Coffee v. Henry

KAUGER, J.,

concurring:

¶1 I fully coneur with the majority. It holds that every bill making appropriations is subject to the Governor's line-item veto. Although our previous cases may not be written in the clearest language, when they are clearly analyzed there is no question that the Governor vetoed appropriation bills.

¶2 However, there is another rationale for reaching this conclusion. Because H.B. 2286 and S.B. 1828 supplement and amend appropriations made in the general appropriations bill HB 2276, the appropriations were incorporated into the subsequent bills, thus subjecting them to the Governor's line-item veto. In Opinion of the Justices to the Governor, 373 Mass. 911, 370 N.E.2d 1350 (1977), the State of Massachusetts reached the same result in a similar case. The opinion provides at p. 1352:

Each new item sets apart from the public revenue a certain sum of money for a specified object, in such manner that the executive officers of the government are authorized to use that money, and no more, for that object and for no other. It is therefore an appropriation.... The Legislature cannot narrow the Governor's power to disapprove such an item by stating it in words and phrases rather than in figures.
If the Governor could not veto such a new item the way would be open for evasion of the item veto by a two-step process. The Legislature could first make a noncontroversial appropriation. Once that was enacted, it could then insert the controversial restriction as a separate section in an essential supplementary appropriations bill.1
(Citations omitted.)

This should be the end of the discussion. However, I am compelled to write further to address our precedents.

¶3 Here's what happened. On April 29, 2008, the Governor of the State of Oklahoma approved House Bill No. 2276, a general appropriation bill which appropriated money for the expenses of various agencies of the executive, legislative, and judicial departments of the state. Included in the money appropriated by H.B. No. 2276 were appropriations to the Ethics Commission and the Department of Corrections.2 Subsequently, the Legislature, in House Bill 2286 and Senate Bill 1823, sought to define the object of the appropriation by purporting to impose detailed constraints regarding the funds previously appropriated by H.B. 2276.

*1059¶4 The Governor vetoed the legislative mandate within H.B. 2286 for the Ethics Commission which required it to use a specified amount of its appropriation to purchase particular computer software, and he vetoed the legislative mandate within S.B. 1828 for the Department of Corrections to "budget" specified amounts of its appropriation for delineated purposes. The petitioners, the President Pro Tempore of the Senate and the Speaker of the House, brought this original proceeding in this Court to challenge the Governor's ability to exercise such a line-item veto.

¶5 The Petitioners argue that H.B. 2286 and S.B. 1823 are not appropriation bills subject to the Governor's veto authority as provided by the Oklahoma Constitution art. 6, § 12 which provides:

Every bill passed by the Legislature, making appropriations of money embracing distinct items, shall, before it becomes a law, be presented to the Governor; if he disapproves the bill, or any item, or appropriation therein contained, he shall communicate such disapproval, with his reasons therefor, to the house in which the bill shall have originated, but all items not disapproved shall have the force and effect of law according to the original provisions of the bill. Any item or items so disapproved shall be void, unless repassed by a two-thirds vote, according to the rules and limitations prescribed in the preceding seetion in reference to other bills: Provided, That this section shall not relieve emergency bills of the requirement of the three-fourths vote.

This provision involves the Governor's authority to line-item veto "appropriations of money embracing distinet items." Over 100 years after the enactment of this Constitutional provision, the Court still cannot unanimously agree upon what an appropriation of money embracing distinct items means-perhaps because the definition seems so simple. The Constitution does not define "appropriation," but according to the dictionary it means "money set aside as for a specific purpose."3 The Legislature has adopted the same definition. It defines "appropriation" as "a legislative allocation of funds for a specific purpose." 4

¶6 The precise question is whether two bills which add conditions and restrictions for the expenditure of funds previously generally appropriated meet that definition; the majority concludes that it does. Why? Because the bills supplement the original general appropriation bill and govern the payment of funds on the items they embrace-thus coming within the term "every appropriation." To construe these measures any other way would defy what the framers of the Oklahoma Constitution were attempting-to provide a classic system of checks and balances for the expenditures of public funds.

