892 So. 2d 332 | Ala. | 2004
The Honorable Bob Riley Governor of Alabama State Capitol Montgomery, Alabama 36130
Dear Governor Riley:
We have received your letter requesting an advisory opinion as to whether House Bill 50 and Senate Bill 133 impermissibly extend the powers of the Legislature in violation of the separation-of-powers provisions, §§
In issuing advisory opinions, the members of this Court consider in the abstract the question submitted for consideration, without adverse parties and without the benefit of briefing or of an actual case or controversy; in an actual case or controversy, we might reach a different conclusion. SeeOpinion of the Justices No. 188,
"The powers of the government of the State of Alabama shall be divided into three distinct departments, each of which shall be confided to a separate body of magistracy, to wit: Those which are legislative, to one; those which are executive, to another; and those which are judicial, to another."
Ala. Const. of 1901, §
"In the government of this state, except in the instances in this Constitution hereinafter expressly directed or permitted, the legislative department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them; the judicial shall never exercise the legislative and executive powers, or either of them; to the end that it may be a government of laws and not of men."
Ala. Const. of 1901, §
In Monroe v. Harco, Inc.,
"Article
III of the Alabama Constitution of 1901 creates the framework for the division of powers between the State's legislative, executive, and judicial branches. Each branch within our tripartite governmental structure has distinct powers and responsibilities, and our Constitution demands that these *335 powers and responsibilities never be shared."
Monroe,"`"[t]he true test and distinction whether a power is strictly legislative, or whether it is administrative, and merely relates to the execution of the statute law, `is between the delegation of power to make the law, which necessarily involves a discretion as to what it shall be, and conferring authority or discretion as to its execution to be exercised under and in pursuance of the law.' The first cannot be done. To the latter, no valid objection can be made."'"
Thus, House Bill 50 reflects a legislative decision to remove from the governor the discretion to make these appropriation transfers — a power the Legislature granted to the governor when it originally enacted §
Monroe,"`"[t]he true test and distinction whether a power is strictly legislative, or whether it is administrative, and merely relates to the execution of the statute law, `is between the delegation of power to make the law, which necessarily involves a discretion as to what it shall be, and conferring authority or discretion as to its execution to be exercised under and in pursuance of the law.' The first cannot be done. To the latter, no valid objection can be made."'"
The decision of the Supreme Court of the United States inTrain v. City of New York,
Similarly, the Legislature may grant the governor discretion in the appropriation of funds, or the Legislature may require that all funds appropriated for a certain purpose be spent for that purpose. Thus, House Bill 50 is not an improper exercise of the Legislature's plenary power to enact legislation, so long as it is not applied to interfere with the discretion inherent in the power of the executive branch to execute the law.
"(j)(1)a. If the committee has not approved the contract at the conclusion of the 120-day period and if the Legislature is in regular or special session at that time, consideration of the contract shall be referred to the Legislature. The ranking House member of the Contract Review Permanent Legislative Oversight Committee shall introduce a joint resolution expressing legislative approval of the contract. The joint resolution shall be assigned by the officer with such authority to the House of Representatives Education Finance and Appropriations Committee, or its successor, or the House of Representatives Government Finance and Appropriations Committee, or its successor, as appropriate. If reported favorably by the committee, the joint resolution of approval may be adopted by the House of Representatives in the same manner as other joint resolutions in the House of Representatives.
"b. If the joint resolution of approval is adopted by the House of Representatives, *337 it shall be transmitted to the Senate and shall be carried by the ranking Senate member of the Contract Review Permanent Legislative Oversight Committee. The joint resolution shall be assigned by the officer with such authority to the Committee on Finance and Taxation Education, or its successor, or the Committee on Finance and Taxation General Fund, or its successor, as appropriate. If favorably reported by the committee, the joint resolution of approval may be adopted by the Senate in the same manner as other joint resolutions in the Senate.
"c. If adopted by both houses, the joint resolution of approval shall be presented to the Governor for approval.
"d. If the joint resolution of approval is approved by the Governor within 30 days of the date the joint resolution is introduced in the House of Representatives, the contract is effective according to the terms of the contract.
"e. If the joint resolution of approval is not adopted by both houses and approved by the Governor within the 30-day period, the contract is void ab initio.
"f. Pending legislative and gubernatorial approval specified in this subdivision, the contract may not go into effect.
"(2)a. If the committee has not approved the contract at the conclusion of the 120-day period and the Legislature is not in regular or special session, the contract shall be referred to the Legislative Council.
