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tive approved the repealing section he approved something that his veto had already destroyed.82 The repealing section was therefore a nullity."

A decision in 1911 concerned the structure of an appropriation bill. The Oklahoma legislature had appropriated $285,810.23 for the State University. The bill apportioned that amount to a number of specific purposes. The governor believed that he was authorized not merely to item veto the aggregate sum of $285,810.23 but also the smaller sums contained in the apportionment. His cuts reduced the aggregate by $94,800. The court held that his item-veto authority was restricted to the aggregate sum, which constituted an item of appropriation. The court reasoned that the apportionment was not an appropriation but rather a direction by the legislature how the aggregate should be spent.83 The Oklahoma constitution gave the governor item-vote authority but not item-reduction authority. Under the court's ruling, it is obvious that the governor's item-veto authority could be blunted by the way the legislature structured an appropriation bill. This issue would return several times to the

state courts.

The same subject of item-reduction authority was treated by a Texas court in 1911. The legislature had appropriated to the Attorney-General's Department the sum of $83,160 for a two-year period. The court accepted this as two distinct items of $41,580 for each year. The governor struck the two-year amount and also $41,580 for the second year. He assumed that the $41,580 for the first year would have to cover both years. In essence, he was exercising itemreduction authority. The dispute was complicated by the fact that he also vetoed a lengthy paragraph (called a "guidance provision") which spelled out in considerable detail how the funds should be spent. The court held that his item-veto authority could be directed only at appropriation items, not at legislative language.84 The result of vetoing the guidance provision along with the second-year appropriation led to efforts to rehear the case and the writing of numerous opinions and concurrences among the justices, one of whom spoke of an "irreconcilable repugnancy" between the governor's veto message and legislative intent.85

Although this dispute resulted in a number of conflicting opinions without clear resolution, the case highlighted the techniques that legislature could use to restrict item-veto authority. Lawmakers could simply alter the structure of appropriation bills. As originally drafted, the two-year appropriation for the Attorney-General's Department contained eighteen separate and distinct items. These details were eventually collapsed to produce a single appropriation of $83,160. One of the justices remarked:

The wisdom of grouping many items of appropriation into a single item, it is not our province to determine, even if it could be assumed that it was purposely and deliberately done so as to deny to the Governor the right to prune or cut out any part or portion of the amount appropriated, because it was within the power of the

82 Spokane Grain & Fuel Co. v. Lyttaker, 59 Wash. 76, 86 (1910).
83 Regents of the State University v. Trapp, 28 Okla. 83, 92-93 (1911).
84 Fulmore v. Lane, 104 Tex. 499, 512 (1911).

85 Id. at 533 (Ramsey, J., concurring).

Legislature to make the appropriation in this manner, and same was not subject to any constitutional or legal objection.86

Three other cases during the period from 1900 to 1915 concerned the effort of a governor to reduce an item. In a Wyoming case, the governor deleted $5,000 from a $15,000 item. The court noted that governors in Wyoming had not followed the practice of chief executives in Pennsylvania, who had been reducing items for years without explicit constitutional authority. Thus, the authority and reasoning of Commonwealth v. Barnett (1901) did not apply to Wyoming.87 However, the Wyoming court withheld judgment on the power of the governor to reduce appropriation items.88 In a Maryland case, the court also withheld judgment on the governor's authority to reduce an item from $175 to $125.89

In the third item-reduction case, the governor of Illinois struck the words "per annum" from the item "$2500 per annum." The obvious effect was to reduce a two-year amount from $5000 to $2500. He also reduced "$4500 per annum" to $3500 per annum." The court held that the governor could not disapprove part of an item. He had to disapprove in toto. To permit item-reduction without the express authority of the constitution "would be a clear encroachment by the executive upon the rights of the legislative department of the State." 90

An Arizona decision in 1915 concerned the perplexing issue of vetoing sections and subsections of a bill. The court upheld some of the governor's actions and disallowed others. To the extent that the sections were "distinct and separable parts" of the appropriation bill, the governor's item veto was permissible.91 Other sections, however, were considered inseparable. The court said that freestanding legislative provisions in an appropriation bill-free-standing in the sense that they were not connected to an appropriation and were not expressed in the title of the bill-were void anyway because they violated other constitutional requirements. Such provisions were void even if the governor did not try to excise them through his item-veto authority.92

