People v. Tremaine

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] From the agreed statement of facts on which this controversy is submitted to the court it appears that the Governor transmitted to the Legislature his original itemized budget and budget bill on January 28, 1929, in accordance with article IV-A of the New York Constitution, section 2, which reads as follows:

"§ 2. On or before the fifteenth day of January next succeeding (except in the case of a newly elected governor and then on or before the first day of February) he [the governor] shall 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 clearlyitemized, and shall be accompanied by a bill or bills for allproposed appropriations and reappropriations; it shall show the estimated revenues for the ensuing fiscal year and the estimated surplus or deficit of revenues at the end of the current fiscal year together with the measures of taxation, if any, which the governor may propose for the increase of the revenues. It shall be accompanied by a statement of current assets, liabilities, reserves and surplus or deficit of the state; statements of the debts and funds of the state; an estimate of its financial condition as of the beginning and end of the ensuing fiscal year; and a statement of revenues and expenditures for the two fiscal years next preceding said year in form suitable for comparison. The governor may before final action by the legislature thereon, and not more than thirty days after submission thereof, amend or supplement the budget; he may also with the consent of the legislature, submit such amendment or a supplemental bill at any time before the adjournment of the legislature. A copy of the budget and of any amendments or additions thereto shall be forthwith transmitted by the governor to the comptroller."

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 provisions for the Department of Law are typical. They were as follows:

"DEPARTMENT OF LAW

"Personal Service

"To permit the attorney-general to reorganize the department of law, exclusive of the appropriations made for the investigation of sale of securities and unlawful corporative activities. .................... $582,250.00

"On or before June 15, 1929, the attorney-general shall file with the governor a tentative segregation of the amount hereby appropriated. Before any liability shall be incurred such segregation shall have the approval of the governor and no change shall be made in this tentative segregation during the fiscal year commencing July 1, 1929, without his approval.

* * * * * * *

"Special deputies, investigators, referees, witnesses and title searchers, services and expenses.. $60,000.00

"Before any liabilities are incurred against the above appropriation, a tentative segregation of the amount shall be approved by the governor. Changes in such tentative segregation may be made with his approval.

"INVESTIGATION OF SALE OF SECURITIES AND UNLAWFUL CORPORATIVE ACTIVITIES

"Services and expenses ..................... $210,000.00

"On or before June 15, 1929, the attorney-general shall file with the governor a tentative segregation of the amount hereby appropriated to be made available on July 1, 1929. Before any liabilities shall be incurred, such segregation shall have the approval of the governor and no change shall be made in this tentative segregation during the fiscal year commencing July 1, 1929, without his approval."

The State Finance Law, section 139, has since 1921 (L. 1921, ch. 336; L. 1927, ch. 364 [Cons. Laws, ch. 56]) provided as follows:

"§ 139. Segregation of lump sum appropriations. When, by act of the legislature, a state department is created or reorganized, or state departments consolidated, or a board, commission, division or bureau within a department is created or reorganized, and a lump sum is appropriated for its maintenance and operation, or for personal service, during the first fiscal year thereafter, no moneys so appropriated shall be available for payments for personal service, except temporary service or day labor, until a schedule of positions and salaries shall have been approved by the governor, the chairman of the finance committee of the senate and chairman of the ways and means committee of the assembly, and a certificate of such approval filed with the comptroller."

Although there is no accompanying act of the Legislature reorganizing the Department of Law or the Department of Labor, it is claimed by the respondent that this section is applicable to reorganization items in the budget bill or bills for such departments. Whether this contention is upheld or not, no question is raised as to the propriety of the reorganization items as such apart from the provisions for segregation.

In each instance in the original Governor's budget bill where a lump sum appropriation was specified for any purpose, the bill provided that the Governor should be the sole approving authority over segregations. Segregations consist of an itemized list of the positions and salaries covered by the lump sum appropriation.

The Legislature did not assent to the provision giving the Governor exclusive power of approval of such segregations. On February 27, 1929, it passed the Governor's original budget bill, striking out all the items to which the Governor had attached his provision of segregation control. The items were restated. Section 139 of the State Finance Law was allowed to take effect if and whenever applicable and in appropriations other than for reorganization of State departments the Legislature inserted segregation clauses calling for participation of the chairman of the legislative finance committees with the Governor in the approval of segregations.

