plish that purpose directly or by an express provision in appropriation bills." 111 In 1929, Governor Franklin D. Roosevelt submitted a budget which included certain lump-sum appropriations. Under his plan, the allocation of funds to specific purposes would be subject to his approval. The legislature deleted those sections and insisted that the allocations be approved by the governor and two congressional committee chairmen. Roosevelt vetoed that section and the court ruled that the section was unconstitutional because it attempted to give administrative powers to legislators. Moreover, the section could be removed while leaving the appropriation intact. 112 Several decisions during this period involved the governor's power to reduce items. A Colorado court in 1923 examined the governor's reduction of an item from $7000 to $5250. Previous governors from Colorado had also disapproved of parts of items. Nevertheless, the court held that the governor had no authority to veto "a portion of a separate, distinct and indivisible item such as the one here under consideration." 113 An Oklahoma court in 1923 also decided that the governor had no power to reduce an appropriation item, in this case from $700,000 to $500,000 in one year and from $720,000 to $500,000 in the second year of a biennial appropriation.114 In yet another case of this kind, a court in Montana ruled that the governor had no authority to reduce appropriation items even to conform to a balanced budget required by the state constitution.115 Finally, in 1926 an Idaho court drove home the same point: the governor had no authority to reduce an item of appropriation. He had to approve or reject the item in toto.116 Three other issues from the 1920s deserve mention. In one case, the governor of Oklahoma vetoed an item ten days after the legislature had adjourned. The court said that the constitution implied that the governor should exercise his veto authority while the legislature is in session, to give lawmakers an opportunity to override, but the legislature was also expected to remain in session long enough to give the governor a reasonable amount of time to examine and inspect a general appropriation bill. In the court's words, the constitution did not contemplate that the legislature "may load an appropriation bill with unnecessary and objectionable items and then run away before the Governor has time to act.' "117 In this case, since the legislature did not repass the item through the override mechanism, the item did not become law. In a South Dakota case, plaintiffs contended that general appropriation bills were subject only to the item veto, not to the general veto. The court rejected this notion, treating general appropriation bills as a subset of all bills subject to the general veto power.118 Another issue arose when the governor of Arizona used the item veto to disapprove a gasoline tax. The court ruled that item-veto 111 Wood v. Riley, 192 Cal. 293 (1923). 116 Wheeler v. Gallet, 249 P. 1067 (Idaho 1926). 117 Carter v. Rathburn, 85 Okla. 251, 256 (1922). 118 Erskine v. Pyle, 51 S.D. 262 (1927). authority was restricted to appropriation items.119 Although the legislature was upheld, this case raised the question of how much lawmakers could dilute the governor's item-veto authority by financing state programs not through an appropriation but through the revenue system. At the level of the Federal Government, this issue takes the form of "tax expenditures": providing federal financial assistance through the tax code instead of through appropriations. CONSOLIDATING THE GOVERNOR'S POWER: 1930-1949 The dominant force of budget reform after 1930 took the form of the executive budget. The years of the Great Depression during the 1930s compelled the states to delegate to the governor much greater authority over the scope of public spending. State constitutions were rewritten to require the governor to present a balanced budget and to require legislatures to pass a balanced budget. Governors were also given greater discretion over the expenditure of funds, allowing them to withhold (impound) funds if they could satisfy legislative objectives with fewer dollars. Decline in item vetoes The use of the item veto declined as states adopted an executive budget system. New York amended its constitution in 1927 to require an executive budget. Governor Franklin D. Roosevelt vetoed 275 items that year and 172 the next, but by 1932 he vetoed only two items. Governor Thomas E. Dewey vetoed only two items from 1943 to 1954.120 The executive budget was so established in New York that only one of Dewey's ten annual budgets was amended in any substantial degree after it was transmitted, and that change affected solely the revenues. Only in 1949, following Dewey's defeat in the presidential election, did the legislature challenge one of his budgets. 120A Alabama had not balanced its budget since 1907, although the size of the annual deficit did not reach alarming magnitudes until 1931. A Budget Commission had been created in 1919, consisting of the Governor, the Attorney General, and the State Auditor, but the budget system suffered from numerous deficiencies. In 1932 the legislature abolished the Budget Commission and placed on the Governor the responsibility for submitting a balanced budget. 