The last two cases of the 1900-1915 period involved the procedure for communicating the governor's disapproval. A West Virginia court said that the governor may not exercise item-veto power after the legislature adjourns and without communicating his reasons to the legislature before its adjournment.93 And in an Arkansas case, the court sustained a governor's item veto on the theory that his writing "disapproved and vetoed" across the face of an item constituted substantial compliance with the state constitu

86 Id. at 529. In Martens v. Brady, 264 Ill. 178 (1914), the court reviewed the constitutional requirement that appropriation bills should provide specific amounts to facilitate item vetoes. But the bill in dispute, combining the building and maintaining of state roads in one item, did not require one item for road construction and a separate item for maintenance. Those functions were too closely related, the court said, to demand discrete items.

87 State ex rel. Jameson v. Forsyth, 21 Wyo. 359, 377-78 (1913).

88 Id. at 379.

89 Norwell v. Harrington, 122 Md. 487 (1914).

90 Fergus v. Russel, 270 Ill. 304, 348 (1915).
91 Callaghan v. Boyce, 17 Ariz. 433, 458 (1915).
92 Id. at 456.

93 Woodall v. Darst, 77 S.E. 264 (W. Va. 1912).

tion's requirement that the governor state his objections and that he give notice by public proclamation.94

EMERGING BUDGET SYSTEMS: 1916-1929

By the second decade of the twentieth century, some budget reformers had concluded that the general veto and the item veto as applied to state appropriation bills were illogical and ineffective. They were illogical because they "reversed the relation which should exist between the governor and the legislature. Instead of the executive initiating appropriations subject to the revision of the legislative department, which was supposed to control the purse, the opposite situation prevailed." Vetoes were ineffective because "responsibility for expenditures was divided. They encouraged extravagance on the part of the law-making branch so that it came to rely upon the governor to make ends meet." 95

The executive budget

Under the impact of the executive budget movement, significant budget innovations were adopted in the states. The deficiencies of the existing system were summarized by Allen Schick:

(1) No central official was empowered to review or revise departmental estimates, or to make fiscal recommendations to the legislature; (2) in most states, each department's estimates were submitted separately, often at different times during the legislative session; (3) each agency classified its accounts in its own way; (4) the estimates usually were lacking supporting data and often were presented in lump sums; (5) agency requests were not related to revenue projections or to overall state expenditures; (6) each department bargained with the appropriations committees, and funds were appropriated separately for each department; (7) there was little or no central supervision of department spending.96

Although reformers were eager to transfer the task of budget preparation to the governor, the states split in two directions. Some assigned the task to the governor; others allowed budget preparation to be done by administrative boards (comprised of the governor and other state officials) or by an executive-legislative commission. Only after the latter arrangements proved unsatisfactory did states move more uniformly toward the centralization of responsibility in the governor's office.97

Maryland was the first state "definitely to adopt the principle of an executive budget by means of an amendment to its constitution." 98 The practical effect of its budget amendment of 1916 was to transfer the item veto from the governor to the legislature. Under this amendment, the governor initiated virtually all appropriations and presented them to the legislature in his budget bill. The legislature could reduce, but not add, items to the bill. After legislative action the budget bill would become law without further action by the governor. There is neither occasion nor need for item vetoes by the governor on the budget bill. After adoption of the bill the legislature could pass special appropriation measures for par

94 Dickinson v. Page, 120 Ark. 377 (1915). An item veto by the Governor of South Carolina was upheld in State ex rel. Long v. Jones, 82 S.E. 882 (S.C. 1914).

95 Wells, supra note 8, at 785-86.

96 Allen Schick, Budget Innovation in the States 14-15 (1971).

97 Id. at 17-18. See also Fred Wilbur Powell, "The Recent Movement for State Budget Reform: 1911-1917," Municipal Research, No. 91 (November 1917).

