We have received Senate Resolution No. 95, by which you request the opinion of the Justices as to whether House Bill 204, as amended and substituted, violates the provisions of Sections 61, 45, and 71 of the Constitution of Alabama, 1901.
Your Resolution reads:
We express our opinion on each of the questions in the same order in which you asked them.
Your question 1—whether House Bill 204 as engrossed has been so altered or amended as to change its original purpose—is answered in the affirmative.
Section 61 of the Constitution provides: "No law shall be passed except by bill, and no bill shall be so altered or amended on its passage through either house as to change its original purpose."
This Court has held that Section 61 is violated when the "purpose" of the bill passed is different from the original "purpose" of the bill as introduced. In Gafford v. Pemberton, 409 So.2d 1367, 1375 (Ala. 1982), this Court stated that "[t]he `purpose' of a bill within this section is the general purpose of a bill, not the mere details through which its purpose is manifested and effectuated." (Emphasis added).
In Opinion of the Justices, No. 255, 361 So.2d 536 (Ala.1978), this Court, in an advisory opinion based on a request from the Governor, opined that where the general purpose of the bill and the purpose of the resulting act was to provide monies for capital improvements for educational purposes, Section 61 was not violated by the fact that the original bill provided a direct appropriation from the general fund and the resulting act provided for financing through a bond issue. See, also, Comer v. City of Mobile, 337 So.2d 742 (Ala.1976); Blackwell v. State, 230 Ala. 139, 162 So. 310 (1935); and State Docks Commission
Applying the principle of law set forth in the cited cases, we are of the opinion that the original purpose of House Bill 204, as stated in its title, was to "make appropriations for the ordinary expenses of the executive, legislative and judicial agencies of the State, for other functions of government, for interest on the public debt, and for capital outlay for the fiscal year ending September 30, 1992." At the time House Bill 204 was introduced, neither Section 3 nor Section 4 of House Bill 204, as engrossed, was included.
Those Sections provide:
It is apparent that these two sections, by providing respectively (1) that monies appropriated in House Bill 204 shall not be expended by a state entity to employ or contract to employ more persons than the highest number of persons employed or contracted to be employed at any point in the last two fiscal years, and (2) that monies appropriated by House Bill 204 shall not be expended for the purchase or lease of automobiles, thereby alter or amend the
Although we have not researched the various Code provisions and state statutes that assign powers and duties to various state department heads to hire necessary employees and to make necessary equipment purchases, we do list some so as to give an indication of the effect that Sections 3 and 4 would have on those Code provisions and statutes. See, Ala.Code 1975, §§ 27-2-1 through—55 (powers and duties of the Department and Commissioner of Insurance); §§ 23-1-1 through -318 (powers and duties of the Highway Department); §§ 32-2-1 through -44 (powers and duties of the Department of Public Safety); §§ 29-7-1 through -7 (powers and duties of the Legislative Reference Service); and §§ 36-15-1 through -21 (powers and duties of the Attorney General).
The purpose of House Bill 204, as expressed in its title, was "To make appropriations for the ordinary expenses of the executive, legislative and judicial agencies of the state, for other functions of government, for interest on the public debt, and for capital outlay for the fiscal year ending September 30, 1992."
House Bill 204, as amended and substituted to include Sections 3 and 4, provides that the appropriations made in House Bill 204 cannot be expended to hire necessary employees or to make necessary equipment purchases, and, further mandates that the director, officer, or head of each state department, division, board, bureau, commission, agency, institution, or office, file certain reports with the State Finance Officer and the Legislative Fiscal Officer. The mandates of Sections 3 and 4 of the Bill, therefore, effectively limit the powers of state officials otherwise granted to them by other provisions of law, and they appear to change the Bill's original purpose from one of making general appropriations to the various departments and agencies of state government to one of making appropriations but also repealing and changing other provisions of law that grant to the various state departments and agencies powers to hire necessary employees and to make necessary equipment purchases.
Although we are cognizant of the plenary power of the legislature to make conditional appropriations, and although we recognize that the legislature can repeal any prior law that grants to the various departments of state government a power, or imposes an administrative duty or executive function, we do not believe that such plenary power can be exercised by including such changed procedures in sections of a general appropriation bill. The Alabama Constitution specifically states that a general appropriation bill can "embrace nothing but appropriations for the ordinary expenses of the executive, legislative, and judicial departments of the state, for interest on the public debt, and for public schools." Art. IV, § 71, Constitution of Alabama, 1901. Because House Bill 204, as amended and substituted, does embrace provisions other than appropriations, and because it was "so altered or amended on its passage through [the House of Representative] as to change its original purpose," as prohibited by Art. IV, § 61, Constitution of Alabama, 1901, we are of the opinion that House Bill 204, as amended and substituted, does violate Section 61 of the Alabama Constitution of 1901.
