Abramson v. Hard , 229 Ala. 2 ( 1934 )

The bill in this case was filed September 28, 1933, against J. H. Hard, Jr., as state comptroller, and S. H. Blan, as state treasurer, to require proportionate payment under the provisions of the Budget and Financial Control Act, of the $500,000 appropriation for the public schools, and the sum of $1,500,000 appropriated to the Alabama Educational Trust Fund for the fiscal year beginning October 1, 1932, and the sum of $2,000,000 appropriated for such fund for each of the years beginning October 1, 1933, and October 1, 1934; appropriated by the act of the Legislature of Alabama approved November 9, 1932 (Acts 1932 [Ex. Sess.] p. 321).

The bill avers that no payment has been made upon either of said appropriations, but that a large number of other appropriations made by the General Appropriation Act approved November 9, 1932, have been and are being paid in full, including all of the appropriations for the expenses of the legislative and judicial departments of the state, and a large number of the expenses of the executive department.

The equity of the bill, and the right of appellants to the relief prayed, depend upon the intention of the Budget and Financial Control Act (Acts 1932 [Ex. Sess.] p. 35), as the appropriations of the act approved November 9, 1932, are made subject thereto.

Section 19 of the Budget Act provides: "The appropriations made shall not be available for expenditure until allotted as provided for in Section 20, except as may be otherwise provided in this Act. All appropriations now or hereafter made except per-capita appropriations now in force or hereafter made to Eleemosynary and correctional institutions and the Alabama School for Deaf and Blind at Talladega, Alabama, which appropriations shall remain in full force and effect and payable and disbursed as now provided by law are hereby declared to be maximum, conditional and proportionate appropriations, the purpose being to make the appropriations payable in full in the amounts named only in the event that the estimated budget resources during each fiscal year of the quadrennium for which such appropriations are made, are sufficient to pay all of the appropriations in full; the Governor shall restrict allotments to prevent an overdraft or deficit in any fiscal year for which appropriations are made by prorating without discrimination against any department, institution, commission or other State agency, the available revenues among the various departments, institutions, bureaus, boards, commissions and other State agencies." Acts Extra Session 1932, p. 35 [44], 19.

Section 20 of the Budget and Financial Control Act provides that: "Before an appropriation for administration, operation and maintenance of any department, institution, bureau, board, commission or other State agency shall become available, there shall be submitted to the Governor, not less than twenty days before the beginning of each quarter of each fiscal year, a requisition for an allotment of the amount estimated to be necessary to carry on its work during the ensuing quarter." Section 20 further provides that: "The Governor shall approve such allotments, or modifications thereof, as he may deem necessary," and that allotments thus made can be changed by the Governor upon his own initiative.

While the words "all appropriations" might include all appropriations made by the Legislature, it is manifest from the provisions of sections 19 and 20 of the Budget Act that they were not intended to have such a broad meaning, but that their meaning was restricted to appropriations required to be allotted by the Governor, and, therefore, that only such appropriations are required to be prorated. It is further manifest from such sections that the only appropriations required to be allotted are appropriations for the administration, operation, and maintenance of any department, institution, bureau, board, commission, or other state agency upon quarter requisitions for the amount estimated to be necessary to carry on its work during the succeeding quarter. All other appropriations are therefore available without any allotment, and so far as the provisions of the act are concerned, may be paid in full.

It is impossible to believe that it was intended that the quarterly requisitions and the other allotment provisions of the Budget Act must be complied with before appropriations for fixed salaries of state officers can become available. They are wholly inapplicable to such appropriations. That such allotment provisions were not intended to be applied to such salaries is shown by the act of the Legislature approved April 14, 1933 (Acts 1933 [Ex. Sess.] p. 124), containing only appropriations for the fixed salaries of state officers and employees, etc., without any reference to the Budget and Financial Control Act. The fact that the act approved November 9, 1932 (Acts 1932 [Ex. Sess.] p. 321), containing appropriations for the fixed salaries of state officers and also appropriations for different departments or agencies of the state government, contained a provision subjecting the appropriations to the terms and conditions of the Financial Control Act, while such provision is omitted from the act of 1933 containing appropriations for salaries, only authorizes the conclusion that the omission was because the salaries of the state officers were not intended to be subject to allotment or proration. This conclusion is confirmed and allotment and prorating of salaries negatived by the provision of the act of 1933 (Acts 1933 [Ex. Sess.] page 124), that "The annual salaries of the officers and employees of the State of Alabama hereinafter named shall be the amounts hereinafter set opposite the respective offices, positions and employments, and shall be payable in equal monthly installments." And the Code of Alabama provides that they shall be paid on the last day of each month. The entire annual salary is to be paid in equal monthly installments on the last day of each month and not at such times and in such amounts as the Governor may approve to be necessary.