The Governor refused to approve any of the lump sum items in which the chairmen of the finance committees were to share authority. He thereafter, on March 18, 1929, sent to the Legislature two supplemental budget bills, one containing many lump sum appropriations, for the needs of many State departments, all of which appropriations were restricted to the exercise of the Governor's sole power over segregations; and the other bill itemizing and segregating most of the appropriations appearing in lump sum form in the first supplemental bill. The Legislature, on March 28, 1929, acted upon this second supplemental bill, approving most of the segregated items therein, but again setting up a few of the departmental appropriations in lump sum form, more particularly the sums for reorganizing the Department of Law and the Department of Labor, with the intent that segregations were to be approved under section 139 of the State Finance Law. In cases other than reorganization, i.e., in cases of the large lump sum construction items, the Legislature appended to them a segregation clause like the one in section 139, requiring in the same manner all three — the Governor, the Chairman of the Senate Finance Committee and the Chairman of the Assembly Ways and Means Committee — to approve segregations when any part of such moneys was to be used for personal service. The provision affecting the use of construction items for personal service is found in section 11 of the bill, as follows:

"§ 11. No part of any appropriation made by this act for construction shall be expended for personal service except on the approval of the governor, the chairman of the senate finance committee and the chairman of the assembly ways and means committee. This provision may be complied with by the filing with the comptroller and the department of civil service of a list of the positions so approved and the time for which any person may be employed in such position. This provision, however, shall not apply to personal service employed by a contractor, by an institution on construction work done under special fund estimate, by an interstate commission, or on highways."

On April 12, 1929, the Governor upon the return of the bill to him, approved the lump sum items for reorganizing the Department of Law and the Department of Labor, insisting, however, that section 139 of the State Finance Law was unconstitutional in its application to those items. He disapproved the general segregation clause, section 11, referred to above, applying to the segregation of personal service items in the large construction items, as he said, "on constitutional grounds." The bill became chapter 593 of the Laws of 1929. Other appropriation bills passed at the same session contain similar provisions and were acted on by the Governor in the same manner. As the questions raised thereunder are, with the exception hereafter indicated as to the State Office Site and Building Commission, identical with those stated above, no special reference need be made to them.

The controversy thus arising was submitted on an agreed statement of facts to the Appellate Division, Third Department, under Civil Practice Act, §§ 546-548, inclusive, and thus became an action brought by the Attorney-General in the name of the People of the State of New York to restrain the Comptroller from making payments without the approval of the legislative chairmen and it comes here on an appeal from a judgment in favor of the plaintiff. The appellant asserts that the Legislature had no constitutional power to assign to its chairmen the function of approvers of the segregation of lump sum appropriations. The respondent asserts that the Governor had no power to veto the segregation clause without vetoing the items to which it referred. Constitutional questions, fundamental in character and far-reaching in importance, calling for careful and thorough consideration by the court, thus present themselves. Is section 139 of the State Finance Law unconstitutional? Is any other provision of law contained in the budget bills or elsewhere in the statute, allowing members of the Legislature to approve, with the Governor, segregations of lump sum appropriations in conflict with the fundamental law?

The first question to be considered is whether the Chairman of the Senate Finance Committee and the Chairman of the Assembly Ways and Means Committee may constitutionally be given the power to approve segregations of lump sums appropriated by the Legislature to the State departments. The power is given to them not as members of a Board, for there are no provisions for joint action, but as individuals, each of whom must exercise the power of approval independently. The question is primarily one addressed to the special limitations upon legislative power contained in the New York Constitution.