Your question 2—whether House Bill 204, as engrossed, contains more than one subject—is also answered in the affirmative.
General appropriation bills are excepted from the "one subject" requirement of Section
236 Ala. at 386, 182 So. at 457. See, also, Opinion of the Justices, No. 323, 512 So.2d 72 (Ala.1987), in which the Justices opined that "[a] statute has but one subject, no matter how many different matters it relates to, if they are all cognate, and but different branches of the same subject." Id. at 75, quoting Yielding v. State, 232 Ala. 292, 296, 167 So. 580, 583 (1936).
We are of the opinion that the infirmities contained in the general revenue bill held to be unconstitutional in Poyner are present in House Bill 204, as amended and substituted, because it states in its title that it makes appropriations for the ordinary expenses of various departments and agencies of state government, yet both provides and proscribes. Therefore, it is contrary to the purpose expressed in Section 45, to prevent the inclusion of matter in a bill that is incongruous with the title, a purpose that has been in many of the state's prior constitutions. See, Ex parte Pollard, 40 Ala. 77 (1866).
Even though a general appropriation bill is excepted in Section 45 of the Constitution, the courts nevertheless have applied the general purpose of that Section to revenue bills, as we have shown above, and to general appropriation bills as well. In Wallace State Community College v. Alabama Comm'n on Higher Educ., 527 So.2d 1310 (Ala.Civ.App.), cert. denied (Ala. 1988), the title of the act challenged stated that the act made "annual appropriations for the support, maintenance and development of public education in Alabama and for debt service and capital improvements for the fiscal year ending September 30, 1988." However, the act also provided for the creation of a physical therapy assistant program at Wallace State Community College. The Court of Civil Appeals held that this additional program was not mentioned in the title of the act and, thus, that "the title failed to apprise the public that the creation of a physical therapy assistant program was being considered or was contained in the bill." 527 So.2d at 1313.
Amended House Bill 204 is similar to the bill made the subject of the constitutional challenge in Wallace State Community College in that the title of House Bill 204 makes no mention of the substance of Sections 3 and 4, which limit the powers otherwise granted to state departments by Code provisions or statutes and also alter other provisions of law relating to the administration of the distribution and receipt of
Your question 3—whether House Bill 204 as engrossed embraces more than appropriations—is also answered in the affirmative.
Section 71 of the Constitution states that "The general appropriation bill shall embrace nothing but 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." Section 71 also provides, of course, "that the salary of no officer or employee shall be increased in such bill, nor shall any appropriation be made therein for any officer or employee unless his employment and the amount of his salary have already been provided for by law. All other appropriations shall be made by separate bills, each embracing but one subject." (Emphasis added.)
The intent of the people of Alabama, as expressed in Section 71, is clear. General appropriation bills should "embrace nothing but 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." This provision was first included as Art. IV, § 32, of the Constitution of 1875, and was brought forward into the Constitution of 1901, with minimal debate. We have examined some of the debates of the 1901 Constitutional Convention relating to Section 71; we find nothing there of substantial value in resolving the question you pose,
It would appear that a fair interpretation of this addition to Section 71 would be that appropriations should be made to agencies in the manner already provided for by law. Clearly, it would seem that the legislature should not be permitted to use a general appropriation bill as a means to repeal provisions of law establishing departments and agencies and granting to those departments and agencies the power to hire necessary employees and to make necessary purchases of equipment.
This Court has steadfastly adhered to the principle of law that an appropriations bill should include only matters that are cognate and germane to that purpose. In Alabama Education Association v. Board of Trustees of the University of Alabama,
374 So.2d at 262 (emphasis original).
Section 71 provides that the legislature may, by separate bill or bills, repeal laws that create and grant powers to the various departments and agencies of the state, unless prohibited from doing so by other provisions of the state or federal Constitution, of course, but the legislature cannot, in our opinion, in view of the prohibition so clearly expressed in Section 71, include such provisions in the general appropriations bill.
Based on the foregoing reasons, we express our opinion that House Bill 204, as amended and substituted, does violate Section 71 of the Constitution of Alabama, 1901.
Official Proceedings of the Constitutional Convention of the State of Alabama, Vol. II, p. 2518 (1940).