Legislature may make appropriation to pay salary earned in previous biennium.
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January 27, 1955
Honorable Ole H. Olson
Chairman, House Appropriation
Olympia, Washington Cite as: AGO 55-57 No. 17
By letter as previously acknowledged you have requested the opinion of this office upon the following question: Can salaries for services rendered to a college of education during June of 1955 be paid in July and August following, from an appropriation for the fiscal biennium beginning on July 1, 1955?
In our opinion, such salaries could be paid from an appropriation made for the 1955-1957 biennium, if such an intention were specifically indicated by the legislature.
Article VIII, § 4, now the 11th Amendment, of the Constitution provides that
"No moneys shall ever be paid out of the treasury of this state, or any of its funds, or any of the funds under its management, except in pursuance of an appropriation by law; nor unless such payment be made within one calendar month after the end of the next ensuing fiscal biennium, and every such law making a new appropriation, or continuing or reviving an appropriation, shall distinctly specify the sum [[Orig. Op. Page 2]] appropriated, and the object to which it is to be applied, and it shall not be sufficient for such law to refer to any other law to fix such sum."
This is not a situation in which a payment is to be made from an appropriation more than a month after the end of the biennium. Nor is it a deficiency appropriation, although nothing in the Constitution prohibits deficiency appropriations. A deficiency appropriation is analagous in that the sum made available is intended to pay expenses incurred in the previous biennium which were in excess of an appropriation.
Also analagous is the situation presented by what is commonly called a "reappropriation." An appropriation made during the preceding biennium may not have been exhausted, but the funds represented thereby would become unavailable by reason of the lapse of the original appropriation. The 11th Amendment of course prevents "continuing appropriations". SeeState ex rel. Davis v. Clausen, 160 Wash. 618, and cases cited therein. Our office has held that a "reappropriation" may be applied to the payment of obligations incurred during the previous biennium, in an opinion for the Director of Highways on January 12, 1942, a copy of which is attached. In the opinion we said that
"In arriving at this conclusion we are not unmindful of those decisions holding that claims arising from contracts made or work done during one biennium may not be paid from appropriations in the succeeding biennium. (State v. Moore, 37 Neb. 229, 55 N.W. 635; State v. Marsh, 111 Neb. 185, 196 N.W. 130) But that rule has its exception under constitutional provisions similar to ours. The legislature can provide for payment of obligations incurred during a past bienniumif they make provision therefor, which we believe has been done in the problem under consideration.
"The view taken herein we believe is supported by the following cases: Callaghan v. Boyce, 17 [[Orig. Op. Page 3]] Ariz. 433, 153 Pac. 773; and State v. Board of Public Works, 36 Ohio St. 409." (Emphasis supplied)
The language underscored in the quotation of course refers to compliance with the requirement of the 11th Amendment that an appropriation
"* * * shall distinctly specify the sum appropriated, and the object to which it is to be applied, * * *"
which in turn is merely to say that the legislative intent must be clear and certain. SeeMason-Walsh-Atkinson-Kier Co. v. Department of Labor & Industries, 5 Wn. (2d) 508, and cases cited therein.
It may be that your concern in connection with this question stems from AGO 51-53 No. 412 [[to Ole H. Olson, Legislative Budget Committee on October 7, 1952]], indicating that the statutory authorization of the legislative budget committee did not permit expenditure of an appropriation which it anticipated would be made by the next legislature. Nothing contained therein would affect the power of the legislature to make the kind of appropriation now under consideration; nor do we see any obstacle to the payment of the salaries mentioned from such an appropriation if made. A copy of AGO 51-53 No. 412 is attached for your comparison.
We hope the foregoing comments will prove to be of assistance to you.
Very truly yours,
A. J. HUTTON, JR.
Assistant Attorney General