¶ 7 The only way to sort this out is to start at the very beginning. The Oklahoma Constitution art. 5, § 55 also uses the words "appropriation by law."5 In 1910, the syllabus of Court in Menefee v. Askew, 1910 OK 47, 25 Okla. 623, 107 P. 159, first defined 6 "appropriation" as:

*10601. STATE FINANCE-"Appropriation." An "appropriation" in this state is an authority of the Legislature, given at the proper time and in legal form to the proper officers, to apply a distinctly specified sum, from a designated fund out of the treasury in a given year, for a specified object or demand against the state.

In other words: money set aside (by the Legislature) for a specific purpose. Here, the Legislature set aside money for the Department of Corrections to use in a particular year, and it set aside money for the Ethics Commission to use for computer software only.

¶ 8 The second syllabus of Menefee is particularly helpful. It provides:

2. STATE FINANCE-Appropriation-Form. No arbitrary form of expression or particular words are required by the Constitution in making an appropriation, which may be made by implication when the language employed reasonably leads to the belief that such was the intention of the Legislature. (Emphasis supplied.)

The Okla. Const. art. 6, § 12 is an exception to the Governor's veto power, and the Mene-fee Court recognized that there may be attempts by future Legislatures to bypass the Governor's ability to line-item veto by artfully crafting legislation that, at first glance, may not appear to be an express appropriation of any funds.

¶ 9 The exception to the rule is what this is all about. It is the exact situation which the Menefee Court foresaw. The legislation at issue appropriated funds and then added conditions and restrictions to the expenditure of the funds. Taken collectively, the legislation reasonably leads one to the finding that the intention of the Legislature was to make an appropriation, but carefully bypass the Governor's ability to line-item veto by splitting the appropriation into multiple bills. In fact, as the language in Menefee shows, Menefee actually supports this conclusion.

¶ 10 However, Menefee alone is not dispos-itive, because it involved a direct, specific, sum-certain appropriation for the salary of the Game and Fish Warden. Nor is Meyer v. Cliff, 1912 OK 201, 31 Okla. 798, 123 P. 1042, dispositive.7 In Meyer, the legislature merely specified what a stenographer for the district court should be paid by the county treasury. The Court, relying on Menefee v. Askew, 1910 OK 47, 25 Okla. 623, 107 P. 159, held that the statute neglected to make any appropriation for salaries, just as portions of the statute in Mengfee which had designated unspecified amounts to be paid as reimbursements for expenses were struck down because they didn't "allocate" a sum-certain. Nevertheless, the teachings of Menefee, in its entirety, apply.

¶ 11 In 1911, the Court decided Regents of State University v. Trapp, 1911 OK 62, 28 Okla. 83, 113 P. 910, which involved, for the first time, a challenge to the Governor's authority to line-item veto pursuant to art. 6, § 128 Dicta in Trapp suggests that when the Legislature enacts legislation-including one section of the bill which appropriates a specified sum to a University and another section of the same bill apportioning the appropriated money in a specified way-the second section is not an "appropriation" in which the Governor may approve in part, disapprove in part or direct how the funds shall be apportioned. A similar situation was presented in Carter v. Rathburn, 1922 OK 105, 85 Okla. 251, 209 P. 944, where the Court considered the Governor's act in disapproving a portion of a bill which appropriated $1500.00 for salary for a clerk in the State Examiner's office and the very next day, attempted to approve the bill as to all items except those "specifically marked disapproved."

In actuality, both Trapp and Rath-burn involve the question of the timeliness of the Governors' actions. The fact that these cases stand for this and for nothing else was *1061expressly and clearly pointed out by the Court in Peebly v. Childers, 1923 OK 595, 95 Okla. 40, 217 P. 1049. When counsel in Peebly argued that Trapp's holding governed the Governor's actions regarding line-item vetoes, the Court said "[wle are wholly unable to agree with the conclusion reached by counsel as to the controlling effect of the Trapp Case. We think that when the opinion in the Trapp Case is carefully analyzed and rightly understood, it furnishes a precedent against rather than in favor of counsel's contention." This same language is applicable here.

