These appeals arise from a judgment holding that the general appropriation act (1987 Ala. Acts No. 87-715) is unconstitutional insofar as that Act makes particular appropriations from the Alabama Special Education Trust Fund ("the ASETF") to various agencies of the state. The question presented is whether appropriations to state agencies can be made from the ASETF in a general appropriation bill.
The Constitution of 1901, § 45, provides in pertinent part:
The exception for general appropriation bills is limited by § 71:
While the 1987 Legislature was in session, the members of this Court answered an advisory opinion request from the Legislature with the opinion that the omnibus "education appropriation bill," while not a § 71 general appropriation bill, could stand as a § 45 single-subject bill because the subject of "public education" had historically been treated comprehensively in such appropriation bills. Opinion of the Justices No. 323, 512 So.2d 72 (Ala.1987). The opinion stated that no appropriations could be made in such a bill to institutions not controlled by the state, and then expressed a reservation as to appropriations to state agencies not obviously educational in nature:
"The appropriations to state agencies must come within the subject of public education. We cannot test the specific appropriations in the bill, however, because the bill in most cases gives only general descriptions of the recipients.
Id., at 77.
After that opinion issued, the legislature removed a number of appropriations from the education appropriation bill and added them to the general appropriation bill that became Act No. 87-715, the act now at issue. Appropriations in Act No. 87-715 from the ASETF to the following entities are now contested: the Department of Finance; the Alabama Academy of Honor; the Alabama State Council on the Arts and Humanities; the State Building Commission; the Department of Education; the Department of Examiners of Public Accounts; the Alabama Firefighters' Personnel Standards and Education Commission; the Alabama Law Institute; the Legislature; the Alabama Public Library Service; the Alabama Board of Nursing; the Commission on Physical Fitness; the Space Science Exhibit Commission; the Department of Youth Services; the Alabama Small Business Development Consortium; the Department of Public Health; the Alabama Department of Economic and Community Affairs; the Department of Mental Health and Mental Retardation; and the Office of Prosecution Services.
On August 27, 1987, Dr. Paul Hubbert and Margaret Ann Hubbert filed their complaint in the instant case, naming as defendants George C. Wallace, Jr., as treasurer of the State of Alabama, and Robert Childree, as comptroller of the State of Alabama. Many of the above-named recipients of the appropriations from the ASETF intervened as defendants.
The trial court entered judgment for the plaintiffs on November 13, 1987, but stayed the effect of its judgment for 45 days. By order of December 17, 1987, this Court extended the stay during the pendency of this appeal. The case was argued and submitted on February 8, 1988. Because we shall address separate issues raised by the various parties, we deem it useful to itemize the briefs filed. Three separate appellants' briefs have been filed: one for defendant Childree; one for defendant/intervenor Alabama Space Science Exhibit Commission ("the Exhibit Commission"); and one for defendants/intervenors Alabama Public Library Service, Alabama Firefighters Personnel Standards and Education Commission, Alabama Board of Nursing, and the Governor's Commission on Physical Fitness ("the APLS parties"). Several other intervenor/defendants have appealed, but they have simply joined Childree's brief. An amicus curiae brief, arguing in support of the appropriations, has been filed on behalf of 15 legislators. All but the APLS parties have also filed reply briefs. The appellees' brief filed on behalf of the Hubberts provides the only argument in support of the judgment.
Childree's position is shown in the following summary of the primary argument in his brief, to which we have added the numbers in brackets:
Childree essentially takes as granted that the appropriations at issue are for "educational purposes" and then argues that they may be included in a general appropriation bill because they are made to state agencies for ordinary expenses. The Exhibit Commission takes a different tack, disputing the view that the appropriations
The issues regarding whether educational appropriations can be made in a general appropriation bill arise because this Court has expressed the opinion and held on several occasions that the phrase "public schools" in § 71 allows appropriations only for grammar and high schools, i.e., not for colleges, universities, trade schools, and the like. See Opinion of the Justices No. 323, 512 So.2d 72 (Ala.1987); Alabama Education Ass'n v. Board of Trustees of the Univ. of Alabama, 374 So.2d 258 (Ala. 1979); State Tax Comm'n v. Board of Ed. of Jefferson County, 235 Ala. 388, 179 So. 197 (1938); Opinion of the Justices No. 31, 229 Ala. 98, 155 So. 699 (1934); Elsberry v. Seay, 83 Ala. 614, 3 So. 804 (1888).