"b. The Legislative Council, by majority vote, shall either approve or disapprove the referred contract. If the contract is approved, the contract shall take effect pursuant to the terms of the contract. If the contract is disapproved, the contract is void ab initio. Pending action by the Legislative Council concerning a referred contract, the contract may not go into effect. Failure by the Legislative Council to approve or disapprove the contract within 20 days of receipt shall be deemed a disapproval of the contract."
Senate Bill 133 thus requires legislative approval and gubernatorial consent of all contracts subject to review pursuant to §
We understand Senate Bill 133 in its essence, however, to permit either the House or the Senate, through action or inaction, effectively to veto a contract entered into by the executive branch for the purpose of carrying out its executive function.4 If we do not miscomprehend the *338
practical effect of Senate Bill 133, it is our opinion that it would impermissibly interfere with the core executive power, and, therefore, would be unconstitutional.5 Pursuant to Senate Bill 133, the Legislature retains the right to approve all contracts subject to review under §
It is imperatively the function of the Legislature to exercise discretion as to what the law will be, but it is imperatively the function of the executive branch to exercise such discretion as is necessary to effectively carry out those laws. See TheFederalist No. 75, supra; Monroe, supra. Thus, in carrying out the executive function of implementing a statute, the executive branch has the power, subject to the parameters of the statute, to enter into contracts to execute the statute. To the extent that Senate Bill 133 may interfere with the core power of the executive branch to execute the laws enacted by the Legislature, Senate Bill 133 would exceed the power of the legislative branch.7
QUESTIONS ANSWERED.
Respectfully submitted,
/s/ J. Gorman Houston, Jr. Acting Chief Justice
/s/ Harold See Harold See
/s/ Jean W. Brown Jean W. Brown
/s/ Douglas Inge Johnstone Douglas Inge Johnstone
/s/ Robert B. Harwood, Jr. Robert B. Harwood, Jr.
/s/ Lyn Stuart Lyn Stuart Associate Justices
Honorable Bob Riley Governor of Alabama State Capitol Montgomery, Alabama 36130
Dear Governor Riley:
We have received your letter requesting an advisory opinion pursuant to §
Article
"The powers of the government of the State of Alabama shall be divided into three distinct departments, each of which shall be confided to a separate body of magistracy, to wit: Those which are legislative, to one; those which are executive, to another; and those which are judicial, to another."
(Emphasis added.) Article III, § 43, provides:
"In the government of this state, except in the instances in this Constitution hereinafter expressly directed or permitted, the legislative department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them; the judicial shall never exercise the legislative and executive powers, or either of them; to the end that it may be a government of laws and not of men."
(Emphasis added.) Article V, § 113, provides:
"The supreme executive power of this state shall be vested in a chief magistrate, who shall be styled `The Governor of the State of Alabama.'"
(Emphasis added.)
A very similar question was presented to the New Hampshire Supreme Court in Opinion of the Justices No. 87-314,
"There shall be a supreme executive magistrate, who shall be styled the Governor of the State of New Hampshire, and whose title shall be His Excellency."
(Emphasis added.) In declaring that the budget footnotes were an unconstitutional encroachment by the legislative branch *341
upon the executive branch of government, the New Hampshire Supreme Court first turned to a separation-of-powers clause in the New Hampshire Constitution that is quite similar to Art.
