of the Executive and the Legislature under the provisions of the Constitution relative to the executive budget are involved. It is suggested in a general way by the Attorney-General that the executive budget provisions of the Constitution changed the law of appropriations so that now they originate with the Governor, aided by his department heads, and that the veto power in turn is transferred from the Governor to the Legislature. Upon the other hand, the defendant argues that the Legislature still is supreme, and that the change had to do only with the machinery and methods.
The budget provision of the Constitution was adopted first on November 8, 1927, and article IV-A became effective as to appropriations made beginning January 1, 1929. The department heads of the State government were required, on or before October 15, 1928, to submit to the Governor itemized estimates of appropriations to meet the financial needs of the respective departments (the Legislature and the Judiciary were exempted) and on or before the 15th of January next succeeding (1929), or in case of a newly-elected Governor, on or before the first day of February, the Governor was required to “ submit to the Legislature a budget containing 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 * * By section 3 of the article mentioned it was provided that “ 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 * * There is some change of phraseology in the executive budget provisions *124(Art. VII) in the Constitution effective January 1, 1939. Thereunder the head of each department of the State government (except the legislative and judiciary) is required to furnish the Governor estimates and information as to the requirements of his department, which the Governor is to submit to the appropriate committees of the Legislature; further, the Governor is required,' on or before February first in each year, to “ submit to the Legislature a budget containing a complete plan of expenditures proposed to be made before the close of the ensuing fiscal year and all moneys and revenues estimated to be available therefor, together with an explanation of the basis of such estimates and recommendations as to proposed legislation, if any, which he may deem necessary to provide moneys and revenues sufficient to meet, such proposed expenditures.” (The only substantial change is the omission of the requirements as to itemization of the executive budget.) At the time of submitting the budget to the Legislature, the Governor is required to submit (Art. VII, § 3) “a bill or bills containing all the proposed appropriations and reappropriations included in the budget and the proposed legislation, [It-is to be noted that itemization applies only to the executive budget] if any, recommended therein ” and, as also provided in the earlier Constitution (Art. IV-A, § 3), “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.” It is asserted by the plaintiff that the bill enacted by the 1939 Legislature and permitted to become a law without action by the Governor, violates the last quoted portion of the Constitution.
The General Appropriation Bill for the Department of Agriculture and Markets and the Governor’s Appropriation Bill for the same department were printed in the Attorney-General’s brief and referred to frequently by counsel on each side to illustrate the claims of the respective parties. I quote in part from the Governor’s bill:
“ DEPARTMENT OF AGRICULTURE AND MARKETS
For expenses of personal service in accordance with the following schedule................ 709,900 00
Schedule
Administration Commissioner of Agriculture and Markets (O. S.)................................. 12,000 00
*125Assistant Commissioner of Agriculture and Markets (N. S.)......................... 7,000 00
* * *
(These items are followed by similar personal service items covering ten pages.)
Salaries — temporary
Investigators at not to exceed $7 per day; assistants to inspectors at not to exceed $8 per day, and temporary service throughout the department......................... 7,000 00
Total of Schedule..................... 719,840 00
Less savings.......................... 9,940 00
Amount appropriated.................. 709,900 00
For expenses of maintenance and operation in accordance with the following schedule...... 1,130,100 00
Schedule
Traveling expense, of which not more than $2,000 may be used for travel outside the State...... 139,100 00
Commissioner of Agriculture and Markets, in lieu of all traveling expense................ 2,400 00
* * *
(These two items are followed by ten other items like ‘ General expense, 8,750.00/ ‘ Special supplies and expense, 5,250.00.’)
General charges
Bovine tuberculosis indemnities, including personal service and other expenses........... 200,000 00
Bangs’ disease indemnities, including personal service and other expenses................ 300,000 00
* * *
(These are followed by four other lump sum items aggregating $418,500.)
