OPINION OF THE COURT
At point is whether the State Director of the Budget, acting as agent of the Governor, may refuse to spend $7 million appropriated by the Legislature to aid municipalities in operating and maintaining sewage treatment works. Responding to the issue, it is held that no authority inheres in the Governor under the State Constitution to impound funds appropriated by law and that the instant appropriation statute conferred no discretionary authority upon the Director of the Budget to disapprove otherwise proper.expenditures.
In this consolidated proceeding, petitioners, local municipalities and their representatives, assert that they have improperly been denied State reimbursement for the operation and maintenance of sewage treatment works.
Nonetheless, the Director of the Budget decided, apparently in early October, 1976, "to reduce the allocations made by the State for the maintenance and operation of local sewage treatment systems.” By letter dated October 7, 1976, the director explained that his "action in this matter is one instance of a necessarily comprehensive effort to tighten State spending.” Stated simply, then, the director refused to expend, or impounded, $7 million of the total appropriation. Special Term, while praising the endeavor to attain fiscal responsibility, held that the executive impoundment constituted an invasion of the legislative domain. A unanimous Appellate Division affirmed, on the opinion of Special Term.
On this appeal, the Budget Director, as well as the remaining respondents, points to no express provision of the
The constitutional argument, while simple, is fatally flawed. It is true, as respondents maintain, that opinions of this court have recognized the Governor’s constitutional obligation to propose a balanced budget (Wein v State of New York,
Given the absence of an obligation to maintain a balanced budget, the constitutional argument falters. For if the executive branch is under no duty to reduce expenditures or raise revenues in order to retain an equilibrium as the year progresses, it can hardly possess implied power unilaterally to "reduce” a lawful appropriation. It is not possible to speak of
Nor would the implication of executive power to impound funds be consistent with our constitutional form of government.
In budgetary matters, the essential process is detailed by the Constitution, and the role of each branch distinctly treated. To simplify, the Governor, as Chief Executive Officer of the State, is obligated to submit a complete budget plan to the Legislature for its consideration (NY Const, art VII, § 2; Saxton v Carey,
Here, the Legislature added $14 million to the Governor’s recommendation for the sewage treatment works reimbursement program. As a legislative addition, the $14 million was subject to executive veto. The Governor elected to approve the measure, however, and it became law. A duly enacted statute, "once passed, cannot be changed or varied according to the whim or caprice of any officer, board or individual. It remains fixed until repealed or amended by the Legislature” (Schumer v Caplin,
However laudable its goals, the executive branch may not override enactments which have emerged from the lawmaking process. It is required to implement policy declarations of the Legislature, unless vetoed or judicially invalidated. This the executive failed to do. The Budget Director’s "order does not direct that a [legislative] policy be executed in a manner prescribed by” the Legislature; rather, "it directs that [an executive] policy be executed in a manner prescribed by the [executive]” (Youngstown Co. v Sawyer,
This is not to say that the separation of powers doctrine creates a "captious, doctrinaire and inelastic classification of governmental functions” (People v Tremaine,
From a fiscal standpoint, it may be desirable to attempt to
Finally, contrary to respondents’ contention, the appropriation did not confer unfettered discretion upon the director to withhold all or any portion of the appropriation. Such a legislative delegation would be drastic indeed, and may not be inferred from ambiguous language. This is especially so in instances where the Legislature has provided no guidelines for the exercise of discretion (cf. Matter of Levine v Whalen,
In sum, under the State Constitution, the executive possesses no express or inherent power — based upon its view of sound fiscal policy — to impound funds which have been appropriated by the Legislature.
Accordingly, the order of the Appellate Division, insofar as appealed from, should be modified to the extent of converting this article 78 proceeding into an action seeking declaratory relief, and entering judgment in favor of petitioners declaring that the impoundment of $7 million of the appropriation described in this opinion was unconstitutional, and, as so modified, the order should be affirmed, with costs to petitioner.
Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur in Per Curiam opinion.
Order, insofar as appealed from, modified, with costs to petitioners, in accordance with the opinion herein and, as so modified, affirmed.
Notes
. The State assistance program was governed by ECL 17-1905 (subd 2) which, at the time, provided in pertinent part: "Within the limits of the annual appropriation made by the legislature, the commissioner shall apportion and approve for payment state assistance to each municipality which, by itself or in cooperation with one or more other municipalities or other governments, operates and maintains or is responsible for the payment of expenses for operation and maintenance of sewage treatment works during all or part of a fiscal year of such municipality, in accordance with qualifications for state assistance applicable to the operation and maintenance of such works. * * * Such state assistance, when apportioned among the municipalities
. Petitioners also challenged the Commissioner of Environmental Conservation’s manner of allocating available funds, contending that it discriminated against towns and counties while favoring large cities. Both Supreme Court and the Appellate Division agreed with petitioners’ position, and respondents do not now appeal from that determination. Accordingly, no opinion is expressed as to the propriety of the rates established by the commissioner.
. The appropriation expressly stated that: "The moneys hereby appropriated shall be available for payment of state aid heretofore accrued or hereafter to accrue to municipalities pursuant to the environmental conservation law and the public health law and shall be apportioned in accordance with regulations promulgated by the commissioner of environmental conservation and as approved by the director of the budget.” (L 1976, ch 53.)
. Respondents contend, apparently for the first time on this appeal, that the appropriation has lapsed by operation of law (see NY Const, art VII, § 7, which provides that "[n]o money shall ever be paid out of the state treasury * * * except in pursuance of an appropriation by law * * * within two years next after the passage of such appropriation act”). Whatever the merit of this position, upon which we express no opinion, it can no longer be said that respondents are under a legal duty which is "so clear as not to admit of reasonable doubt or controversy” (Matter of Burr v Voorhis,
. Even assuming the existence of a requirement that the budget remain in balance, which does not exist, respondents offer no explanation as to why this obligation would fall solely on the Governor, rather than being shared by the Legislature and the executive.
. Although certainly not dispositive of the proper interpretation of the New York Constitution, Federal courts have rebuffed claims that the Federal Constitution invests the president with inherent power to impound lawful appropriations (e.g., Guadamuz v Ash,