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11/08/77 OPINION JUSTICES TO GOVERNOR

November 8, 1977

OPINION OF THE JUSTICES TO THE GOVERNOR


Edward F. Hennessey, Francis J. Quirico, Robert Braucher, Benjamin Kaplan, Herbert P. Wilkins, Paul J. Liacos, Ruth I. Abrams.

SYLLABUS BY THE COURT

Constitutional Law, Appropriation of money, General Court, Governor. General Court. Governor.

A rewriting of an item in the general appropriation bill of the Legislature by a section of a supplementary appropriation act adding no new money and concluding "prior appropriation continued," and a "further" amendment of the same item by a subsequent section of the supplementary appropriation act adding words restricting the use of funds thereunder, in substance and effect struck out the item in the precise form previously enacted and added a single new item under the same heading, incorporating the changes made by both such sections; the effect of a disapproval of the new item by the Governor would be to leave the item in effect as previously enacted in the general appropriation bill. [913-914]

The Governor, acting pursuant to § 5 of art. 63 of the Amendments to the Massachusetts Constitution, can disapprove a section of a supplementary appropriation act which amends an item of the general appropriation bill by inserting a restriction on such item. [914-915]

On November 8, 1977, the Justices submitted the following answer to a question propounded to them by the Governor.

To His Excellency, the Governor of the Commonwealth:

The Justices of the Supreme Judicial Court respectfully submit their answer to the question set forth in the request of the Governor, dated November 1, 1977, for an advisory opinion relating to a bill, House No. 6596, pending before him. A copy of the bill was transmitted with the request. The bill is entitled "An Act supplementing certain items in the general appropriation act for the fiscal year nineteen hundred and seventy-eight and providing for certain new activities and projects."

The bill would make certain supplementary appropriations, subject to the conditions in St. 1977, c. 363A, the general appropriation act for the current fiscal year, and would amend various provisions of c. 363A. Sections 4, 5, 6 and 7 of the bill would amend four items in c. 363A by adding to each of those items a proviso "that no funds authorized under this item shall be allowed to pay for abortions not necessary to prevent the death of the mother."

The question is:

"Can the governor, acting pursuant to the powers contained in Amendment Article 63, section 5, of the Massachusetts Constitution, disapprove sections four through seven of H. 6596?"

We invited the submission of briefs and received briefs on behalf of the Governor, and on behalf of the American Federation of State, County and Municipal Employees, AFL-CIO, supporting a "Yes" answer; and briefs on behalf of certain members of the House of Representatives, and on behalf of the counsel to the House of Representatives, supporting a "No" answer.

The history and purpose of art. 63 are discussed in Opinion of the Justices, 349 Mass. 804, 805-807 (1965), and authorities cited. The governing provision is § 5: "The governor may disapprove or reduce items or parts of items in any bill appropriating money. So much of such bill as he approves shall upon his signing the same become law. . . ." Without such a provision, the Governor "may be obliged to veto an entire bill merely on account of one item which does not meet his approval." 3 Debates in the Massachusetts Constitutional Convention 1917-1918, at 1146 (1918). See Commonwealth v. Barnett, 199 Pa. 161, 171-177 (1901). Item veto provisions in the Constitutions of forty-three States are cited in Note, 18 Drake L. Rev. 245 (1969).

In Opinion of the Justices, 294 Mass. 616, 620-621 (1936), we construed the phrase "items or parts of items" to refer to "separable fiscal units." "No power is conferred," we said, "to change the terms of an appropriation except by reducing the amount thereof. Words or phrases are not 'items or parts of items.' . . . We are of opinion that the power conferred upon him [the Governor] by said art. 63 does not extend to the removal of restrictions imposed upon the use of the items appropriated."

That opinion would be directly applicable here if the bill appropriated a specific sum, for example, for a medical assistance program, and provided either as part of the item or in a separate section that none of the funds authorized under the item should be used to pay for abortions. In such a case the Governor could disapprove the entire bill, or he could disapprove or reduce the specific item. Cf. Opinion of the Justices, 306 A.2d 720, 723-724 (Del. 1973) (purported veto of restriction resulted in ...


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