On the other hand, the issues regarding whether "non-educational" appropriations can be made from the ASETF arise because the acts creating and allocating revenues to the ASETF specified that the revenues collected under the specified taxes
1927 Ala. Acts No. 163, § 2-K, at p. 148 (emphasis added). Similar language was included in 1935 Ala. Acts No. 194, § 405, at p. 573. The latter act was not only a general revenue act, but also adopted a revenue code that was the source of most of the "Revenue and Taxation" title, title 40, of the 1975 Code of Alabama.
These revenue acts of 1927 and 1935, which created and provided the initial funding for the ASETF, are the corollaries to the first "education appropriation" acts. This Court has referred to 1927 Ala. Acts No. 382 as the first of the modern omnibus education appropriation acts, Opinion of the Justices No. 323, supra, at 76, and cited 1935 Ala. Acts No. 326 as a succeeding "public education" appropriation act, id., at 77. Thus, the Legislature created and funded the ASETF at the same time as it began passing the comprehensive education appropriation bills that are primarily made up of appropriations from the ASETF.
Shortly after the ASETF was created, the majority of the income tax was constitutionally directed to be deposited to the credit of the ASETF, "to be used for the payment of public school teachers salaries only." Const. of 1901, amend. No. 61, proposed and ratified in 1947.
Other taxes have been enacted and earmarked to the ASETF, sometimes including language such as "for educational purposes only," sometimes not. These include at least portions of the revenues generated by the sales tax, Ala.Code 1975, § 40-23-35, and the use tax, § 40-23-85; the public utilities gross receipts tax, § 40-21-87, and the utility service use tax, § 40-21-107; taxes on rentals of personal property, § 40-12-227, and sales of automotive vehicles, § 40-23-108; the excise tax on brewed beverages, § 28-3-184(c)(3); and certain insurance premium taxes, §§ 27-4-4(a)(2) and -5(c)(2).
The original taxes funding the ASETF were license and privilege taxes on railroads; telegraph businesses; telephone businesses; express companies; hydro-electric power businesses; coal mines; iron ore mines; other mines, quarries, and sand and gravel pits; sleeping car companies; and sellers of cigars and cigarettes. See 1927 Ala. Acts No. 163, §§ 2 through 2-J. The
The greater part of these license taxes
Thus it can be seen that the ASETF is a statutory creation, except insofar as it is funded by the income tax constitutionally earmarked for teachers' salaries. The Exhibit Commission's brief addresses this aspect of the issues before us more squarely than the other appellants' briefs. Therefore, the most significant question is whether appropriations from the ASETF must be for educational purposes. Only if that question is answered in the affirmative would we be required to answer the question of whether such appropriations can be made in a general appropriation bill.
In determining the nature and effect of the restrictions on funds placed in the ASETF, an important fact to be considered is that all of the provisions earmarking funds for the ASETF, except the income tax provisions in amendment 61, have been enacted in revenue acts. The distinction between revenue bills and appropriation bills appears in § 45, which lists general appropriation bills separately from general revenue bills as exceptions to the single-subject requirement. In Nachman v. State Tax Comm'n, 233 Ala. 628, 634, 173 So. 25, 30 (1937), it was argued that an act imposing a license tax on retail stores and places of amusement and "appropriating" (appellant's term, not the statute's) the money "first, to the relief of the owners of homesteads to the extent of $2,000.00 of property; and, second, to the Educational Trust Fund," violated both § 45's single-subject requirement and § 71's requirement that all appropriations not in general appropriation bills be made by separate bills.
