Opinion
December 13, 1965
Constitutional Law, Appropriation of money, Governor. Commonwealth, Financial matters. Governor. County.
An "appropriation" of funds within § 3 of art. 63 of the Amendments to the Constitution is accomplished when an item for reimbursement of a county for certain expenses by the State is included in the annual general appropriation bill by the General Court, not when, in the annual county bill, the amount of the item is included in the estimated amount available for reduction of the county tax. [809] An annual county bill of the General Court, authorizing each county named to spend for specified objects funds to be raised by it by taxation and also an "estimated amount available for reduction of county tax," which estimated amount may include some State funds, is not an "appropriation bill" within the meaning of art. 63 of the Amendments to the Constitution. [810] The power given to the Governor by § 5 of art. 63 of the Amendments to the Constitution to "disapprove or reduce items or parts of items in any bill appropriating money" relates only to bills properly regarded as "appropriation" bills under other sections of art. 63. [811] The Governor had no power under § 5 of art. 63 of the Amendments to the Constitution to reduce the amounts of individual items which the General Court in an annual county bill authorized certain counties to spend. [811] Where the Governor returned a bill to the General Court with his approval, purporting under § 5 of art. 63 of the Amendments to the Constitution to reduce the amounts of certain items of expenditures authorized in the bill, but the bill was not one to which § 5 was applicable, the reductions could be given no effect and the bill with the original amounts of the items became law. [811]
On December 13, 1965, the Justices submitted the following answers to questions propounded to them by the House of Representatives.
To the Honorable the House of Representatives of the Commonwealth of Massachusetts:
The Justices of the Supreme Judicial Court respectfully submit these answers to the questions in an order adopted by the House of Representatives on November 22, 1965, and transmitted to us on November 24, 1965. The order recites the pendency before the General Court of several items of a bill, House No. 4123, entitled "An Act making appropriations for the maintenance of certain counties, their departments, boards, commissions and institutions, of sundry other services, for certain permanent improvements, for interest and debt requirements, and to meet certain requirements of law and granting a county tax for said counties," a copy of which was transmitted with the order. There is a recital that the said items were returned by the Governor reduced in amount in each instance as noted in his message, printed as House No. 4373, a copy of which was also transmitted with the order.
The Governor signed the bill on November 16, 1965, and notified the General Court that he had reduced the items in accordance with § 5 of art. 63 of the Amendments to the Constitution. In all, seven items in three counties were reduced. The reductions were the costs of additional positions considered by the Governor to be unnecessary, and would amount to savings of approximately $120,000 on a yearly basis.
Section 1 of art. 63 reads, "All money received on account of the commonwealth from any source whatsoever shall be paid into the treasury thereof." Section 2 provides in part, "Within three weeks after the convening of the general court the governor shall recommend to the general court a budget which shall contain a statement of all proposed expenditures of the commonwealth for the fiscal year, including those already authorized by law, and of all taxes, revenues, loans and other means by which such expenditures shall be defrayed." Section 3 provides, "All appropriations based upon the budget to be paid from taxes or revenues shall be incorporated in a single bill which shall be called the general appropriation bill. . . . The general court may provide for its salaries, mileage, and expenses and for necessary expenditures in anticipation of appropriations, but before final action on the general appropriation bill it shall not enact any other appropriation bill except on recommendation of the governor. The governor may at any time recommend to the general court supplementary budgets which shall be subject to the same procedure as the original budget." Section 4 reads, "After final action on the general appropriation bill or on recommendation of the governor, special appropriation bills may be enacted. Such bills shall provide the specific means for defraying the appropriations therein contained." Section 5 provides in part, "The governor may disapprove or reduce items or parts of items in any bill appropriating money."
The order also quotes from the Opinion of the Justices, 334 Mass. 716, 718, where it was said, "It is manifest that art. 63 was designed to place the fiscal operations of the Commonwealth as far as possible on a strict budget plan by which all money received on account of the Commonwealth from any source should be paid into its treasury and all proposed expenditures of the Commonwealth should be included in some appropriation bill." The order further states that final action on the general appropriation bill for the fiscal year 1966 has not yet been taken by the General Court; and that grave doubt exists (1) as to the power of the Governor to reduce the items under § 5 of art. 63, and (2) as to the competency of the General Court to enact House No. 4123 before the enactment of the general appropriation bill for the fiscal year 1966.
The questions are:
"1. Is House, No. 4123 an appropriation bill within the meaning of Article LXIII of the Amendments to the Constitution?
"2. If the answer to Question #1 is in the affirmative, is that portion of House, No. 4123 already approved and signed by His Excellency, the Governor, enacted in violation of section 3 of said Article LXIII for the reason that it was enacted prior to final action on the general appropriation bill for the fiscal year 1966?