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. The New York Constitution (Art. III, § 21) provides: "No money shall ever be paid out of the treasury of this state or any of its funds, or any of the funds under its management, except in pursuance of an appropriation by law." "The law-making power has the sole authority over the subject of taxation and the appropriation of money." (Clark v.State, 142 N.Y. 101, 104.) Equally interesting but superfluous would be the historical discussion of the division of powers between the executive, legislative and judicial departments. Such powers ought to be kept separate and they are kept separate by the New York Constitution (Art. III, § 1) which provides: "The legislative power of this state shall be vested in the senate and assembly," and article IV, section 1, which provides: "The executive power shall be vested in a Governor." That the border lines of the three great departments of government are not definitely traced and that the division of such powers is not absolute is well understood. (Matter ofRichardson, 247 N.Y. 401, 413.) It may be said in general terms that the Legislature makes laws and the Executive enforces them when made and each is, in the main, supreme within its own field of action, although common sense and the necessities of government do not require or permit a captious, doctrinaire and inelastic classification of governmental functions. (Hampton Co. v. United States, 276 U.S. 394, 406.) The Legislature in making laws may, subject to the veto power of the Governor, create administrative offices and may provide how they shall be filled and nothing in the abstract division of powers prevents the selection of members of the Legislature to fill such offices. This power to create offices is legislative although the power of officers so appointed may be administrative. Their duties may be inconsistent with those of a member of the Legislature so that a choice must be made between them, under the rule which prohibits a person from holding two incompatible offices at one time, but in the absence of some constitutional or statutory inhibition a member of the Legislature is eligible to appointment to any office in the State or the civil divisions thereof. Prior to the adoption, in substance, in 1821 of the present article III, section 7, of the Constitution, it was the custom to appoint members of the Legislature to many of the great and valuable offices of the State. The practice had continued until the people expressed their disapproval, not so much of the merit and fitness of the appointees, as of the practice itself. In the debates in the Constitutional Convention of 1821 it was conceded that in point of talent and capacity a member of the Legislature might be better adapted to fill some executive or judicial office than any other person, but the method was condemned as subject to the danger of legislative subservience to the appointing power to obtain the spoils of office. (Lincoln's Constitutional History of New York, vol. IV, pp. 356 et seq.) It was thought wise to provide that the Legislature must be made independent, not only of the temptation to seek such appointments from the Executive, but also of the allurement to encroach upon the power of the Executive by appointing its own members to office. No one will question the fitness of members of the Legislature to hold administrative offices or to supervise the expenditure of public moneys, in the absence of a constitutional limitation. It is, however, quite elementary to say that the State Constitution is, subject only to the powers vested in the Federal government, the supreme law of the land; that the judges are bound thereby; that it is to be construed liberally and with regard to its fundamental aim and object and not with the acute verbal criticism to which a penal ordinance is properly subjected.

For upwards of one hundred years the Constitution has provided in substance as it now reads:

"Article III, § 7. No member of the Legislature shall receive any civil appointment within this State, or the Senate of the United States, from the Governor, the Governor and Senate, orfrom the Legislature, or from any city government, during the time for which he shall have been elected; and all such appointments and all votes given for any such member for any such office or appointment shall be void."

The words "any civil appointment" as thus used are very broad and include any placing in civil office or public trust, pertaining to the exercise of the powers and authority of the civil government of the State, not reasonably incidental to the performance of duties of a member of the Legislature, as distinguished from a military office or a mere employment or hiring on contract, express or implied. (State ex rel. Barney v. Hawkins, 79 Mont. 506; 53 A.L.R. 583, and notes.) The duties of members of the Legislature may be enlarged without making a civil appointment or creating a new office, so long as the duties are such as may be properly attached to the legislative office (Shoemaker v. United States, 147 U.S. 282), but the importance of the office is immaterial if the appointment is administrative or judicial in character. The prohibition is absolute and unqualified and in analogous cases has been ruthlessly enforced. It has been held that a park commissioner of a city is disqualified, under Constitution, article III, section 8 (People ex rel. Sherwood v. State Board of Canvassers,129 N.Y. 360), which provides that no officer under a city government shall be eligible to the Legislature; and that the President of the Board of Aldermen of New York forfeited his office by accepting an appointment as a member of the Finger Lakes State Park Commission under a provision of the New York City Charter which provided that any city official who shall during his term of office accept "any other civil office of honor, trust or emolument" of the State shall be deemed to have vacated his city office. (Matter of Hulbert, 124 Misc. Rep. 273; affd., 213 App. Div. 865; 241 N.Y. 525.) Under article VI, section 19, of the State Constitution, prohibiting a Supreme Court justice from holding any other public office or trust, it was held that a justice could not be assigned duties non-judicial in their character in aid of an executive investigation by the Governor under section 34 of the Public Officers Law (Cons. Laws, ch. 47), and could not accept such duties in his personal capacity. (Matter of Richardson, supra.) Under these decisions, the chairmen of the two committees "discharge duties, not for his [their] own benefit, not for the benefit of private individuals, but for the public." They are, therefore, public officers (People ex rel. Sherwood v. State Board of Canvassers, supra) and public officers vested with great powers to act as a check on the expenditure of lump sum appropriations.

