originally passed, the voluntary contributions went to a special fund to be expended as directed and thus could not be deemed an appropriation. It was only after the governor's veto altered the scheme that it became a true appropriation. The court held, first, that the determinative action was the bill as passed by the legislature. Next it found that the enrolled bill was an appropriation since it set apart a portion of public funds for a public purpose. 14 Two things should be noted here. Wisconsin is a jurisdiction that allows application of the veto to any bill that contains an appropriation. Second, the court specifically rejected an argument that the fund was a special fund for special purposes and thus did not constitute an appropriation in the constitutional sense. Arguably, in a jurisdiction following the majority view as to what constitutes an appropriation, and which also would find persuasive those cases excepting special funds from the ambit of appropriations, a different result might obtain.

What are the meanings of the terms "item", "parts" or "section"?

Depending on the wording of a particular constitution, a governor may have partial veto power with respect to an item or items of appropriations, or part or parts, or a section or sections of an appropriations bill. Some constitutions use varying combinations of the terms item, part and section, and those combinations have required extensive judicial interpretation. The result has been the development of divergent, conflicting lines of authority. Some courts have broadly construed the word item, or have found other language or raitonale, to support the extension of the item veto power to substantive portions of appropriations measures. Others have taken a narrower view, restricting the partial veto to items of appropriation.

The narrow or conservative view is reflected in both the earliest and most recent item veto cases. In a 1901 Pennsylvania case, the court construed the term "item" as used in the state constitutional provision to mean "the particulars, the details, the distinct and severable parts of the appropriation," and is "used interchangeably in the same sense" with the word "part." 15 There the governors veto power extended to "any item or items of any bill, making appropriations of money, embracing distinct items, and the part or parts of the bill approved shall be the law." The Arizona High Tribunal, construing similar constitutional language, found that the term 'item'... is used synonymously with 'subject', 'distinct or separate parts', and an objection and disapproval by the Governor of an item or several items of appropriations of money has reference to the distinct subject or part for which the appropriation is made." 16 In State v. Holder 17 it was held that a section of the constitution providing that the governor might veto parts of any appropriation bill and approve parts of the same, applied only to a general appropriations bill containing distinct items, and to the appropriations portions of that bill.

14 State ex rel. Kleczka v. Conta, 82 Wis.2d 679, 264 N.W.2d 539, 542-43 (1978).

15 Commonwealth ex rel. Elkin v. Barnett, 199 Pa. 161, 48 A. 976 (1901).

16 Callaghan v. Boyce, 17 Ariz. 433, 458, 153 P. 773 (1915).

17 76 Miss. 158, 23 So. 643 (1898).

These early cases have been benchmarks for later decisions holding that "item" meant a money item.18 Thus in a 1978 ruling, the Idaho Supreme Court, reviewing its state's item veto provision, found the foregoing case law persuasive in concluding that the constitutional language empowering the govenror to "disapprove of any item or items" of an appropriations bill means that he may disapprove only items of appropriations money.19 The court explained the rationale of this line of authority as follows:

Our interpretation of the word "item" accords with the purpose for which item veto provisions were inserted into state constitutions, i.e., to prevent the practice of logrolling and the resultant passage of omnibus appropriation bills. Bengzon v. Secretary of Justice, 299 U.S. at 415, 57 S. Ct. at 254; Fairfield v. Foster, 25 Ariz. 146, 214 P. 319 (1923); State v. Holder, 23 So. at 644; State ex rel. Sandaker v. Olson, 65 N.D. 561, 260 N.W. 586 (1935). Such bills combined necessary and proper items of appropriation with unnecessary or even indefensible special interest items. If the only weapon available to the governor to fight such legislation was the general veto power, "the governor might often be required to destroy much good legislation in order to defeat one item of a bill that was bad, or, on the other hand, be compelled to approve a piece of legislation vicious in part, in order to obtain the benefits of the salutary provision of the same act."

Regents of State University v. Trapp, 113 P. at 913. In order to allow the governor a measure of flexibility in dealing with appropriation bills combining several items of appropriation the constitutional framers included an item veto section.