"3. If the answer to Question #1 is in the negative and House, No. 4123 is not held to be an appropriation bill, is the action of His Excellency, the Governor, in reducing the aforementioned items, a proper exercise of the powers granted to him under Section 5 of said Article LXIII?
"4. Have the items reduced by His Excellency, the Governor, as indicated in his message become law in their original amounts before being so reduced, the time for the exercise of the veto power and the time for returning said bill with suggested amendments having elapsed in accordance with the provisions of Article II of Section 1 of Chapter 1 of Part the Second of said Constitution and Article LVI of the Amendments thereto?
"5. Upon the facts hereinbefore set forth were the statements and the questions appearing in calendar item 3325 of the House Calendar of Thursday, November 18, 1965, a copy of which is submitted herewith, at the end of each of the items, `This item has been reduced to (amount stated here). Question: Shall the item stand, notwithstanding the objections of His Excellency?' properly before the House of Representatives?"
1. Article 63 of the Amendments to the Constitution was adopted following the Constitutional Convention of 1917-1918. The debates in the Convention (hereinafter referred to as the Debates) and various convention documents confirm what the amendment itself shows, that the underlying purpose of the amendment was to centralize, and improve control of, the Commonwealth's funds and to insure careful consideration of their expenditure. See 3 Debates, 1153-1156, 1170, 1175-1178, 1193, 1203-1204, 1206-1207. See Convention Docs. Nos. 57, 275, 276, 277, 280, 325, 411, 420. The participating members of the Convention directed their remarks to appropriations and expenditures of funds held in the treasury of the Commonwealth for the Commonwealth's account. So far as this court or the Justices in advisory opinions have had occasion to consider art. 63, that article has been recognized as having application to the Commonwealth's budget and expenditures and to appropriations from the Commonwealth's treasury. Opinion of the Justices, 297 Mass. 577, 580-581. Opinion of the Justices, 300 Mass. 630, 635-636. Baker v. Commonwealth, 312 Mass. 490, 493. Opinion of the Justices, 334 Mass. 716, 718-720. See Opinion of the Justices, 308 Mass. 601, 608-618. Funds received, or proposed to be received, in part at least, in behalf of subdivisions, agencies, or other instrumentalities of the Commonwealth have been treated as on a different basis. See Dane v. Treasurer and Recr. Gen. 237 Mass. 50, 52; Knights v. Treasurer Recr. Gen. 237 Mass. 493, 496. See also Opinion of the Justices, 261 Mass. 523, 550; Horton v. Attorney Gen. 269 Mass. 503, 511-512; Opinion of the Justices, 334 Mass. 721, 734-735.
1965 House Bill No. 4123 is in the usual form of the annual county "appropriation" bill. See e.g. St. 1964, c. 529. Section 1 begins, "To provide for the maintenance of certain counties . . . the following sums for the several purposes and subject to . . . [certain] conditions . . . are hereby appropriated. . . ." For each county, except Nantucket County and Suffolk County, there follows a list of classifications or items of county expenditure. The bill in effect authorizes each such county to make such expenditures. The "[t]otal amount of appropriations" is stated for each county, as is the "[e]stimated amount available for reduction of county tax." The excess of (a) the total "appropriations" over (b) the estimated amount available for reduction of the county tax is then stated as the amount which the county commissioners "are . . . authorized to levy as the county tax . . . for the current year, in the manner provided by law." See G.L.c. 35, § 30 (as amended through St. 1945, c. 158, § 3), § 31, § 32 (as amended through St. 1960, c. 282, § 1), § 34 (as amended through St. 1959, c. 51). See also c. 35, § 28 (as amended through St. 1955, c. 316, § 1), § 28A (as amended through St. 1945, c. 398, § 3), and § 29 (as amended through St. 1945, c. 158, § 2); Nichols, Taxation in Massachusetts (3d ed.) 155-156. The authorization, contained in 1965 House Bill No. 4123, § 1, to the counties to expend funds extends, of course, not only to the funds to be raised by the county tax but also to the funds included in the "[e]stimated amount available for reduction of county tax."
The annual county appropriation bill purports to make no appropriation of State funds from the treasury of the Commonwealth. It authorizes each county included in the bill to spend only funds to be raised by it by taxation and certain estimated amounts available to reduce the county tax. See 1965 House Doc. No. 3640 (Estimates of County Receipts and Expenditures). The fact that for certain counties the estimated amount available to reduce the county tax includes some State funds (agricultural school expense reimbursements) does not alter the situation.
