Opinion No. (1978) ( 1978 )

REQUESTED BY: Dear Senator:

You have requested the opinion of this office concerning the effect of Senator Lewis' amendment to the Hefner-Marvel amendment to LB 1 upon the state budget adopted by the Legislature this past session. The Hefner-Marvel amendment to LB 1 adds three sections which impose a 7 percent budget increase limitation upon state spending beginning with the 1979-80 fiscal year, unless the Legislature suspends the limitation by a four-fifths vote. As to the constitutionality of this amendment, we direct your attention to Opinion No. 254 written earlier to Senator Warner concerning LB 4 (attached). The Lewis amendment amends the Hefner-Marvel amendment by making the budget limitation upon the state effective for the 1978-79 fiscal year, which is the fiscal year for which appropriations were made ibe amended unless the new act contain Your question is what effect the Lewis amendment will have on those appropriations. In our opinion, the Lewis amendment as it now stands can have no effect upon the appropriations made at the last session.

Article III, section 22, provides in pertinent part that [E]ach Legislature shall make appropriations for the expenses of the Government.' Article III, section 25, provides in pertinent part as follows:

". . . No money shall be drawn from the treasury except in pursuance of a specific appropriation made by law, . . ."

Finally, Article III, section 14, provides in pertinent part as follows:

". . . And no law shall be amended unless the new act contain the section or sections as amended and the section or sections so amended shall be repealed. . . ."

At the past session, specific appropriations were made by the Legislature for the expenses of government for the coming fiscal year. Once the appropriation is made, the agency to which the appropriation is made has authority to spend those funds for the appropriate purpose. The effect of the Lewis amendment, if given effect, would be to amend those appropriation bills which have already been duly passed by the Legislature. Under Article III, section 14, this cannot be done unless the ``new act contain the section or sections as amended and the section or sections so amended shall be repealed.' It could, however, be argued that LB 1 as amended would constitute a complete and independent act and therefore that it does not need to set forth and repeal the section or sections amended. Even if such an argument were applicable, which we do not believe is true in this case, there nevertheless would be a further constitutional problem with the specificity of the appropriation, under Article III, section 25. It would be impossible for the executive department to determine where funds are to be cut from a budget in order to comply with the 7 percent lid, because a ``specific appropriation' has not been made in accordance with the Constitution. Only the Legislature has the authority to make that determination. Therefore, in order to accomplish the results contemplated by the Lewis amendment, it is our opinion that the appropriations bills passed at the past session of the Legislature must be specifically amended in order to satisfy both section 14 and section 25 of Article III.

Reading the constitutional provisions cited herein in pari materia and considering the constitutional problems which would be presented, we do not believe the Lewis amendment could be defended against constitutional attack.

You have also asked in your request whether the term ``budget' in the Hefner-Marvel amendment includes revolving funds and reappropriated funds. Unless defined otherwise, it is our opinion that reappropriated funds would be included. We are not sure, however, what you are referring to by revolving funds. As a general rule, however, any funds which the Legislature appropriates, except federal funds, would be included in the term ``budget' according to section 5 of the amendment. Therefore, if the revolving funds are appropriated by the Legislature and are other than federal funds, they would be included within the term ``budget.'