Obviously the prohibition of the Constitution applies equally when a member of the Legislature receives a civil appointment ex officio, as chairman of a committee and when he is appointed by name. Otherwise it would be possible, except for the recently amended article V of the Constitution, for the Legislature to provide, e.g., that the Chairman of the Senate Finance Committee should be ex officio the State Superintendent of Banks, and to distribute offices to their own members by description rather than by name. No such evasion of the letter and spirit of the Constitution could be tolerated.

That the designation of the Chairman of the Senate Finance Committee and the Chairman of the Assembly Ways and Means Committee to approve the segregation of lump sum appropriations amounts to the making of civil appointments by the Legislature cannot be seriously disputed. The positions are created and filled by the Legislature; the incumbents possess governmental powers; the powers and duties of the positions are defined by the Legislature; such powers and duties are performed independently; the positions have some degree of permanency and continuity. Their power is not exhausted by a single act but is a general supervisory power over a large group of appropriations, amounting to nearly nine million dollars, to be exercised whenever the occasion arises. Unless the oath of a member of the Legislature is sufficient, the appointee should take the constitutional oath of office. (Const. Art. XIII, § 1.) Their appointment was on behalf of the government in a station of public trust not merely transient, occasional or incidental. It was "a continuing power to be exercised whenever occasion shall arise. * * * As often as the need arises, the call is to be met. * * * If the intention [of the legislature] was * * * to annex a permanent duty as an incident to the judicial [legislative] office, a public trust has been created though the occasions for discharging it may be irregular or fitful." (Matter of Richardson, supra.) If all this does not amount to a civil appointment, it is hard to see what more is required.

Respondent's counsel in their brief do not quarrel with this definition of a civil appointment. They say: "When acting on approvals the chairmen of the legislative committees are administrative officers, the same as the Governor is when performing that duty." Their contention is that such duties are reasonably incidental to the performance of the duties of a member of the Legislature. Doubtless many of the acts of members of the Legislature assigned in the past to boards, committees or commissions to investigate and report on matters of public interest in aid of the law-making power are reasonably incidental to the performance of legislative functions. Other duties assigned to such members by law may be of a private character, as when they are named as ex officio trustees of private educational establishments. (Matter of McGraw, 111 N.Y. 66,112; sub nom., Cornell University v. Fiske, 136 U.S. 152,200.) Others may be merely transitory or occasional and of minor import, not rising to the dignity of a civil appointment. The constitutional inhibition does not extend to such designations. (Matter of Richardson, supra.) Members of the Legislature may also be assigned to administrative duties by the Constitution,e.g., as Commissioners of the Land Office, as they were in the Constitution of 1846-1926. But the duties here assigned to the legislative chairmen are administrative duties and are not mere incidents of legislation. The Legislature has not only made a law — i.e., an appropriation — but has made two of its members exofficio its executive agents to carry out the law — i.e., to act on the segregation of the appropriation. This is a clear and conspicuous instance of an attempt by the Legislature to confer administrative power upon two of its own members. It may not engraft executive duties upon a legislative office and thus usurp the executive power by indirection. (Springer v. PhilippineIslands, 277 U.S. 189.)