¶ 13 Unfortunately, the rationale of Peebly or its holding is of little help because it involved a Governor who went through a bill and reduced dollar amounts rather than disapproving them in toto. The Peebly Court held that the Governor was required to disapprove objectionable items in foto, rather than merely approve parts and disapprove parts by changing the dollar amounts-this is not what happened here.9

¶ 14 The Court reaffirmed the teaching of Menefee, supra, when it recognized again in Riley v. Carter, 1983 OK 448, 165 Okla. 262, 25 P.2d 666, that "[t}his state is committed to the rule that no particular words need be used in making an appropriation, and that an appropriation may be implied where the language used reasonably leads to the conclusion that such was the intention of employment of those words." It recognized this teaching because it held that an "appropriation by law" as used in the Constitution is not limited to Legislative appropriations, but constitutional appropriations as well.

¶15 Another interesting case is State ex rel. Murray v. Carter, 1934 OK 132, 167 Okla. 473, 30 P.2d 700, a case involving the State Auditor's refusal to pay funds authorized by the State Board of Public Affairs because the funds were paid pursuant to a statute that transferred funds based upon a conditional event and upon the Governor's approval. The Auditor argued that the Legislature exceeded its authority by making items of appropriation in an institutional appropriation bill dependent on the existence of a fact happening or taking effect in the future. The Murray Court, in discussing the legislation, looked at five non-exclusive factors which indicated whether the legislation was an appropriation under art. 5, § 55 of the Oklahoma Constitution and whether the State Auditor had to pay the funds.10

¶ 16 This is an entirely different issue than the one before us-whether the Governor's action exceeded his authority to line-item veto "appropriations of money embracing distinct items." Rather, the proper analysis to resolve this question can be found in Edwards v. Childers, 1924 OK 652, 102 Okla. 158, 228 P. 472, and its progeny. Edwards involved similar legislation, which at first glance did not appear to qualify as an appropriation. In 19283, the Legislature levied a tax of two and one-half cents a gallon to place in a special "State Highway Construetion and Maintenance Fund." It also created a commission to oversee the fund and directed how that money would be expended for repair, maintenance, and building of new highways. The legislation was challenged as not qualifying as an appropriation because it did not distinctly specify the sum appropriated and the object to which it was to be used.

¶17 The Edwards Court concluded that the challenged legislation qualified as an appropriation because it created a special fund, appropriated and directed it to be expended for a special purpose and in an express manner, and the amounts to be appropriated were the entire fund. In short, the fund was capable of being mathematically calculated. The Court again recognized that no arbitrary form of expression or particular words were required in making an appropriation, but that it could be made by implication, when the language employed reasonably leads to the belief that such was the intent of the Legislature. In Edwards, it was apparent *1062that the Legislature, through the language of the statutes, intended to set apart money from this specially created fund for the sole use of the department for the construction and maintenance of state highways. In other words, the Legislature quite clearly set aside money for a specific purpose.11

¶18 It is, however, the teachings rather than the facts of Edwards which are particularly helpful. Im re Initiative Petition No. 332, 1989 OK 93, ¶¶11-13, 776 P.2d 556 further explains Edwards:

The main teaching of Edwards, which is the foundation upon which it is based and upon which it distinguishes Menefee, is the fundamental and absolute division of governmental power, and the exclusion of the executive from the appropriation and disbursement of public funds.
112 As a matter of historical perspective, the Court in Edwards observed that the provisions of art. 5, § 55 exist to curb the power of the monarch to save the people from the prodigality of the King.12
13 The Court observed that an appropriation of public funds to a department of state does not conflict with the specific sum requirement if it leaves no power in the department to use or expand any funds except as the lawmakers reviewed, considered and thereafter determined to allocate.

The concept upon which both of these cases rely is the notion that an "appropriation" is akin to that which is defined in the dictionary [money set aside for a specific purpose] or by the Legislature [a legislative allocation of funds for a specific purposel.

¶19 The Court further addresses this subject of improper delegation of the legislative appropriation process in Wells v. Childers, 1945 OK 365, 196 Okla. 353, 165 P.2d 371 at ¶ 36:

[GJubernatorially created objects of expenditures would constitute an appropriation, a function exclusively legislative. As a matter of fundamental principle, the Legislature may not create any fund, designate it an appropriation, and delegate determination of the objects of expenditure to any executive or administrative officer at his discretion. So to do not only would violate the Constitution (art. 5, § 55), requiring the distinct specification of the object to which it may be applied; additionally, such legislative authority sought to be delegated would violate section 1, art. 4, Constitution, by which the government is divided into three separate and distinct departments and in which it is provided that neither shall exercise the powers properly belonging to either of the others.

