Thomas v. Rosen

BOOCHEVER, Chief Justice,

dissenting.

The Alaska Constitution, art. II, sec. 15 says in part that the governor “may, by veto, strike or reduce items in appropriations bills.” The question is thus presented as to whether Chap. 124 SLA 1976 constitutes an appropriation so as to be subject to this provision.

The constitutional convention sheds little light on the subject. It is apparent that the delegates never foresaw the problems involved in definition of “appropriation” or the interaction between the debt financing provision (art. IX, sec. 8) and the gubernatorial veto section (art. II, sec. 15).1

*798The definition of appropriations set out in Black’s Law Dictionary is:

The act by which the legislative department of government designates a particular fund, or sets apart a specified portion of the public revenue or of the money in the public treasury, to be applied to some general object of governmental expenditure, or to some individual purchase or expense. . . . Authority given by Legislature to proper officers to apply distinctly specified sum from designated fund out of treasury in given year for specified object or demand against state.2

Looking to the bill itself, it is abundantly clear that two appropriations are specified and that there is also an obligation to make a third and future appropriation. Sec. 3 provides:

If the issuance of these bonds is authorized by the qualified voters of the state, the amount of $24,850 or as much of that amount as is found necessary, is appropriated from the general fund of the state to the state bond committee to carry out the provisions of this Act and to pay expenses incident to the sale and issuance of the bonds authorized in this Act. (emphasis added)

The second appropriation is found in sec. 2:

If the issuance of these bonds is authorized by the qualified voters of the state, a specific fund of the state to be known as the “Regional Fire Fighting Training Centers Bond Fund” shall be established, to which shall be credited proceeds of the sale of the bonds described in Sec. 1 of this Act except for the accrued interest and premiums. There is appropriated from the “Regional Fire Fighting Training Centers Bond Fund” to the Department of Education the amount of $7,100,-000. The proceeds of these bonds shall be allocated as follows:

(1) full service Anchorage $2,300,000 centers: Fairbanks 2,300,000

(2) limited service Juneau 1,500,000 centers: Kotzebue 500,000 Bethel 500,000

(emphasis added)

An obligation to make a future third appropriation is found in sec. 1, authorizing the issuance and sale of the bonds and pledging the “full faith, credit and resources of the state” to pay them when they fall due. The legislature is actually pledging that it or future legislators will include debt service for the bonds in future budgets.

Because there are at least two appropriations clearly stated in the bill — one to the Department of Education and one to the state Bond Committee — I believe that in those respects, the bill must be considered an appropriations bill for purposes of art. II, sec. 15.

*799If the legislature so desired, it could separate the bond authorization bill from the bill appropriating funds, thus avoiding the problem here presented. A bill could authorize the incurrence of indebtedness and provide for voter ratification. After ratification occurred, a separate bill could provide the appropriation. This was the method used in issuing the first bonds after statehood.3 At the time of authorizing the indebtedness, the legislature could, by that means, avoid the applicability of the governor’s powers to strike or reduce items in appropriation bills. Yet the governor’s powers would be preserved at the time of the separate enactment of an appropriation bill.

While art. II, sec. 13 generally requires that bills containing appropriations be confined to appropriations, I believe that the legislature has the power to include qualifications or restrictions in an appropriation bill. Here the bond authorization and the appropriation are so entwined that I do not believe that the requirement of art. II, sec. 13 is violated.4 Extensive discussion is not now required on this point, as it was not reached by the majority opinion.

. One delegate approached the problem, but his reasoning was never made explicit. During the discussion on debt financing, the following exchange occurred:

PRESIDENT EGAN: Would the Chief Clerk please read that sentence in Section 8 as it would read if the amendment was adopted.
CHIEF CLERK: “No state debt shall be contracted unless authorized for capital improvements by law with ratification by a majority of the qualified voters of the state who vote on the question.”
PRESIDENT EGAN: The question is “Shall the proposed amendment be adopted by the Convention?” Mr. Londberg.
LONDBERG: I would like to ask one question regarding this. If the governor vetoes *798this, would that necessitate three-fourths to override that on appropriations?
UNIDENTIFIED DELEGATE: No.

On the other hand, the convention did indicate several times a desire to have the governor be an active participant in the approval of debt financing. When the rudimentary form of art. IX, sec. 8 read “no debt shall be contracted . unless the debt shall be authorized by a majority vote in each house of the legislature” (emphasis added), an amendment was offered to change the qualification to “no debt shall be contracted . unless authorized by law” (emphasis added). One delegate noted that in the original form the sentence could be thought to mean “without the approval of the governor.” He added, “That, of course, was never our intent in the first place.”

The following exchange also took place:

BUCKALEW: One question before we vote on this ... I just thought of it this minute, that would indicate approval by the governor, but I don’t know what this means — whether the governor has to approve or not . . .
F. RIVERS: If I may help Mr. President — the usual process of making laws includes the approval by the governor or it becomes a law without his approval. So, when you say “by law,” you take in all those steps. The way it was before, though, it might have been argued that you meant to exclude the governor, so I think this improves matters.

. Black’s Law Dictionary, 131 (4th ed. rev. 1968). See State ex rel. Murray v. Carter, 167 Okl. 473, 30 P.2d 700, 702 (Okl.1934). In Fuselier v. State Market Commission, 259 La. 185, 249 So.2d 569, 579 (1971), the Louisiana Supreme Court found a bonding authorization bill to constitute an appropriation for purposes of a state constitution article reading “No money shall be drawn from the treasury except in pursuance of specific appropriations made by law.”

. See Chapters 169-174 SLA 1960. The 1960 bills did make appropriations to cover administration expenses, although that, also, could have been taken care of by a separate bill.

. See Weldin v. Ray, 229 N.W.2d 706 (Iowa 1975); Opinion of the Justices, 306 A.2d 720 (Del.1973); State v. Bond, 495 S.W.2d 385 (Mo.1973); Opinion to the Governor, 239 So.2d 1 (Fla.1970).