The Court answered the argument as follows:
233 Ala. at 634, 173 So. at 30 (emphasis added).
If earmarking is not appropriating, but rather a matter properly included in a revenue bill, the converse is also true: the removal or disregard of earmarking is not a matter properly to be included in an appropriation bill. Presumably, the earmarking could be removed in a proper single-subject bill or in a properly constituted revenue bill, but until such an action is taken, no appropriation bill can appropriate such funds other than as they were earmarked.
The point that earmarking cannot be repealed by an appropriation bill becomes even clearer when considered in light of the fact that the earmarking provisions are now substantive parts of the Code. See, e.g., § 40-1-31. Therefore, disregard of earmarking would violate the Code, and repeal of earmarking would amend the Code. For the legislature to either disregard or repeal earmarking in an appropriation bill would violate § 71 or § 45, for the same reasons as discussed above regarding revenue bills.
Thus, any appropriation bill appropriating ASETF funds other than as specified in the acts creating the ASETF and in the Code would violate § 71 or § 45 of the Constitution.
We do not find it significant that some of the revenue bills earmarking money for the ASETF did not include the requirement that the funds be spent for educational purposes. The 1927 and 1935 general revenue acts creating the ASETF specified that the funds therein were to be paid out only on appropriations "made specially ... for educational purposes." The operative portion of this language is carried forward into § 40-1-31. Although that section refers in terms only to the license taxes, it nevertheless carries forward the original legislative intent that all money in the ASETF must be spent for educational purposes.
The question, then, is whether such appropriations can be made in a general appropriation bill. We note that § 71 specifically states that appropriations for the public schools can be made in a general appropriation bill, and those appropriations, as limited by the decisions interpreting the term "public schools," can be made from the ASETF. Therefore, the only question is whether appropriations for the ordinary expenses of the executive, legislative, and judicial branches can be made from the ASETF.
We do not find decisive the argument that the appropriations at issue are "ordinary expenses" and at the same time "for educational purposes." This may in some sense be true, but the argument could too easily be taken to an extreme. For example, it could be said that highway construction is both an ordinary expense of the Highway Department and an expenditure for educational purposes because it allows the transportation of children to school. Some of the claims that the appropriations at issue are for educational purposes are nearly as tenuous as this example. If such arguments were sufficient to justify the inclusion of ASETF moneys in general appropriation bills, the requirement that those funds be used for educational purposes could become meaningless.
Whether or not appropriations in the general appropriation bill can have an incidental educational purpose, they must be for ordinary expenses of the executive, legislative, and judicial branches. Conversely, appropriations from the ASETF must be for educational purposes. Therefore, to allow appropriations from the ASETF in a general appropriation bill would be to impose a test in addition to those imposed by § 71, i.e., is it for educational purposes? To graft such a species of appropriations onto a general appropriation bill would violate both the spirit and the letter of §§ 71 and 45.
The Chief Justice reads this opinion as holding that no appropriations with an educational purpose can be made in the general appropriation bill, except appropriations for the "public schools." That is not the case. What we do hold is that appropriations from the ASETF cannot be made
For the foregoing reasons, we hold that the appropriations at issue cannot be made from the ASETF in a general appropriation bill. To the extent that the judgment below so holds, it is affirmed.
MADDOX, JONES, SHORES, BEATTY, ADAMS and STEAGALL, JJ., concur.
TORBERT, C.J., concurs in part and dissents in part.
TORBERT, Chief Justice (concurring in part and dissenting in part).
In this case, important constitutional issues involving the appropriation process were presented to this Court. I had hoped that the Court would resolve these issues clearly and with finality in order to give guidance and direction to our coordinate branch of government, the Legislature.
In reviewing the constitutionality of legislative enactments, this Court has consistently, over the years, recognized that the power of the Legislature is plenary except as limited by constitutions. "[I]n passing upon the constitutionality of a legislative act, the courts uniformly approach the question with every presumption in favor of its validity, and seek to sustain rather than strike down the enactment of a coordinate branch of the government. All these principles are embraced in the simple statement that it is the recognized duty of the court to sustain the act unless it is clear beyond reasonable doubt that it is violative of the fundamental law". Alabama State Federation of Labor v. McAdory, 246 Ala. 1, 9, 18 So.2d 810, 815 (1944); see also Home Indemnity Co. v. Anders, 459 So.2d 836 (Ala.1984).