¶20 The rationale of Edwards, supra, In re Initiative Petition No. $82, supra, and Wells, supra, is applicable. When it is clear from the questioned legislation that the intent of the Legislature was to set aside money for a specified purpose, and that it is not an attempt by the Legislature to delegate to another branch the ability to allocate an unspecified sum of money for a unspecified, discretionary purpose, the measure qualifies as an appropriation. Here, S.B. 2286 set *1063aside the funds previously appropriated in H.B. 2276 to be used for budgeting for Fiscal year 2009 or 2010. HB. 2286 set aside $50,000.00 of the funds previously appropriat ed by H.B. 2276 to be used to purchase computer software. Clearly both bills set aside dollars to be used for a specific purpose-each qualifying as an appropriation. Because each qualifies as such, the provisions of Section 12, art. 6 of our Constitution 13 provide the Governor with line-item veto authority.

CONCLUSION

¶21 It is well-settled that no particular words are required by the Constitution in making an appropriation. It may be made by implication, when the language employed reasonably leads to the belief that such was the intention of the Legislature.14 This is illustrated in our recent case of Fent v. State ex rel. Office of State Finance, 2008 OK 2, ¶17, 184 P.3d 467 when we said:

Even though drafted in terms of "transferring" and "allocating," H.B. 1105 unmistakably appropriates nearly 185 Million Dollars from the General Revenue Fund. It is an appropriation bill, and it must satisfy the requirements of an appropriation law set out in art. V, §§ 55 and 56 of the Oklahoma Constitution.15

An appropriation may also be made by an amendment to an existing bill"16 The questioned legislation does not appear to be an attempt by the Legislature to expand to another branch the power to use or expend any funds except those which the lawmakers allocated and considered and required to be expended for a specified purpose. Consequently, these measures also qualify as an allocation, subject to the provisions of art. 6, § 12 of our Constitution.17

T 22 These are the facts.18 In House Bill 2286 and Senate Bill 1823, the Legislature sought to define the object of the appropriation by purporting to impose detailed constraints regarding the funds previously appropriated by H.B. 2276 by amending the bill. The Governor vetoed the legislative mandate within HB. 2286 for the Ethics Commission which required it to use a specified amount of its appropriation to purchase particular computer software, and he also vetoed the legislative mandate within S.B. 1823 for the Department of Corrections to "budget" specified amounts of its appropria*1064tion for delineated purposes. It is undisputed that art. 6, § 12 is an exception to limitations of the Governor's veto. It preserves the Governor's line-item veto and shields the Governor from becoming a "super-legislator." To hold otherwise would render art. 6, § 12 null, void, and useless.

. This case is cited strictly for the principle that an amendment to an appropriations bill, that redirects or places new conditions on money already appropriated, is itself an appropriation.

. House Bill No. 2276 at § 39 appropriated to the Ethics Commission the sum of $667,960.00 and at § 95 to the Department of Corrections $483,000.00.

. Webster's New International Dictionary 133 (Zed. 1950).

. The Oklahoma Legislature provides a "Glossary of Legislative Terms" for the public. It is available on line at http//www.oksenate.gov. legislation/glossary.html. Appropriation and Budget are both defined within the glossary. It also defines "budget" as an "estimate of the receipts and expenditures needed to carry out programs for a fiscal project."

. The Okla. Const. art. 5, § 55 provides:

No money shall ever be paid out of the treasury of this State, nor any of its funds, nor any of the funds under its management, except in pursuance of an appropriation by law, nor unless such payments be made within two and one-half years after the passage of such appropriation act, and every such law making a new appropriation, or continuing or reviving an appropriation, shall distinctly specify the sum appropriated and the object to which it is to be applied, and it shall not be sufficient for such law to refer to any other law to fix such sum.

. When this Court used "syllabus," the syllabus contained the law of the case and the body of the opinion was merely dictum. Robinson v. Oklahoma Nephrology Associates, Inc., 2007 OK 2, 113, fa. 2, 154 P.3d 1250; Corbin v. Wilkinson, 1935 OK 977 ¶ 0, 52 P.2d 45. The reasoning of the court in the body of the decision was an aid to the interpretation of the law expressed in the syllabus. Robinson, supra.