Should the question arise whether the appointments under consideration are legislative or administrative, a dilemma presents itself, either side of which is fatal to the contention of the respondent. If they are legislative in character the appointment amounts to a delegation of the legislative power over appropriations. The Legislature cannot secure relief from its duties or responsibilities by a general delegation of legislative power to someone else. (People v. Klinck Packing Co.,214 N.Y. 121.) 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. If the power to approve the segregation of lump sum appropriations may be delegated to any one, even to one or two members of the Legislature, it necessarily follows that the power to segregate such appropriations may also be conferred upon such delegates. The conclusion would then be inevitable that the Legislature could make lump sum appropriations and delegate the power to two of its members to segregate the same, not only within a department but among departments. To visualize an extreme case, one lump sum appropriation might be made to be segregated by the committee chairmen. Such a delegation of legislative power would be abhorent to all our notions of legislation on the matter of appropriations. It would amount to a casting on others of a great measure of legislative responsibility assumed by the members themselves by their oath faithfully to discharge the duties of their office. If, on the other hand, the power is administrative, it has no real relation to legislative power. The head of the department does not legislate when he segregates a lump sum appropriation. The legislation is complete when the appropriation is made. The Legislature might make the segregation itself but it may not confer administrative powers upon its members without giving them, unconstitutionally, civil appointments to administrative offices. It might by general law confer the power of segregation or approval of segregation upon any one but its own members, subject to the provisions of the Constitution (Art. V), hereinafter discussed, if applicable but the Constitution (Art. III, § 7, supra) makes its own members ineligible to such an appointment.

It follows that so much of the appropriation bills in question as confers powers on the legislative chairmen to approve segregations is unconstitutional and void. As the controversy clearly indicates that the legislative purpose would be thwarted by permitting the power of approval to remain in the Governor alone, all the provisions for the approval of segregations in section 139 of the State Finance Law must be held void. (Pollock v. Farmers' Loan Trust Co., 158 U.S. 601, 635,636.) So far as the appropriations themselves are concerned, they may be separated from the unconstitutional parts of the statutes and are, therefore, the law of the State. Both Legislature and Governor clearly intended that the departments should be properly maintained in any event and provided therefor. The Legislature may not attach void conditions to an appropriation bill. If it attempts to do so, the attempt and not the appropriation fails. (Matter of Brennan v. Board of Education, 250 N.Y. 570.) The State Finance Law, section 139, and the vetoed section 11 of chapter 593 of the Laws of 1929 and all similar segregation provisions in the appropriation bills of 1929 are, therefore, unconstitutional and void, although the appropriations themselves, with the exception hereinafter noted, are valid.

One such appropriation bill calls for special consideration. The legislative power appropriates money and, except as to legislative and judicial appropriations, the administrative or executive power spends the money appropriated. Members of the Legislature may not be appointed to spend the money. It follows that so much of the appropriations in chapter 93, Laws of 1929, for the erection of public buildings made to and to be expended by the State Office Site and Building Commission, created by chapter 5, Laws of 1926, and composed of the Governor, as Chairman, the Temporary President of the Senate, the Speaker of the Assembly, the Chairman of the Senate Finance Committee, the Chairman of the Ways and Means Committee of the Assembly, the Superintendent of Public Works and the State Architect are affected with the vice of invalidity. A majority of the members of such Commission are legislative officers acting ex officio and are thus holding invalid civil appointments of an administrative character from the Legislature. When they are deprived of their offices or functions as members of such Commission, the Commission is eviscerated and invalidated, at least so far as its money-spending functions are concerned. (Pollock v. Farmers' Loan Trust Co., supra.) Such items are $550,000 for the State Office Building at Buffalo, and $3,250,000 for the State Office Building in New York city.