I do agree with the majority opinion that, as the ASETF is presently established, appropriations from it are earmarked for educational purposes, and that the Legislature can not unearmark that money in a general appropriation bill. While § 45 excepts revenue bills and general appropriation bills from the single-subject requirement of § 45, § 71 does put limits on what can be properly included in a general appropriation bill. In addition, there is case law on the question of what is properly included in appropriation or revenue bills. In Alabama Education Association v. Board of Trustees of the Univ. of Alabama, 374 So.2d 258 (Ala.1979), while the Court split on the question of whether the legislation at issue was a general appropriation bill or simply an appropriation bill, the entire Court agreed that only those things germane to appropriations were properly included in the legislation.
Section 71 restricts the type of appropriations that can be made in a general appropriation bill. Only appropriations for "the ordinary expenses of the executive, legislative, and judicial departments of the state, for interest on the public debt, and for the public schools" can be included in the general appropriation bill. The majority opinion seems to recognize that the appropriations at issue are for the ordinary expenses of state government
I disagree, provided the appropriations are for the ordinary expenses of one of the three departments of our state government. To understand this disagreement, it is necessary to look at the history and purpose of § 71.
First, it should be noted that there is a scarcity of historical information with regard to the specific purpose for which § 71 was placed into the Alabama Constitution. A review of the journals of the Constitutions of 1875 and 1901 and the Alabama Constitutions in which this clause appears gives little guidance as to why this restriction was put into the Constitution. However, we do know something about the purposes of provisions similar to § 71 and its counterpart, § 45, as they are rather common provisions in numerous state constitutions. Sutherland Stat. Const., § 17.01 (4th ed 1985). Further, the history of the placement of § 71 and its counterpart, § 45, into our Constitution is also enlightening. The first two constitutions of this State, those of 1819 and 1861, contained no single-subject restriction similar to that in § 45, nor the provision of § 71 or its equivalent. The Constitution of 1865 was the first to contain a single-subject restriction such as that in § 45; see Art. IV, § 2. The single-subject requirement was designed to prevent the abuses of log-rolling. Opinion of the Justices No. 326, 511 So.2d 174 (Ala.1987). Section 45's single-subject restriction also appears in the Constitution of 1868, Art. IV, § 2. The predecessor of § 71 first appeared in the Constitution of 1875, Article IV, § 32, and was repeated in the Constitution of 1901. The history of the placement of these provisions under consideration suggests to me that the log-rolling problem initially came to light while the state operated under the 1819 and 1861 Constitutions. The framers of the Constitutions of 1865 and 1868 placed single-subject restrictions in the constitution to alleviate that problem. It probably became evident that there was an advantage in allowing more than one subject to be included in a single bill where that bill provided for the ordinary expenses of state government. It is impractical and too time-consuming to fund every agency in a separate bill. In summary, § 45 placed a restriction on the Legislature by requiring it to pass a separate bill for each subject, and § 71 was an exception to that general requirement necessary to provide for the orderly funding for state government.
With that general history in mind, we should ask the reason for the particular wording of § 71. In particular, why was the term "public schools" specifically included? Was funding for the public schools not considered to be an "ordinary expense" of state government, so that it was necessary to provide specifically for such? Or did the framers understand that funding for public education generally was within the ordinary expenses of state government, but intend to limit spending
First, § 71 should be construed in a manner that allows for the efficient, orderly funding of state government. However, because it is an exception to the single-subject requirement of § 45, it should be construed in such a manner as to allow for such efficient funding, but to prevent the emasculation of § 45's general requirement. Poyner, supra. Moreover, § 71 specifically provides that "The general appropriation bill shall embrace nothing but appropriations for...." (emphasis added). In addition, if it is possible, § 71 should be construed so that all operative clauses of the provision are given effect or some sphere of operation and that none be so construed as to be superfluous. Sutherland Stat. Const., § 46.06 (4th ed 1984). Section 71 states that the general appropriation bill can provide for three things, one very broad and two limited in scope: the ordinary expenses of state government, interest on the public debt, and the public schools. Therefore, at first blush it would appear that appropriations for the interest on the public debt and for the public schools were not considered to be ordinary expenses of state government or else it would have been unnecessary to specifically provide for them. However, just saying this does not answer the question as to why they were not considered to be ordinary expenses of state government. As previously noted, at least with respect to the "public schools" phrase, the appellants argue that it was because the appropriations were to go to local boards of education, which, they argue, were not considered state agencies at that time.