"In plain English, they wished the Governor to have the right to object to the expenditure of money for a specific purpose and amount, without being under the necessity of at the same time refusing to agree to another expenditure which met his entire approval."

Fairfield v. Foster, 214 P. at 322 (emphasis supplied).20

The more expansive interpretive view is illustrated by a New Mexico decision. The state constitution allows a gubernatorial veto of "any part or parts, item or items, of any bill appropriating money." The state's High Court concuded that the inclusion of such words as "part or parts," and "item or items" was meant to enlarge the governors veto power to cover “(1) bills of general legislation, which contain incidental items of appropriation, as well as general appropriation bills, and (2) to 'items or parts' thereof, in addition to 'items of appropriation."

The Iowa constitution allows the governor to "approve appropriation bills in whole or in part, and may disapprove any item of any appropriation bill." The Iowa Supreme Court concluded that the governor may use partial vetoes only in appropriation bills, but is not limited to matters therein which appropriate money. However, the provision vetoed must be separate and severable, and not be a condition on an appropriation. 22

In Ohio, the governor "may disapprove any item or items in any bill making an appropriation of money." Even though Ohio's partial veto provision does not include the words "part or parts," the Ohio Supreme Court determined that it does not prevent the governor from vetoing only money appropriations in appropriation bills.

18 See Regents of State University v. Trapp, 28 Okla. 83, 113 P. 910 (1911); Wood v. Riley, 192 Cal. 293, 219 P. 966 (1923); Erskine v. Pyle, 51 S.D. 262, 213 N.W. 500 (1927); State ex rel. Sandaker v. Olson, 65 N.D. 561, 260 N.W. 586 (1935) Commonwealth v. Dodson, 176 Va. 281, 11 S.E. 2d 120 (1940). See also, Bengzon v. Secretary of Justice, 299 U.S. 410, 414 (1937). 19 Cenarrusa v. Andrus, 99 Ida. 404, 412, 582 P. 2d 1082 (1978).

20 99 Id. at 413.

21 State ex rel. Sego v. Kirkpatrick, 86 N.M. 359, 524, P. 2d 975, 981 (1974).

22 State ex rel. Turner v. Iowa State Highway Commission, 186 N.W. 2d 141, 150-51 (Iowa 1971); Weldon v. Ray, 229, N.W. 706 (Iowa 1975).

Rather, “we conclude that those provisions in an appropriation bill which are separate and distinct from other provisions in the same bill, insofar as the subject, purpose, or amount of the appropriation is concerned, are items within the meaning . . . of the Constitution." 23

Most recently, the Massachusetts Supreme Court has ruled that the governor's power "to disapprove or reduce items or parts of items in any bill appropriating money," means that he may treat as an "item" any separable provision attached to a general appropration bill. The court opined that a narrower reading of the governor's authority would be unfaithful to the framers of the provision, upset the balance of powers set up in the Constitution, and ignore important public policy considerations: "If the Governor did not have the power coextensive with that of the General Court under art. 63, general legislation included in a general appropriation bill would be rendered substantially veto-proof. The very vice of 'logrolling' against which the item-veto is a safeguard would be reintroduced.' . . . Such an encroachment on the executive's prerogatives would be a violation of the concept of separation of powers. . "24 The court expressly rejected those cases adopting a narrow definitive of the word "item," even where the constitutional language in those cases was similar to that of the Massachusetts provision, and affirmatively adopted the decisional line of authority of states "that have broadly construed 'item' or found language to support the extension of the limited veto power to nonitem portions of an appropriation bill. While the language of the Constitutional provisions discussed in these cases may differ from the language of art. 63, sec. 5, the cases demonstrate a recognition that legislative control should not be exercised in such a manner as to encumber a general appropriations bill with veto-proof 'log-rolling' measures (special interest provisions which could not succeed if separately enacted) or riders (substantive pieces of legislation incorporated in a bill to ensure passage without a veto)." 25