98 Will Franklin Willoughby, The Movement for Budgetary Reform in the States 16 (1918).

ticular purposes, and these measures would be subject to the governor's veto.99

West Virginia amended its constitution in 1918 to provide for a number of budget reforms, including the creation of a Board of Public Works to consist of the Governor, Secretary of State, Auditor, and several other officials. The Board was responsible for submitting to the legislature a Budget Bill which could not be amended by the Legislature to create a deficit. Other than amendments to increase or decrease the budget for the legislature and amendments to increase the budget for the judiciary, the legislature could only strike out or reduce items in the Budget Bill.100

The Nebraska constitutional convention of 1919-1920 framed a constitutional amendment to protect the governor's responsibility to prepare a budget. As adopted by the people, the amendment required the governor to present an itemized budget of the financial requirements of all state agencies for the ensuing biennium. The legislature could not exceed his recommendations unless each house mustered a three-fifths vote.101 Nebraska's constitution was later amended to provide for a unicameral legislature, and to increase the majority from three-fifths to two-thirds in order to exceed the governor's recommendations. Legislative add-ons approved in this manner by the legislature would not be subject to the governor's item veto. 102

New York adopted an executive budget in 1927. The legislature was prohibited from altering 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." 103

Litigation

The casework on the item veto continued to mount. From 1916 to 1929, more than a dozen decisions were handed down by state courts. The relationship between item-veto power and the structure of appropriations came before an Illinois court in 1917. The legislature had passed an appropriation bill containing the sum of $153,150 for a two-year period. The bill then listed forty-four purposes and established a specific amount for each. The governor directed his item vetoes against a number of these specific amounts. The court rejected the argument that the specific amounts were merely an apportionment or direction as to how the single item of $153,150 should be spent. To hold that the $153,150 was the only distinct appropriation item "would be to nullify the power given by the constitution to the Governor to withhold his approval from distinct items.” 104

The courts in Illinois also declared as unconstitutional and void a "reserve fund" which the legislature had established to be appor

99 Wells, supra note 8, at 787-88.

100 State ex. rel. Trent v. Sims, 77 S.E. 2d 122, 132-33 (W. Va. 1953).

101 Elmen v. State Board of Equalization and Assessment, 231 N.W. 772, 776 (Neb. 1930). 102 State ex rel. Meyer v. State Board of Equalization and Assessment, 176 N.W.2d 920, 923 (Neb. 1970).

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tioned among the executive, judicial, and military departments in response to emergencies. The court decided that the fund conflicted with Section 16 of Article V which required appropriation bills to "specify the objects and purposes" and to appropriate in "distinct items and sections." Indistinct funding, so argued the court, hampered the governor's item-veto authority, although two judges dissented on that ground. 105

In a case two years later, the Illinois court rejected the claim of a petitioner that the governor's item-veto authority could not be directed against the salaries appropriated for assistant attorneys general. Petitioner argued that once a legislature had created an office and fixed the salary, the governor could not item-veto the appropriation. Petitioner also maintained that the salaries of state officers were constitutionally protected. The court denied that salaries were excluded from the governor's authority to veto items. 106

In 1923 an Arizona court held that the legislature could not blunt the governor's item-veto power by calling specific sums a “direction" instead of an "item." 107 The Arizona court also decided two other issues that would return many times to the courts: (1) the power of the governor to reduce items and (2) the power of the governor to strike conditions from an appropriation. The Arizona court ruled that the governor had no item-reduction powers and could not veto a condition or proviso of an appropriation bill while allowing the appropriation itself to stand.108

The question of applying the item veto to conditions in an appropriation bill raised the recurrent issue of whether the veto power was "affirmative" or "negative." A Mississippi court in 1920 held that the governor could not item veto a condition on an appropriation bill, even if the governor chose to call the condition "legislation" on an appropriation bill and hence in conflict with the state constitution. Section 69 of the constitution prohibited the engrafting of legislation on appropriation bills. The court said that the legislature had a right to attach to an appropriation such conditions as it saw proper.109 Similarly, in 1923 an Arizona court ruled that the governor had no authority to veto a condition on an appropriation bill. 110

Depending on the language used, a "condition" could be a tactic used by legislatures to circumvent the governor's item-veto power. For example, in 1923 the legislature of California inserted a proviso in an appropriation bill that empowered the state controller at the request of the state director of education to transfer appropriations from one purpose to another. The effect of the language was to place in a subordinate of the governor the power to determine the level of an appropriation item. The governor item vetoed this proviso and was sustained by the court. To hold otherwise, said the court, would allow the legislature, "by indirection, [to] defeat the purpose of the constitutional amendent giving the Governor power to control the expenditures of the state, when it could not accom

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109 Miller v. Walley, 122 Miss. 521, 536 (1920).

110 Black & White Taxicab Co. v. Standard Oil Co., 25 Ariz. 381, 403-04 (1923).

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