"The nature of the duty — the exercise of judgment and discretion in the making of contracts — indicates that it is not exclusively a legislative duty, while no one would claim that it is a judicial duty. Hence, the conclusion would seem to follow necessarily, that it is an executive duty which the legislature had the power to impose upon the governor as the `supreme executive magistrate' of the state."Id. The New Hampshire Supreme Court's view of the supremacy of executive authority in the matter of making contracts for the expenditure of the State's funds is in the mainstream of American jurisprudence. In recognizing that other states considering the question shared its views, the court referred to several other jurisdictions that had reached the same result. The New Hampshire Supreme Court noted:
"In so holding, we come to the same conclusion that other courts have reached when confronted with questions similar to those posed to us. Alexander et al. v. State,Id. at 197-98.441 So.2d 1329 ,1341 (Miss. 1983) (`Once taxes have been levied and appropriation made, the legislative prerogative ends and executive responsibility begins. . . .'); State ex rel. McLeod, Atty. Gen. v. McInn[i]s et al.,278 S.C. 307 ,317 ,295 S.E.2d 633 ,637 (1982) (`[A]dministration of appropriations . . . is the function of the executive department.'); Anderson v. Lamm,195 Colo. 437 ,447 ,579 P.2d 620 ,627 (1978) (`[T]he requirement for Joint Budget Committee approval unconstitutionally infringes upon the executive's power to administer appropriated funds.'); In re Opinion of the Justices to the Senate, [375 Mass. 827 ,]376 N.E.2d 1217 ,1222 (Mass. 1978) (`[T]he activity of spending money is essentially an executive task.'); State ex rel. Schneider v. Bennett,219 Kan. 285 ,301 ,547 P.2d 786 ,797 (1976) (State Finance Council overseeing use of budget appropriations held to be an unconstitutional encroachment on powers of the executive); In re Opinion of the Justices to the Governor,369 Mass. 990 ,341 N.E.2d 254 ,257 (1976) (`[T]o entrust the executive power of expenditure to legislative officers is to violate [the mandated separation of powers] by authorizing the legislative department to exercise executive power.'); State ex rel. Meyer v. State Board,185 Neb. 490 ,500 ,176 N.W.2d 920 ,926 (1970) (`[The legislature] cannot through the power of appropriation exercise or invade the constitutional rights and powers of the executive branch of the government. It cannot administer the appropriation once it has been made.'); People v. Tremaine,252 N.Y. 27 ,56 ,168 N.E. 817 ,827 (1929) (Crane, J., concurring) (holding unconstitutional a requirement that a legislative committee sit with the governor in decisions regarding spending of money on state buildings (see separate opinion of Justice Crane))."
This Court has not hesitated to advise the governor that his proposed actions *342
have invaded the Legislature's province. See Opinion of theJustices No. 86,
We therefore respond to the question whether SB 133 violates Art.
ONE QUESTION DECLINED; ONE QUESTION ANSWERED.
Respectfully submitted,
/s/ Champ Lyons, Jr. Champ Lyons, Jr.
/s/ Thomas A. Woodall Thomas A. Woodall Associate Justices
"`It establishes a salutary check upon the legislative body, calculated to guard the community against the effect of faction, precipitancy, or of any impulse unfriendly to the public good which may happen to influence a majority of that body. . . . The primary inducement to conferring the power in question upon the Executive is to enable him to defend himself; the secondary one is to increase the chances in favor of the community against the passing of bad laws through haste, inadvertence, or design.'"Chadha,
"to the same conclusion that other courts have reached when confronted with questions similar to those posed to us. Alexander et al. v. State,Opinion of the Justices No. 87-314,441 So.2d 1329 ,1341 (Miss. 1983) (`Once taxes have been levied and appropriation made, the legislative prerogative ends and the executive responsibility begins. . . .'); State ex rel. McLeod, Atty. Gen. v. McInn [i]s et al.,278 S.C. 307 ,317 ,295 S.E.2d 633 ,637 (1982) (`[A]dministration of appropriations . . . is the function of the executive department.'); Anderson v. Lamm,195 Colo. 437 ,447 ,579 P.2d 620 ,627 (1978) (`[T]he requirement for Joint Budget Committee approval unconstitutionally infringes upon the executive's power to administer appropriated funds.'); In re Opinion of the Justices to the Senate, [375 Mass. 827 ,]376 N.E.2d 1217 ,1222 (Mass. 1978) (`[T]he activity of spending money is essentially an executive task.'); State ex rel. Schneider v. Bennett,219 Kan. 285 ,301 ,547 P.2d 786 ,797 (1976) (State Finance Council overseeing use of budget appropriations held to be an unconstitutional encroachment on powers of the executive); In re Opinion of the Justices to the Governor,369 Mass. 990 ,341 N.E.2d 254 ,257 (1976) (`[T]o entrust the executive power of expenditure to legislative officers is to violate [the mandated separation of powers] by authorizing the legislative department to exercise executive power.'); State ex rel. Meyer v. State Board,185 Neb. 490 ,500 ,176 N.W.2d 920 ,926 (1970) (`[The legislature] cannot through the power of appropriation exercise or invade the constitutional rights and powers of the executive branch of the government. It cannot administer the appropriation once it has been made.'); People v. Tremaine,252 N.Y. 27 ,56 ,168 N.E. 817 ,827 (1929) (Crane, J., concurring) (holding unconstitutional a requirement that a legislative committee sit with the governor in decisions regarding spending of money on state buildings (see separate opinion of Justice Crane))."