Two further comments may be made about the Massachusetts ruling. First, it may be noted that the rationale underlying the court's expansive reading is the same as put forth by the courts espousing the narrow view. Second, the court makes an approving reference to State ex rel. Sundby v. Adamany, 26 a Wisconsin ruling that is concededly the most expansive reading of any item veto provision which purports to be limited to appropriations bills. The Wisconsin constitution provides that "appropriations bills may be approved in whole or in part by the governor." The vetoed portion of the subject budget was a substantive provision which established a procedure whereby localities could exceed their levy limits without a public referendum. The effect of the veto was to require voter approval in a general referendum in every instance where the local government intended to exceed its levy limit, a substantive change in the enactment. The Wisconsin Supreme Court concluded that the governor's "partial veto power may be utilized to veto any por

23 State ex rel. Brown v. Ferguson, 30 Ohio St. 2d 245, 29 N.E. 2d 434, 438 (1972).

24 Opinion of the Justices to the House of Representatives, 384 Mass. 820, 825-826 (1981); Attorney General v. Administrative Justice of the Boston Municipal Court, 384 Mass. 511 (1981). 25 384 Mass. at 826.

26 71 Wis. 2d 118, 237 N.W. 2d 910 (1975).

tions of a bill, whether the portion itself is an item of appropriation or not, even if the result effectuates a change in legislative policy, as long as the portion vetoed is separable and the remaining provisions constitute a complete and workable law." 27 Whether or not the Massachusetts' court's citation of this precedent hints the direction its decisions will be taking, it does clearly underline the fact that courts may take widely divergent paths in interpreting similar language.

Can an item veto be used on provisos, instructions, limitations or conditions on appropriations?

State court efforts to steer a judicial course between the traditional policymaking prerogatives of legislature and the legislative role reflected in the gubernatorial item veto power, have met perhaps their severest test when dealing with appropriations measures containing substantive directions for spending monies appropriated, instructions to the executive branch, or other limitations and conditions. The guiding principle in many jurisdictions is that where a condition or limitation is attached to an appropriation, the condition or limitation must be observed; a governor cannot veto the appropriation without also disapproving the condition. 28 However, this general rule has been subject to a variety of important qualifications, and in some instances to outright rejection. Examples from each of the lines of authority may best serve to illustrate the underlying distinctions.

In an early leading case, the Mississippi Supreme Court invalidate an attempted veto of an appropriations proviso which conditioned the appropriation on the adoption of certain by laws by the board of trustees of the state university. Holding that the governor's authority to "veto parts of any appropriation bill" did not authorize this particular action, it unequivocally stated:

Every bill of the character in question has three essential parts: The purpose of the bill, the sum appropriated for the purpose, and the conditions upon which the appropriation shall become available. Suppose a bill to create a reformatory for juvenile offenders, or to build the capitol, containing all necessary provisions as to purpose, amount of appropriation and conditions, may the governor approve and make law of the appropriation and veto and defeat the purpose of the conditions, or both, whereby the legislative will would be frustrated, unless the vetoed purposes or conditions were passed by a two-thirds vote of both houses? This would be monstrous. The executive action alone would make that law which have never received the legislative assent. And after all and despite the pragmatic utterances of political doctrinaires, the executive, in every republican form of government, has only a qualified and destructive legislative function and never creative legislative power. If the governor may select, dissect, and dissever, where is the limit of his right? Must it be a sentence of a clause, or a word? Must it be a section, or any part of a section, that may meet with executive disapprobation? May the governor transform a condi

27 71 Wis. 2d at 130. See also State ex rel. Henry v. Wisconsin Telephone Co., 218, Wis. 302, 260 N.W. 486 (1935); State ex rel. Martin v. Zimmerman, 233 Wis. 442, 289 N.W. 662 (1940).

