State Ex Rel. Brotherton v. Blankenship , 157 W. Va. 100 ( 1973 )

Neely, Justice,

dissenting:

I respectfully dissent from the majority’s holding that Article VI, Section 51 of the Constitution of the State of West Virginia permits the Governor to strike specific purposes or conditions attached to items of appropriation and insert a lump sum figure equal to the original amount appropriated.

The language of Subsection 11 of Article VI, Section 51 of the Constitution is ambiguous and requires interpretation consistent with the intent of both the drafters and the electorate. The provision that “ . . . The governor may veto the bill, or he may disapprove or reduce items or parts of items contained therein. . . .” was not intended to eliminate the Legislature’s absolute power over the appropriation of funds. Three hundred years of British and American constitutional history accord the Legislature the preeminent weapon of the purse to insure conformity to its will by other branches of government. Under the rule enunciated by a majority of this Court, a governor is now permitted unbridled discretion in the use of money appropriated within line item categories. Legislative attempts to establish priorities through the imposition of conditions on expenditures will henceforth be unavailing.

The diversity of state constitutions forecloses the possibility of a universal precedent on this subject. Where this issue has been fairly raised concerning constitutions similar to ours the better reasoned interpretation has been that where there is an executive budget with partial vetoes, an appropriation along with all conditions should be considered one item. Under this interpretation a governor may completely veto or partially reduce an item, but he may not change the conditions attached to the expenditure of any money. This interpretation finds precedent in the case of In Re Opinion of The Justice, 294 Mass. 616, 2 N.E.2d 789 (1936) in which the court said:

“ ... By section 5 of said article 63, ‘the governor may disapprove or reduce items or parts of items in any bill appropriating money. So much of such bill as he approves shall upon his signing the same become law. As to each item disapproved or reduced, he shall transmit to the house in which the bill originated his reason for such disapproval or reduction, and the procedure shall then be the same as in the case of a bill disapproved as a whole.’ The fact that this section relates solely to appropriation bills, in conjunction with the word ‘reduce,’ indicates clearly that the expression ‘items or parts of items’ refers to separable fiscal units. They are appropriations of sums of money. Power is conferred upon the Governor to reduce a sum of money appropriated, or to disapprove the appropriation entirely. No power is conferred to change the terms of an appropriation except by reducing the amount thereof. Words or phrases are not ‘items or parts of items.’ This principle applies to the condition attached to the appropriation now in question. That condition is not an item or a part of an item. The veto power conferred upon the Governor was designed to enable him to recommend the striking out or reduction of any item or part of an item. In the present instance His Excellency the Governor did not undertake to veto the appropriation of $100,000 made by item 101, or any part of it, nor to reduce that amount or any part of it apportioned to a specific purpose. He sought, rather, as shown by his message, to enlarge the appropriation made by the General Court by throwing the $100,000 into a common fund to be used for any one of several different purposes. We are of opinion that the power conferred upon him by said article 63 does not extend to the removal of restrictions imposed upon the use of the items appropriated. It is plain that no other provision of the Constitution confers power upon the Governor to disapprove the condition attached to the item in question.”

Our sister state of Virginia has similarly held under circumstances almost identical to the case at bar in the case of Commonwealth v. Dodson, 176 Va. 281, 11 S.E.2d 120 (1940) in which the court said:

“We think it is plain that the veto power does not carry with it power to strike out conditions or restrictions. That would be legislation. Plainly, money devoted to one purpose can not be used for another, and it is equally plain that power to impose conditions before it can become available is legislation.

“An item in an appropriation bill is an indivisible sum of money dedicated to a stated purpose. It is something different from a provisions or condition, and where conditions are attached, they must be observed; where none are attached, none may be added.”

While there are cases holding to the contrary, I believe that they reflect a theory of government which is inconsistent with our tradition of separation of powers. The history of liberty is the history of legislatures. When once the Legislature has been divested of its traditional power of the purse it will stand like Stonehenge as a useless and incomprehensible monument to a past era. Sic transit gloria mundi.