121 After Texas adopted a centralized budget procedure in 1949, greater scrutiny by the executive over agency budget requests resulted in a reduced need for item vetoes.122 This pattern also applied to other states: With the rise of the executive budget movement, and the adoption of more drastic measures to maintain fiscal stability during the depression, the item veto has re 119 Black & White Taxicab Co. v. Standard Oil Co., 25 Ariz. 381-98 (1923). 120 Joseph F. Zimmerman, "Rebirth of the Item Veto in the Empire State," 54 Stat. Gov't 51 (1981). 120A Frederick C. Mosher, "The Executive Budget Empire State Style," 12 Pub. Adm. Rev. 73, 77, 80 (1952). 121 Paul E. Alyea, Alabama's Balancing Budget 1-24 (1924); Jacob Wilner Sundelson, "Budgetary Methods in National and State Government," Special Report of the [New York] State Tax Commission, No. 14 (1938), at 562-64. 122 Gantt, supra note 28, at 185. verted to its original status. It remains a useful, albeit somewhat rusty "gun behind the door," to be aimed at an occasional predatory prowler. More modern weapons are demanded to meet irresponsible mass attacks upon the public treasury.' 123 Even in states that lacked an item veto, other restrictions were available to check legislative action. The governor of North Carolina has received substantial statutory authority from the legislature to strengthen his powers over budget control. 124 Iowa did not adopt the item veto until 1968, but prior to that time its constitution restricted omnibus bills and "riders" on appropriation bills by requiring that every act embrace but one subject.125 Heavier caseload During the years from 1930 to 1949, the courts entertained more than two dozen cases on the item veto. Federal courts were involved for the first time to decide the scope of item-veto authority by territorial governors. Two decisions were handed down by federal appellate courts and one by the U.S. Supreme Court. In 1944 the U.S. Circuit Court of Appeals for the First Circuit examined the authority of the governor of Puerto Rico to invoke item vetoes. The governor had reduced the salaries for certain public officers. While he was entitled under the Organic Act of Puerto Rico to reduce an appropriation item, another section of the Act prohibited the increase or decrease of a public official during his term in office. The item-reduction was therefore held to be unauthorized. 126 In 1950 the same court upheld the general right of the governor of Puerto Rico to reduce, as well as strike, items in an appropriation bill.127 The U.S. Supreme Court decision involved an item veto exercised by the Governor-General of the Philippines, who had the power under the Organic Act to veto "any particular item or items of an appropriation bill. The Court held that he was without authority to strike language because it was not an "appropriation item" and was not part of an "appropriation bill," even though one of the twelve sections in the bill appropriated funds. The Court said that to allow the item veto would result "in the enactment of a general law in an emasculated form not intended by the legislature and against the will, perhaps, of a majority of each house. This would not be negation of an item or items of appropriation by veto but, in effect, affirmative legislation by executive edict." 128 Problems of severability At the state level, most of the court cases occurred during the 1930's, when legislatures and governors clashed over the level of public funding. Of the two dozen court cases at the state level from 1930 to 1949, ten cases (or almost half) involved the troublesome issue of whether sections of a bill could be vetoed because they were "severable" and therefore only "negative" in effect. Two cases in Washington upheld the governor's veto of a section on the 123 Prescott, supra note 67, at 673 (footnote omitted). 124 Id. at 674. 125 Don Muyskens, "Item Veto Amendment to the Iowa Constitution," 18 Drake L. Rev. 245, 246 (1969). 126 Fitzsimmons v. Leon, 141 F.2d 886 (1st Cir. 1944). 127 Blanch v. Cordero, 180 F.2d 856 (1st Cir. 1950). 128 Bengzon v. Secretary of Justice, 299 U.S. 410, 444 (1937). ground that the language was a separable item. 129 However, a dissenting judge denied that the court could reasonably distinguish between negative and affirmative vetoes. He classified the governor's item veto as affirmative "because it actually creates a result different from that intended, and arrived at, by the Legislature.' "130 In that sense, of course, every veto has an affirmative effect. In subsequent decades, judges would become increasingly skeptical about their ability to discriminate between negative and affirmative vetoes. In 1940 a Wisconsin court conceded that a governor's item veto "did effectuate a change in policy," although the court decided that the balance of the bill in this case provided “a complete workable law." 131 In 1935 a Wisconsin court upheld the governor's veto of language in an appropriation bill by concluding that the language was not inseparably connected to an appropriation item. The elimination of the language left "a complete, consistent and workable scheme and law." 132 On the other hand, a year later a Massachusetts court decided that the governor had improperly vetoed a condition on an appropriation. Words or phrases, it said, were not "items or parts of items." 