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Bob Ferguson

AGO 1950 No. 268 -
Attorney General Smith Troy


The legislature may not authorize a committee to change the objects of appropriations nor to control the expenditure of funds appropriated.

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                                                                    May 2, 1950

Representative Vaughan Brown
210 Medical Building
Bellingham, Washington                                                                                                              Cite as:  AGO 49-51 No. 268

Dear Sir:

            Receipt is acknowledged of your letter of April 21, 1950, in which you make the following request:

            "I would like your opinion on whether there is anything unconstitutional, either because of an unconstitutional delegation of powers or otherwise in legislation that would substantially authorize the Legislative Council with the concurrence of the State Finance Committee (or vice versa) during the interim between sessions to make any or all of the following changes in legislative appropriations:

            "1. To change appropriations in the same office from one purpose or classification to another.

            "2. To make changes between offices in the same classification, that is, for instance to take building money allotted to the Highway Patrol and give it to the schools or to take salary from the Attorney General's office and give it to the Secretary of State.

             [[Orig. Op. Page 2]]

            "3. To make changes in appropriations without any limitations except that the total amount appropriated could not be increased.

            "If the foregoing is unconstitutional, would the position be changed by substituting the Governor for the State Finance Committee?  Also, if none of the foregoing are constitutional, would there be any objection to placing the emergency funds now put under the control of the Governor, to be allocated as he sees fit, under the control of the Legislative Council or leave them under the Governor's control but requiring the approval of the Legislative Committee before an allocation is made?"

            Our conclusions may be summarized as follows:

            The constitution would not permit the legislature to delegate the authority to any committee or officer to change an appropriation made by the legislature, nor could the legislative council assume the control of the emergency funds.


            The appropriation of money by the legislature is governed by Amendment 11 to the State Constitution which reads:

            "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 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."  (Emphasis supplied)

             [[Orig. Op. Page 3]]

            It will be noted that the constitutional requirement is that the law making the appropriation shall specify the sum appropriated and the object to which it is to be applied.  The legislative council or any committee is not the legislature.  Consequently, it may not make or change a law making an appropriation or specifying its object.

            "* * * The legislative power is vested exclusively in the legislature except so far as modified by the initiative and referendum provisions, and cannot be surrendered or delegated or performed by any other agency.  * * * "Uhden Inc. v. Greenough, 181 Wash. 412, 43 P. (2d) 983.

            Our Supreme Court has on numerous occasions said:

            "'The legislature cannot delegate its power to make a law; but it can make a law to delegate a power to determine some fact or state of things upon which the law makes, or intends to make, its own action depend.'"  Spokane Hotel Co. v. Younger, 113 Wash. 359, 194 Pac. 595; Vail v. Seaborg, 120 Wash. 126, 207 Pac. 15;State v. Oregon-Washington Railroad and Navigation Company, 128 Wash. 365, 223 Pac. 600;Carstens v. DeSellem, 82 Wash. 643, 144 Pac. 934.

            The legislature might make an appropriation whose availability could be contingent upon the finding by some administrative officer or board of the existence of some fact, or state of affairs but it could not delegate the determination of the object for which the appropriation may be spent.  Since the object for which the sum appropriated is required by the Constitution to be stated in the law, we see no manner in which appropriations could be changed from one object to another by any agency except the legislature, itself.  A law vesting in the legislative council or the State Finance Committee, the right to change the objective of legislative appropriations would, in our opinion, constitute an unlawful delegation of legislative authority.

            The situation would be no different if the Governor were substituted for the State Finance Committee.  A determination of the object of the appropriations is the responsibility of the legislature under the Constitution and may not be delegated.

             [[Orig. Op. Page 4]]

            As to whether there would be any objections to placing the emergency fun, now under the control of the Governor, under the control of the legislative council or leaving it under the Governor's control but requiring the approval of a legislative committee before an allocation could be made, an additional constitutional obstacle arises in the assumption of executive functions by the legislature.  A case closely in point isPeople v. Tremaine, 252 N.Y. 27, 168 N.E. 817, where the New York Court of Appeals had before it a situation whereby the legislature made lump sum appropriations with the express provision that no part of the appropriation should be expended, except upon the approval of the Governor and the chairman of the Senate Finance Committee and the chairman of the Assembly Ways and Means Committee.  The principal question raised was whether the legislature could constitutionally attach to the appropriations the condition requiring approval by the two chairmen.  The court held that the designation of the chairmen to approve the allocations amounted to the making of civil appointments by the legislature.  In reply to the contention that the duties so attempted to be conferred were reasonably incidental to the performance of their duties as members of the legislature, the court said that the new duties were administrative and that the legislature attempted to make two of its members ex-officio, its executive agents to carry out the law.  The court further pointed out that if the appointment should be regarded as legislative in character, rather than administrative, they were void as unauthorized delegations of legislative power over appropriations.  The New York court held that the law was invalid when it required members of the legislature to pass upon expenditures.

            We believe that the New York case is illustrative of the general law applicable here.  See Annotation 91 A.L.R. 1511.  Any attempt by the legislature to control the expenditures of money by the Governor would be a usurpation of executive authority by the legislative body and members of the legislature appointed to any committee exercising such functions would be receiving an appointment to a civil office created during their term and would be ineligible therefor under section 13, Article II of the Constitution.

            It is our opinion that the legislature may not authorize any committee to change the object of appropriations made by law nor may any committee of the legislature control the expenditure of funds appropriated.  The same conclusion applies to both emergency funds and others.

Very truly yours,

Attorney General

Assistant Attorney General