On the question of practical construction, little need be said. Prior to the adoption of the amended article V of the Constitution many boards or commissions containing members of the Legislature ex officio were created but the practice of providing for the certification by members of the Legislature of payments from lump sum appropriations to the heads of administrative departments is one of recent but rapid growth. Since 1921 a department of the State government, practically permanent in its functions, has been created by the Legislature by conferring on its two chairmen functions of segregation and approval. Liberal appropriations are made for the expenses necessary in this connection. Other designations of members exofficio to act on boards and commissions have gone unchallenged. Good reasons suggest themselves for such inaction. Many such designations were free from criticism for the reasons hereinbefore stated, as being either private or truly special and temporary in character (People ex rel. Washington v. Nichols, 52 N.Y. 478) or in part quasi legislative. In others, the Speaker of the Assembly, or some other legislative officer, has been named ex officio as a minority member of a board composed largely of administrative officers, as was the case of the old Board of Trustees of Public Buildings. All questions of legislative eligibility in such instances have become stale with the lapse of time. The custom does not amount to a concession of power to the Legislature to control the expenditure of appropriations once and finally made, or to a practical construction of the Constitution in favor of the legislation here questioned. Now comes a serious conflict between the executive and administrative officers and the Legislature by reason of appointments amounting to a substantial encroachment by the latter upon the powers of the former. General acquiescence in a custom which, all things considered, may not have resulted in a harmful violation — or indeed, any violation — of the Constitution, does not preclude a contest when substantial rights are insisted upon. (Los Angeles v. Los Angeles City WaterCo., 177 U.S. 558, 579.) In times of peace and harmony constitutional rights are not asserted. When a crisis presents itself the Constitution is invoked and when a justiciable question is presented to the courts they must decide it.

Although the real question in controversy is thus disposed of, other points are urged by the appellant in support of his contention. Much of the argument has ranged itself about the budget provisions of the Constitution (Art. IV-A, § 3, adopted in November, 1927) which provide as follows:

"* * * 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; none of the restrictions of this provision, however, shall apply to appropriations for the legislature or judiciary. Such a bill when passed by both houses shall be a law immediately without further action by the governor, except that appropriations for the legislature and judiciary and separate items added to the governor's bills by the legislature shall be subject to his approval as provided in section nine of article four."

The material part of article IV, section 9, which relates to the veto power of the Governor, provides: "All the provisions of this section, in relation to bills not approved by the Governor, shall apply in cases in which he shall withhold his approval from any item or items contained in a bill appropriating money."

The appellant contends that the explicit provisions of section 3, above quoted, were disregarded by the Legislature when it added section 11 to the Governor's supplemental budget bill; that the insertion of that section and like provisions in the Governor's budget bill altered the appropriation bill by adding to the items of appropriation a rider which was not an item or items of appropriation but was a piece of independent directory legislation. As we have already held that section 11 and similar provisions are void for unconstitutionality, the specific question is at present largely academic. If it were necessarily before us, an additional reason would appear for reversing the judgment below so far as it is affected by such provisions.

The respondent's counsel rely on section 22 of article III of the Constitution, which provides: "No provision or enactment shall be embraced in the annual appropriation or supply bill, unless it relates specifically to some particular appropriation in the bill; and any such provision or enactment shall be limited in its operation to such appropriation," and was inserted in the Constitution of 1894 to prevent the inclusion of general legislation in an appropriation bill. They contend that because the provision or enactment inserted in the bill by section 11 was germane to the particular appropriations in the bill to which it applied and was limited in its operation to such appropriations, it was, therefore, in accordance with the Constitution. But the provision of section 22, article III, which is prohibitory in terms, has no affirmative application to "an appropriation bill submitted by the governor" so as to permit the addition of the rider in question. The converse of the proposition stated negatively in section 22 is not true as applied to such bill. The rider is an alteration of such bill other than by striking out or reducing items therein; it is not an addition of an item of appropriations stated separately and distinctly from the original items of the bill and referring to a single object or purpose and its insertion in the bill was improper.

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. IV-A, § 4) it regulates the executive and legislative machinery and defines the method whereby appropriations shall be made. Its provisions were disregarded by the Legislature when it inserted section 11, regulating the segregation of appropriations generally. Nothing, however, contained therein prevents the Legislature from itemizing appropriations or from enacting general laws, apart from the Governor's budget bill, providing how lump sum items of appropriation shall be segregated, subject to the veto power of the Governor and the constitutional limitation of the Constitution, article III, section 7, heretofore discussed, and the provisions of article V of the Constitution so far as applicable. Assuming, however, that section 11 was a proper item for the Legislature to insert in a budget appropriation bill, much force attaches to the contention that such a direction is one which the Governor might veto. It is an item or particular, distinct from the other items of the bill, although not an item of appropriation. (Fairfield v. Foster,25 Ariz. 146; Wood v. Riley, 192 Cal. 293.) The veto power may not be circumvented by any such device of the Legislature.