In the estimated receipts of three counties (Bristol, Essex, and Norfolk), we are informed that there are included estimates of State reimbursement for certain agricultural school expenses. See G.L.c. 74, § 9 (as amended through St. 1957, c. 599, § 6) and § 11 (as amended through St. 1941, c. 617, § 2); 1965 House Doc. No. 3640, pp. 14, 18, 28. We are advised also that the State funds, used in reimbursement for these agricultural school expenses, are in fact appropriated each year from the State treasury by the annual general appropriation bill. See e.g. St. 1964, c. 337, p. 223, item 2613-05 (which, we are told, includes this county reimbursement, although the item in the statute makes no reference to counties). As to these items of reimbursement, we are of the view that the appropriation of the funds from the State treasury (in the sense in which the word "appropriation" is used in art. 63) is accomplished not by the annual county bill but by the annual general appropriation bill.
The practice of enacting an annual county "appropriation" bill is of long standing. See e.g. Res. 1900 cc. 23-32, 38, 41. In 1917 and 1918, substantially similar provisions for the county tax and for county expenditures were made by a series of resolves, each entitled, "Resolve granting a county tax for the county of. . . ." See Res. 1917, cc. 61-71, 87; Res. 1918, cc. 74-85. The members of the 1917-1918 Convention must be taken to have been familiar with this practice. In view of the extended discussion of the proposed amendment which eventually became art. 63, it would have been natural for the Convention to have made explicit reference to the annual county resolves, if these had been regarded a part of the State budget problem then under discussion in the Convention and in the General Court. See e.g. Gen. Sts. 1918, c. 244, 1918 House Doc. Nos. 17, 1185, discussed in 3 Debates 1145-1148.
The practice of passing an annual resolve "granting a county tax" for the several counties was continued in 1919 (see Res. 1919, cc. 34-44, 46) and in 1920 (see Res. 1920, cc. 57-68), but in 1921, the county resolves were combined in one statute (St. 1921, c. 381), entitled in part, "An Act making appropriations for the maintenance of certain counties . . . and granting a county tax for said counties." The combined statute in form was much like § 1 of 1965 House Bill No. 4123, but no provisions similar to the later sections of the 1965 bill were included. The 1921 title reference to the annual county bill as an "appropriations" measure, of course, followed soon after the ratification of the budget amendment of the Constitution (art. 63). This circumstance at least suggests that the 1921 Legislature may have regarded the annual county bill as in effect a legislative appropriation of the funds to be raised by the county tax.
We must have regard for the substance as well as the form (a) of what is accomplished by these annual measures, (b) of what was intended by framers of art. 63, and (c) of the context of that amendment. We conclude that the annual county bill has no such direct connection with the budget of the Commonwealth or with the appropriation and expenditure of State funds or State-collected funds, as to constitute an appropriation bill within the meaning of art. 63. In our view art. 63 has not provided the same safeguards in respect of the appropriation and expenditure of county funds. We think that the history and language of art. 63 show that it relates to funds, taxes, and revenues in, or received by, the State treasury and to their appropriation and expenditure.
The annual county bill in substance and effect does not authorize any payment of State funds from the State treasury. It is more in the nature of an authorization of the raising of money by the counties and of the expenditure of the money so raised, and of other funds, by the several counties for specified objects. See the discussion in Opinion of the Justices, 323 Mass. 764, 766 et seq. Accordingly, we advise that 1965 House Bill No. 4123 is not an appropriation bill within the meaning of art. 63 of the Amendments.
Question No. 1, we answer "No."
2. In view of the answer to Question No. 1, no answer to Question No. 2 is required.
3. The power given to the Governor by art. 63, § 5, of the Amendments to "disapprove or reduce items or parts of items in any bill appropriating money" in context relates to bills which are properly to be regarded as appropriation bills under other sections of art. 63. We are of opinion that this power (see Opinion of the Justices, 294 Mass. 616, 620-621) has no relation to bills, even if entitled "appropriation" bills, which do not in terms authorize the payment of State funds from the State treasury by an appropriation in the strict sense of that term. The Governor's power to disapprove individual items did not extend to 1965 House Bill No. 4123.
Question No. 3 must be answered "No."
4. His Excellency, the Governor, upon the facts stated in the request for opinion (see 1965 Senate Journal, pp. 1957-1958, and 1965 House Journal, pp. 2653-2654) did not exercise either (a) the "qualified veto power conferred . . . by c. 1, § 1, art. 2, of the Constitution" (see Opinion of the Justices, 294 Mass. 616, 619) by disapproving 1965 House Bill No. 4123, as a whole, or (b) the power contained in art. 56 of the Amendments of returning the bill to the branch of the General Court in which it originated, with a recommendation for amendments (see 294 Mass. 616, 620). Instead, he approved the bill and purported to reduce certain items. See 1965 House Doc. No. 4373. This attempted action, in our opinion, can be given no effect.
The answer to Question No. 4 is "Yes."
5. In view of our answer to Question No. 4, Question No. 5 need not be answered.
RAYMOND S. WILKINS JOHN V. SPALDING ARTHUR E. WHITTEMORE R. AMMI CUTTER PAUL G. KIRK JACOB J. SPIEGEL PAUL C. REARDON