Total of schedule..................... 1,141,095 00
Less savings. ......................... 10,995 00
Amount appropriated.................. 1,130,100 00”
The aggregate of the two appropriations by the Governor was $1,840,000. Each of the items and schedules above quoted and described was eliminated in the Legislature’s General Appropriation Bill, which I quote:
*126“ DEPARTMENT OP AGRICULTURE AND MARKETS
For general expenses of maintenance and operation, including personal service, travel outside of State at not to exceed $2,500, the purchase or exchange of not to exceed ten automobiles at not to exceed $500 each and one automobile not to exceed $1,000 and commissioner in lieu of all travel expenses, $2,400................ 204,000 00
For general expenses of maintenance and operation, including personal service, for the following departmental activities:
Animal industry....................*........ 204,000 00
Plant industry, including disease and insect control...................................... 120,500 00
Control of Dutch Elm disease................. 92,000 00
Food control and inspection................... 398,500 00
Kosher law enforcement........_.............. 33,000 00
Farm products inspection..................... 53,500 00
Markets and marketing...................... 83,750 00
Weights and measures........................ 26,250 00
Dog licensing............................... 25,250 00
General charges
Bovine tuberculosis indemnities, including personal service and other expenses........... 200,000 00
Bang’s disease indemnities, including personal service and other expenses................ 300,000 00 ”
The Legislature asserts that its appropriations for the “ Department of Agriculture and Markets ” complied with the Constitution (Art. VII, § 4), that the two items of the Governor’s bill, one of $709,900, the other of $1,130,100, aggregating $1,840,000, were stricken out; thereafter the items quoted from the legislative bill, aggregating $1,740,750 (a saving of substantially $100,000), were added; that each was stated separately and distinctly from the original items of the bill, and referred to a single object or purpose. The added items of the bill were submitted to the Governor as being “ subject to his approval.” The Attorney-General argues that the Governor’s bill was altered in a manner not permitted by the Constitution (Art. VII, § 4). He also partially condemns lump sum appropriations, although the Governor’s proposed bill contains many of that type, some of which are, $200,000 for bovine tuberculosis indemnities “ including personal service and other expenses;” $300,000 for Bang’s disease indemnities “ including personal service and other expenses;” $57,000 for farm products inspection “ including personal service (of which not to exceed $500 may be used for travel outside the State);” $61,500 for disease and insect control “ including personal service;” $100,000 for control of *127Dutch elm disease “ including personal service;” $200,000 for the division of milk control “ including personal service and travel outside the State;” $304,916 for expense of maintenance and operation of the division of employment “ including personal service;” $250,000 for the expense of maintenance and operation of the labor relations board “ including personal service and travel outside of State.” Thus by practical construction by the Governor and the Legislature, it has been agreed that lump sum appropriations are valid. Authority for this view is found in the opinion in People v. Tremaine (252 N. Y. 27), at page 33: “ In the budget bill so submitted were many lump sum appropriations, not itemized, to the administrative departments. Although the budget must contain all the estimates of proposed expenditures ‘ clearly itemized ’ the Governor and the Legislature seem to be in accord in the view that the budget bill submitted by the Governor need not be itemized but that it may contain lump sum appropriations.” The Governor’s budget is a document, distinct from the accompanying bill, designed to outline plans for the expenditures recommended. A suggestion that the Governor and his department heads will not follow the budget to the extent permitted by the reduced amount appropriated is not to be entertained seriously.
Substantially all of the controversial provisions in the Legislature’s appropriation bill are similar to those presented in the Department of Agriculture and Markets appropriation. The only authority within this State on the subject is People v. Tremaine (supra). The opinion by Pound, J., concurred in by Cardozo, Ch. J., Lehman, Kellogg, O’Brien and Hubbs, JX, states (p. 38): “ Long and interesting is the history of the struggle between the Executive and the Legislature for the control of the public moneys. It is, however, so well settled that the State Legislature is supreme in all matters of appropriations that the recital of the details of the strife for legislative supremacy would serve no useful purpose,” and (p. 44) “ the power to itemize legislative appropriations is a legislative power which it may exercise if it sees fit as long as the matter is in its hands,” and (p. 49) “ the provision for a budget system is a new and complete article of the Constitution to be read in connection with all other provisions contained therein as the latest expression of the popular will. While it in no way limits the ultimate powers of the Legislature to make appropriations (Art. LV-A, § 4) it regulates the executive and legislative machinery and defines the method whereby appropriations shall be made.” Crane, X, in his concurring opinion says (p. 59): “ 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 *128one thing, however, it cannot do and that is implied, if not expressed in our Constitution. It cannot exercise the functions of the Executive.” The Legislature, by striking out items and adding others, has reduced the amount sought to be appropriated by millions of dollars. The control of appropriations by the Federal Congress and the State Legislature is plenary. It seems conceded that had the Legislature adopted a different procedure, its plenary power over appropriations, winch has always been recognized, could have been exercised. It is asserted that unconstitutional methods were used. Such a construction makes this constitutional provision a practice act rather than a statement of governmental powers. Under the construction contended for by the defendant the Governor retains his constitutional prerogative to veto the added appropriations, while items which he recommended and the Legislature approved became laws without further executive action.
The requests by department heads for ever-increasing appropriations and the resultant mounting cost of government are so well known that it seems improbable that the people of the State, by constitutional enactment, knowingly would place obstacles in the path of the Legislature which is seeking to reduce these amounts. When the Legislature appropriates in excess of the amount which the Governor believes necessary, he has the power to veto. If as asserted that power has been ineffective in the past to prevent unwise appropriations by the Legislature, it will not be more effective to reduce extravagant requests by departmental heads.
The Legislature complied with the executive budget provisions of the Constitution, and the taxpaying public should have the benefit of the reduced appropriations made. An appropriation bill designated by the shibboleth “ line by line ” is not here presented. Neither of the contesting parties has presented that type of an appropriation bill. Nothing in the Constitution required that the Governor’s proposed bill shall be itemized. Itemization is not required under the new Constitution, even as to the budget.
The addition of the following words, “ acquisition of land and/or construction of buildings incidental to highway construction, re-construction and maintenance,” incorporated by the Legislature in the appropriation for the construction and reconstruction of State highways, and sections 8 to 18, inclusive, in the “ general provisions,” both as inserted in the Governor’s bill and as altered by the Legislature, should be eliminated. This does not affect the validity of the appropriations. (People v. Tremaine, supra, p. 59.)
Crapser, J., concurs with Hill, P. J.
Judgment rendered in favor of the plaintiff, in accordance with the terms of the stipulation, without costs.