A fundamental question presents itself in this connection. If the Legislature may not add segregation provisions to a budget bill proposed by the Governor without altering the appropriation bill, contrary to the provisions of article IV-A, section 3, it would necessarily follow that the Governor ought not to insert such provisions in his bill. He may not insist that the Legislature accept his propositions in regard to segregations without amendment, while denying to it the power to alter them. The alternative would be the striking out the items of appropriation thus qualified in toto and a possible deadlock over details on a political question outside the field of judicial review. The whole business of segregation seems to be a matter foreign to the budget appropriation bills, tending to prevent necessary appropriations for the support of government whenever the Governor and the Legislature are not in accord as to the manner in which lump sum appropriations should be segregated.

Another constitutional provision is brought to our attention. The amended article V of the Constitution provides (§ 2) for twenty civil departments in the State government, not including the legislative and the judiciary. It reads as follows: "There shall be the following civil departments in the State Government: First, Executive; second, Audit and Control; third, Taxation and Finance; fourth, Law; fifth, State; sixth, Public Works; seventh, Architecture; eighth, Conservation; ninth, Agriculture and Markets; tenth, Labor; eleventh, Education; twelfth, Health; thirteenth, Mental Hygiene; fourteenth, Charities; fifteenth, Correction; sixteenth, Public Service; seventeenth, Banking; eighteenth, Insurance; nineteenth, Civil Service; twentieth, Military and Naval Affairs." The number of departments was reduced to eighteen by chapter 343, Laws of 1926, effective January 1, 1927. Section 3 requires the Legislature to "provide by law for the appropriate assignment * * * of all the civil, administrative and executive functions of the State Government, to the several departments in this article provided." The purpose of the amendment was greatly to reduce the number of State departments and boards and to confine the distribution of all civil administrative functions, not temporary and special, to the departments enumerated in the Constitution (Art. V, § 2, supra) and to vest the appointment of department heads, so far as may be, in the Governor. (Art. V, § 4.) The duty of reorganization thus imposed was performed by the Legislature of 1926, by laws effective on January 1, 1927. The distribution of administrative functions to members of the Legislature, rather than to the constitutionally created civil departments, is thereby prohibited. The Legislature may create no departments or boards other than those named in the article, except as section 3 provides that it may create "temporary commissions for special purposes." The legislation here questioned distributes administrative functions of an important and general nature in a manner not provided for by the Constitution. The legislative policy as indicated is to renew this distribution of powers from year to year so that the attribute of general permanency attaches thereto. Although, under our ruling that section 11 is void, it is not necessary for the decision to pass definitely upon this question, it is clear that administrative functions other than those temporary in their character and special in their purpose, may be constitutionally bestowed only upon one of the civil departments of the State government provided for in article V, section 2.

In this connection it appears that the duties of the State Office Site and Building Commission were in effect taken from the Department of Public Works or other constitutional departments of government under the legislative ruling that it was a temporary commission for a special purpose. It is questionable whether a part of the duties of a constitutional department may thus be taken from it and assigned to a special commission. (L. 1926, ch. 348.) The whole body of departmental duty is continuous and if the parts may be separated into the temporary and special acts which go to make up the whole, all the powers of a constitutionally created administrative department may be shorn from it and distributed to temporary commissions to be renewed from year to year and the basic purpose of the amendment thus set at naught. At least it may be safely said that the provisions of article V could be completely nullified if the Legislature might withdraw from the departments thereby created the functions assigned to them by law and confer them upon its own members.

The result of our decision is that it devolves upon the heads of the departments to which the lump sum appropriations of 1929 drawn in question in this action were made, excepting the appropriations for the State Office Site and Building Commission, to apportion and allot the funds under such appropriations in accordance with law, without the approval of the Governor or the legislative chairmen.

The judgment should be reversed and judgment directed in accordance with this opinion, without costs.