Appellees argue, and the majority opinion agrees, that by specifically providing for the public schools, the framers of the Constitution implicitly restricted funding for education in the general appropriation bill to only that for the public schools.
Given the principle that some educational activities can be funded through the "ordinary expenses of state government" phrase and, yet, that the "public schools" phrase has been consistently interpreted not to allow for the funding of colleges and universities, I believe a rational, workable distinction can be drawn between appropriations for non-traditional education that does not take place in a classroom setting and appropriations for formal traditional education. More specifically, because of our prior decisions, appropriations for schools or institutions of learning other than those that were historically known as the common schools, grades kindergarten through 12, can not be made in the general appropriation bill. However, appropriations for the ordinary expenses of state government can include appropriations that will be used for educational activities of state agencies.
If the appropriations challenged in this case are for the ordinary expenses of state government, then we should decide now the appropriate test for the Legislature to use to determine whether the activity can be funded from the ASETF. Statutes establishing this fund have merely provided that the funds "be used for educational purposes."
My research has revealed no case that has addressed the question of what kind of educational activity is properly funded from the ASETF. The Court of Appeals once defined "education" as "the process of developing and training the powers and capabilities of human beings" and noted that "[e]ducation means more than the acquisition of knowledge out of textbooks, however desirable that may be." Barbers Commission of Mobile County v. Hardeman, 31 Ala.App. 626, 21 So.2d 118 (1945). "Educational purpose" has been defined in one context as:
Black's Law Dictionary 461 (5th ed 1979). In Opinion of the Justices No. 323, 512 So.2d 72 (Ala.1987) we defined "appropriations for public education" for the purpose of § 45's single-subject requirement, by reference to what the Legislature had historically included in the education appropriation bill. Reference to contemporaneous
The difficulty of the problem was artfully expressed in Temple Lodge No. 6, A.F. & A.M. v. Tierney, 37 N.M. 178, 187, 20 P.2d 280, 284-85 (1933):
We should give guidance to the Legislature. I cannot agree to limit appropriations out of the ASETF in the general appropriation bill to only "the public schools." Instead, I would hold that appropriations out of the ASETF can be made to a state agency other than post-secondary institutions whose direct, immediate, and primary use of the funds embraces systematic instruction in any branch of learning from which a substantial public benefit is derived. See NRA Special Contribution Fund v. Board of County Commissioners of Colfax County, 92 N.M. 541, 591 P.2d 672 (1978).
In concluding that the appropriations in this case violate § 71, the majority must mean to say that if an appropriation is for an "educational purpose" as that term is used in the legislation creating the ASETF it can not be an "ordinary expense of state government." In my opinion, the fact that appropriations are for educational purposes simply does not exclude the appropriations, as a matter of law, from also being for the ordinary expenses of state government. Under my views in this case, I would allow appropriations for the ordinary expenses of state government to be made in the general appropriation bill funded out of the ASETF, provided the Legislature has determined them to be for "educational purposes" as that term is defined by this Court.
I would affirm the trial court's holding that appropriations from the Alabama Special Education Trust Fund must be for educational purposes, but I would reverse its holding that the only appropriations for educational purposes that can be made in a general appropriation bill are those for the "public schools." Therefore, I would remand this case for an appropriate determination of whether the appropriations to the agencies funded from the ASETF were for "educational purposes" as that phrase is defined herein.