. It should be noted that the concurring opinion in Johnson v. Walters, 1991 OK 107 at ¶¶ 5-7, fa. 10-13, 819 P.2d at 703, relied on these authorities for the limited proposition that: 1) the Governor's powers are limited by the Constitution; 2) the Chief Executive may exercise only the power specifically granted; and 3) any attempt to exceed this authority results in the actions being rendered wholly ineffectual for any and every purpose.

. The Okla. Const. art. 6, § 12, 1 5, supra.

. It is interesting to note that the people solved this problem later, at least in regard to the Regents, when they enacted art. 13A, § 3 of the Okla. Const. which requires the Legislature to make one consolidated appropriation and the Regents to then allocate the funds.

. The Okla. Const. art. 5, § 55, see note 5, supra.

. Edwards v. Childers, 1924 OK 652, 228 P. 472, also explains the purpose of the appropriation requirement as:

¶11 ... This law was brought into being to curb the power of the monarch, to save the people from the prodigality of the king. This requirement was not intended, nor was it originally so worded as to protect the people from the ill-advised judgment and extravagance of Parliament itself. It merely made the will of the lawmakers paramount to that of the Crown in the expenditure of public funds. Neither the people nor their Parliament, by this law, sought to curb or regulate their own powers ...
¶ 12 So, it would seem that an act appropriating public funds to be used by a department of state conflicts in no wise with the letter or spirit of this law if it leaves no power in such department to use or expend any fund except those funds which the lawmakers viewed and considered, and, so beholding, clearly instructed such department to employ. In such case the department is restricted by legislative will to a definite limit for purposes stated.
¶ 13 In both sections of the statute under consideration, the Legislature has given the department an impressive command that all the moneys in this specific fund "shall be expended" for purposes and in the manner therein provided ...

. The Oklahoma Court of Criminal Appeals, in Ex parte Pope, 1925 OK CR 610, 242 P. 290, explains the concept of constitutional provisions dealing with "appropriations" as the intent of the sovereign people to keep a firm hand on the public purse strings, by limiting the power to spend money without an appropriation.

. The Okla. Const. art. 6, § 12, see 15, supra.

. In re Oklahoma Turnpike Auth., 1950 OK 208, 154, 221 P.2d 795; State ex rel. Murray v. Carter, 1934 OK 132, 119, 30 P.2d 700; Leininger v. Minter, 1929 OK 464, ¶ 12, 139 Okla. 169, 281 P. 801; Edwards v. Childers, 1924 OK 652, ¶ 8, 228 P. 472; Menefee v. Askew, 1910 OK 47, ¶8, 107 P. 159.

. Fent v. State ex rel. Office of State Finance, 2008 OK 2, 117, 184 P.3d 467 also provides in pertinent part:

118 As required by art. V, § 55, the provisions in H.B. 1105 distinctly specify the amount appropriated to each agency or revolving fund. The provisions do not distinctly specify the object to which the money is to be applied for each and every specific amount appropriated to a revolving fund, but the object can be determined by reference to other statutes creating or relating to the revolving fund. For instance, the object to which money in the State Emergency Fund is to be applied can be determined by reference to the statutes governing the revolving fund such as 62 O.S.Supp. 2006, § 139.47. Article V, § 55 provides that it is insufficient to refer to another law to determine the specific amount of the appropriation, but it does not extend the restriction against referring to another law to determine the object to which the appropriated amount shall be applied. The restriction against referring to another law to determine the amount appropriated will be strictly construed and will not be extended to other matters not covered by the restriction. Tate v. Logan, 1961 OK 136, ¶19, 362 P.2d 670, 674-675. Accordingly, H.B. 1105 is consistent with the provisions to make an appropriation by law in art. V, § 55 even though reference to other statutes is necessary to determine the objects or purposes of some of the appropriations.

. Opinion of the Justices to the Governor, 373 Mass. 911, 370 N.E.2d 1350, 1352 (1977).

. The Okla. Const. art. 6, § 12, see 15, supra.

. Perhaps John Adams, writing in defense of the British soldiers in the Boston Massacre Trials, said it best:

'"'Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passions, they cannot alter the state of facts and evidence."

J. Adams, Argument in Defense of the [British] Soldiers in the Boston Massacre Trials [December 1770].