The purpose of the amendment to the Constitution designated as article 23 (see Acts 1933 [Ex. Sess.] p. 196) was to prevent another deficit in the state treasury. This it intends shall be done by prohibiting the issue of warrants by the state comptroller upon the state treasurer, "unless there is in the hands of such Treasurer money appropriated and available for the full payment of the same"; and by providing that: "In case there is, at the end of any fiscal year, insufficient money in the State Treasury for the payment of all proper claims presented to the State Comptroller for the issuance of warrants, the Comptroller shall issue warrants for that proportion of each such claim which the money available for the payment of all of said claims bears to the whole, and such warrants for such prorated sums shall thereupon be paid by the State Treasurer. At the end of each fiscal year all unpaid appropriations which exceed the amount of money in the State Treasury subject to the payment of the same after the proration above provided for, shall thereupon become null and void to the extent of such excess." See Acts 1933 [Ex. Sess.] pp. 196, 197, § 1.

Subject only to the limitation of the amendment that if the appropriations by the Legislature in any fiscal year are greater than the money in the treasury in such year can pay, they shall be void as to the excess, the power of the Legislature to appropriate the money raised by taxation remains as before the adoption of the amendment. The Legislature may therefore determine what appropriations are most essential for the discharge of the duties imposed upon it by the Constitution, and make such appropriations absolute and payable in full; and make other appropriations not deemed so essential to the public welfare payable in full only in the event that the money in the treasury is sufficient to pay all appropriations in full, and if not sufficient to subject such appropriations to allotment and proration as provided in the Budget and Financial Control Act. Smith v. Speed, 50 Ala. 276. It follows, therefore, that the appropriations made by the Legislature not within the Budget and Financial Control Act, and which the Legislature intends to be paid absolutely and in full, are not to be prorated under the amendment, except in the event that the money in the state treasury at the end of the fiscal year available for the payment of such appropriations should be insufficient to pay them in full; in which event they must be prorated but only as between such appropriations, for under the acts of the Legislature they would then constitute the only "proper claims" to be presented and paid.

The Budget Act, as has been seen plainly, provides that all appropriations for the administration, operation, and maintenance of any department, institution, bureau, board, commission, or other state agency, shall be maximum, conditional, and proportionate, to be paid in full only in the event that the estimated budget resources during each fiscal year of the quadrennium for which such appropriations are made, are sufficient to pay all of the appropriations in full, without discrimination between them, and that the total amount of the annual appropriation to any department, institution, or agency shall not be reduced, except proportionately, as provided in section 19. Acts Extra Session 1932, p. 35 [44], § 19.

The only exception made by the act to these provisions is "per-capita appropriations now in force or hereafter made to Eleemosynary and correctional institutions and the Alabama School for Deaf and Blind at Talladega, Alabama." It follows, therefore, that upon proper requisition to the Governor, the educational appropriations of the act approved November 9, 1932, alleged in the bill, are entitled to a pro rata payment with the appropriations for all other departments, institutions, bureaus, boards, commissions, or other State agencies, without any discrimination between them; and the failure to pay such educational appropriations their pro rata share, according to the provisions of the act would be a clear violation of the provision of the Budget Act, that such appropriations should not be reduced except proportionately as therein stated, and also a plain violation of the provision of such act that such appropriation should not be paid in full unless the estimated budget resources were sufficient to pay all appropriations in full.

The amount, and therefore the sufficiency, of the appropriations for the proper administration, maintenance, and operation of the legislative, judicial, and executive departments of the state, and for securing the guaranties of the Bill of Rights, varying from time to time, was necessarily left to the discretion of the Legislature, and no other department of the state government has the power to decrease or diminish any of its appropriations therefor. Therefore the selection by another department of certain appropriations within the Budget Act to be paid in full, when the resources of the treasury are insufficient to pay all other appropriations in full, constituted an increase in the appropriations made by the Legislature for the selected departments, and an exercise of legislative authority.

Appropriations for the administration, operation, or maintenance of any department or other state agency would manifestly authorize the payment of the ordinary expenses of such department or other state agency therefrom, for otherwise it could not operate. We see no reason, therefore, for excluding "ordinary expenses" from their meaning, whether the expenses are provided for by general appropriation, or by appropriations for specific items thereof.

The Budget and Financial Control Act provides that a requisition must be made to the Governor before any appropriation shall become available. It does not appear from the bill that there has been any requisition submitted to the Governor for allotment of the educational appropriations unpaid; therefore, the bill does not show that any relief could be granted thereon, it not appearing from any averment of fact that the illegal act of paying in full other appropriations contrary to the Budget and Financial Control Act will be continued after October 1, 1933, or that there will be any necessity for an apportionment and the right to relief for the fiscal year 1932 is now a moot question.

Affirmed.

All the Special Justices concur.

MULKEY, MARTIN, and CAFFEY, Special Justices, concur in the conclusion and state their views in separate opinions.