28 State v. Holder, 76 Miss. 158, 23 So. 643 (1898); Fulmore v. Lane, 104 Tex. 499, 140 S.W. 405 (1911); Fergus v. Russel, 270 Ill. 304, 110 N.E. 130 (1915); Fairfield v. Foster, 25 Ariz. 146, 214 p. 319 (1923); Black and White Taxicab Co. v. Standard Oil Co., 25 Arz. 381, 218 p. 139 (1923); Mills v. Porter, 69 Mont. 325, 222 p. 428 (1924); In re Opinion of the Justices, 294 Mass. 616, 2 N.E. 2d 789 (1936); Bengzon v. Secretary of Justice, 299 U.S. 910 (1937); Commonwealth v. Dodson, 176 Va. 281, 11 S.E. 2d 120 (1940); City of Helena v. Omholt, 155 Mont. 212, 468 P. 2d 764 (1970); Opinion of the Justices, 306 A. 2d 720 (1973); Caldwell v. Meskill, 164 Conn. 299, 320 A. 2d 788 (1973); State ex rel. Cason v. Bond, 495 S.W. 2d 385 (1973); State ex rel. Sego v. Kirkpatrick, 86 N.M. 359 P. 2d 975 (1974); Welden v. Ray, 229 N.W. 2d 706 (1975); Henry v. Edwards, 346 So. 2d 153 (L. 1977); Cenarrusa v. Andrus, 99 Ida 404, 582 P. 2d 1082 (1978); State ex rel. Link v. Olson, 286 N.W. 2d 262 (1979); Brown v. Firestone, 380 So. 2d 654 (Fla. 1980).

tional or a contingent appropriation into an absolute one in disregard and defiance of the legislative will? That would be the enactment of law by executive authority without the concurrence of the legislative will and in the face of it.29

In a Massachusetts case, the Supreme Judicial Court reviewed the validity of the action of the governor with reference to an item in a appropriation bill. The governor had requested $100,000 "for payment of extraordinary expenses and for transfers made to cover deficiencies." The act provided the sum of $100,000 but made it subject to the condition that $50,000 be used to carry out the purposes of several earlier enumerated sections and that $10,000 be used to entertain the President on state visits. $5,000 was for other items. Under his power "to disapprove or reduce items or parts of items in any bill appropriating money," the governor vetoed all of these enumerated purposes and left the $100,000 undisturbed. The court held that the striking of the purposes language was invalid, saying:

The fact that this action 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 appropriations 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.30 In a Missouri case the issue was whether the governor's power to "object to one or more items or portions of items of appropriation of money" allowed him to strike words which set out the purposes of various appropriation items. The court concluded that the term "item" referred to a separable sum of money appropriated and not "separately to words, phrases or sentences which express purposes or conditions with reference to the appropriation made.

Underlying this limited view of the reach of the item veto is an apparent reluctance to abandon adherence to strict separation of powers principles. A typical formulation of this rationale was advanced by the New Mexico Supreme Court:

The power of partial veto is the power to disapprove. This is a negative power, or a power to delete or destroy a part or item, and is not a positive power, or a power to alter, enlarge or increase the effect of the remaining parts or items. It is not the power to enact or create new legislation by selective deletions. . . Thus, a partial veto must be so exercised that it eliminates or destroys the whole of an item or part and does not distort the legislative intent, and in effect create legislation inconsistent with that enacted by the Legislature, by the careful striking of words, phrases, clauses or sentences.

We have heretofore held that the Legislature has the power to affix reasonable provisions, conditions or limitations upon appropriations and upon the expenditure of the funds appropriated. . . . The Governor may not distort, frustrate or defeat the legislative purpose by a veto of proper legislative conditions, restrictions, limitations or contingencies placed upon an appropriation and permit the appropriation to stand. He would thereby create new law, and this power is vested in the Legislature and not in the Governor. 3

32

Depatures from the general rule, however, are far from uncommon. One means used by the courts is to find the questioned provi

29 State v. Holder 76 Miss. 158, 181, 23 So. 643 (1898).

30 In re Opinion of the Justices, 294 Mass. 616, 2 N.E. 2d 789, 790 (1936).

31 State ex rel. Cason v. Bond, 495 S.W. 2d 385, 392 (1973).

32 State ex. re. Sego v. Kirkpatrick, 86 N.M. 359, 524 P. 2d 975, 981-82 (1974).