133 In time, the Massachusetts court would retreat from this broad ruling and allow the governor to delete restrictive words and phrases imposed on an appropriation item, provided that the language was separable. 134 A Virginia court in 1940 held that the governor could not veto items that were "tied up" with other provisions. The court used a colorful analogy to discuss the difference between separable and inseparable items: If the Commonwealth were to determine to erect a library building and were to set apart a certain sum for structural steel, another for a heating plant, etc., and were finally to provide for a supervising architect at a stated salary, plainly the Governor could not, by veto, dispense with the services of an architect, although the sum to be paid for his purposes might, in a limited sense, be regarded as an item. That term, as used in the Constitution, refers to something which may be taken out of a bill without affecting its other purposes or provisions. It is something which can be lifted bodily from it rather than cut out. No damage can be done to the surrounding legislative tissue, nor should any scar tissue result therefrom.135 The Virginia court analyzed seven provisions and items that the governor had vetoed. If a provision or condition was "intimately interlocked" with other portions of the bill, the veto was unauthorized.136 Courts in Washington and Louisiana allowed the governor to strike items or sections while leaving the remainder of the bill intact.137 In a 1944 Florida case, the court held that a section vetoed by the governor was void in any case because the constitu 129 Cascade Telephone Co. v. State Tax Commission, 176 Wash. 616 (1934); Tacoma v. State Tax Commission, 177 Wash. 604 (1934). 130 Cascade Telephone Co. v. State Tax Commission, 176 Wash. at 623 (Steinert, J., dissenting). 131 State ex rel. Martin v. Zimmerman, 233 Wis. 442, 450 (1940). 132 State ex rel. Wisconsin Telephone Co. v. Henry, 218 Wis. 302, 316 (1935). 133 Opinion of the Justices, 294 Mass. 616 (1936). 134 Opinion of the Justices, 384 Mass. 828 (1981). 135 Commonwealth v. Dodson, 176 Va. 281, 290 (1940). 136 Id. at 302. 137 State ex rel. Stiner v. Yelle, 174 Wash. 402 (1933); Shelton Hotel Co., Inc. v. Bates, 4 Wash. 498 (1940); Orleans Parish School Bd. v. Louisiana State Bd. of Ed., 215 La. 703 (1949). tion prohibited provisions on other subjects from being included in laws making appropriations for salaries. 138 Item-reduction Another cluster of cases revolved around the question of item-reduction. A Michigan court held that the governor had to disapprove items in toto. He had no power to reduce items. 139 In fact, Michigan governors had been exercising item-reduction powers for decades without incident, even though no such authority had been specifically granted them by the constitution. Legislative acquiescence came to an end because of a dispute between the governor and two key lawmakers. The governor's power to reduce items was declared unconstitutional as a result of a suit instigated by two senators: "Senator A. E. Wood, chairman of the Senate finance and appropriation committee, had parted friendship with the administration when the governor ignored his candidate for an appointment to the common pleas court in Detroit. Perhaps this explains his willingness to test [Governor] Brucker's extensive use of the power to reduce appropriations to bring about economy." "' 140 Although the Michigan court stripped the governor of item-reduction powers, the Michigan legislature proceeded to delegate by statute essentially the same authority. In 1935 Governor Fitzgerald was given the power to reduce allotments on a pro rata basis, and two years later Governor Murply was authorized by statute to make reductions to keep total expenditures in line with expected revenues. A lawsuit, which had been filed to test the legality of the 1937 statute, was dismissed by the courts. 141 Two decisions in Oklahoma denied that the governor had authority to reduce items. Language in a general appropriation bill, requiring the governor to approve expenditures by the Corporation Commission, was held void partly because the procedure allowed the governor to indirectly reduce an item. The legislature could not confer upon the governor authority "to do indirectly a thing which the Governor could not be directly empowered to do, that is, to reduce an item in an appropriation bill." 142 In a later decision the Oklahoma judiciary reiterated that the governor could not reduce an item. 143 Three other 1938 decisions in California related to the reduction of items, but by that time the governor of California had been granted item-reduction authority. In one case the governor vetoed two items of $328,000 and $20,000 within the general amount of $1,625,185 and then reduced the latter figure to $1,397,185, which was $120,000 higher than the original total minus the two items. The court sustained the governor's action. 144 In the two other decisions that year, the California court allowed the governor to veto an earmarked amount within a general appropriation item without reducing the level of the general appropriation item.145 145 Railroad Commission v. Riley, 12 Cal.2d 48 (1938); Pomeroy v. Riley, 12 Cal.2d 166 (1938). |