sion not to be a condition or limitation. Several 1981 Massachusetts decisions serve to illustrate the technique. In those rulings the court established that the governor could veto as an "item" any separable provision attached to a general appropriation bill and that such provision may appear as a line item as well as a separate section of such a bill.33 The court also announced it would continue to adhere to the rule that the governor could not disapprove the provision alone but had to approve the entire item, or disapprove or reduce the entire item.34 It declared that its decision was following the "majority view" of the definition of a qualification "that where a provision of an appropriation bill does not direct the way an appropriation is to be used or qualify the appropriation, the provision is separable and susceptible to item veto. Stated another way: to determine whether provisions were validly disapproved by the Governor, we must consider whether their deletion altered the purposes of the appropriation or eliminated valid restrictions or conditions." 35 In the case at bar, the governor vetoed provisions of appropriations for the operations of housing courts in various jurisdictions which directed that the head of such courts should be the incumbent administrative justice of that jurisdiction. The court held the vetoes valid, reasoning that the deletion neither affected the object of the legislature to provide funds for the operation of the courst nor constituted restrictions or conditions on the expenditure of funds.36

The interpretive technique was also demonstrated in Brown v. Firestone.37 In 1968 Florida's constitution was amended so as to overrule a judicial ruling that allowed an item veto of restrictions and qualifications.38 Now the governor "may veto any specific appropriation in a general appropriation bill, but may not veto any qualification or restriction without also vetoing the appropriation to which it relates." The court defined a specific appropriation as "an identifiable, integrated fund which the legislature has allocated for a specific purpose." Therefore, it said, with regard to the exercise of the item veto, "a specific appropriation is the smallest identifiable fund to which a qualification or restriction is or can be directly or logically related." Applying these precepts, the court made the following rulings: (1) the veto of a provision directing the Corrections Department to phase back the inmate count at a designated facility was invalid since there was no identifiable fund within the qualifications and thus the qualification was not itself a specific appropriation; (2) the veto of proviso directing that $2.6 million of an appropriation for a medical center be used to establish a teaching hospital program was valid because it was a specific appropriation; (3) the veto of a proviso to fund up to $100,000 in salaries for additional personnel for the Division of Corporations upon the happening of certain contingencies was invalid because the $100,000 did not comprise a specific appropriation. It was not "an identifiable fund allocated for a specified purpose, but rather a

33 Opinion of the Justices, 384 Mass. 820 (1981); Opinion of the Justices, 384 Mass. 828 (1981). 34 Opinion of the Justices, 384 Mass. 511 (1981).

35 384 Mass. at 515-16.

36 384 Mass. at 515.

37 392 So. 2d 654 (1980).

38 Green v. Rawls, 122 So. 2d 10 (Fla. 1960).

contingent transfer of monies from the deficiency fund to item 1131"; (4) the veto of a direction to spend $2.02 million on named parks as priority projects was valid since the "smallest identifiable fund to which the qualification relates is the $2.02 million contained within it, thus the qualification comprises a specific appropriation;" and 95) the vetoes of directions to spend $2.5 and $10 million on books and scientific equipment were valid as specific appropriations. The consequence of each valid veto is the commensurate reduction of the budget allocation. It would appear, then, that in Florida the veto may be evaded by a lump sum appropriation or by verbal qualifications.39

Several jurisdictions have developed a "separate and severable" rule. The courts in these will uphold a veto where it deems a provision not integral to the appropriation or that it would not affect the bills primary purpose.40 In one case, however, the court admitted it based its ruling on pure semantics. Noting that the provision in question did not explicitly place a prohibition against the use of monies for the purposes involved, as did the provision immediately proceeding it, the court stated, "Had such language as used in section 4 been employed in section 5 we are impelled to the view that section 5 would have in such case been a proviso or condition upon the expenditure of the funds appropriated, but lacking such phraseology it is not. 41

Finally, a number of state high court decisions place minimal or no limits on the ability of an executive to veto conditions. In West Virginia "the Governor has the authority to delete language of purpose or condition from an item and thereby accomplish a disapproval of part of an item." The only limitation is that one must be able to determine from what remains what it is to be used for: "he may not exercise [the veto] in a manner which will permit him to retain an appropriated amount without an ascertainable classification of subject or purpose.'

"42

The New Jersey Supreme Court has gone at least as far; allowing a selective veto for any subject included within an appropriations act which is broadly related to the state's fiscal affairs as reflected in such act:

Fairly read, that clause empowers the Governor to object not only to an item of appropriation "in whole" but also to "part" of an appropriation. N.J. Const. (1947) art., V, § I, para. 15. The constitutional choice of language was obviously premised on the expectation that only items of appropriation of money, or conditions on their expenditure, would be included in a general appropriations act. The Governor is thus authorized by the constitutional clause to object "in whole or in part" to any item of appropriation; consequently, any item or "part thereof” that has been subject to the Governor's objection shall be ineffective. Construing this language sensibily, to accord with the constitutional scheme, we are satisfied that a general condition on appropriated funds may itself be regarded as a "part" of an appropriation. Consquently, such conditions are within the ambit of the Governors's line-item veto power and may be eliminated without necessarily and simultaneously eliminating or reducing any specific item or appropriated funds.43

39 382 So. 2d at 664.

40 State ex rel. Turner v. Iowa State Highway Commission, 186, N.W. 2d 141 (Iowa. 1971); State ex rel. Brown v. Ferguson, 32 Ohio St. 2d 245, 291 N.E. 2d 434 (1972); Welden v. Ray, 229 N.W. 2d 706 (Ia. 1975); Brault v. Holleman, 230 S.E. 2d 238 (Va. 1976); State ex rel. Link v. Olson, 286 N.W. 2d 262 (N.D. 1979).

41 State ex rel. Turner v. Iowa State Highway Commission, supra note 40, 186 N.W. 2d at 150. 42 State ex rel. Brotherton, 214 S.E. 2d 467, 484 (W. Va. 1975).

43 Karcher v. Kean, 479 A. 2d 403, 417 (N.J. 1984)

The Wisconsin Supreme Court, however, has provided the most expansive reading of a governor's item veto authority. The court there has ruled that "[u]nder the Wisconsin Constitution, the Governor may exercise his partial-veto authority power by removing provisos and conditions to an appropriation so long as the net result of the partial veto is a complete, entire, workable bill which the legislature itself could have passed in the first instance.44 How far can a legislature go in attempting to curb a Governor's item veto by using conditions, limitations or other devices?

The courts in most jurisdictions have recognized the increased tension created between the political branches by the adoption of the item veto. The conflicting lines of authority in the issue areas thus far reviewed are reflective of the judicial efforts to resolve that inherent struggle. When directly addressing the conflict, the courts have acknowledged the authority of the legislature to enact appropriations and reasonably direct their use, while warning that the authority may not be used to curb or abridge the governor's veto power by subtle drafting of conditions, limitations or restrictions upon appropriations.45 One court has stated the problem and its proposed resolution as follows:

We are no more willing to allow the legislature to use its appropriation power to infringe on the Governor's constitutional right to veto matters of sustantive legislation than we were to allow the Governor to encroach on the constitutional powers of the legislature. In order to avoid this result, we hold that, when the legislature inserts inappropriate provisions in a general appropriation bill, such provisions must be treated as "items" for purposes of the Governor's item veto power over general appropriation bills.

The distinction between what constitutes a condition or limitation properly included in a general appropriation bill and what amounts to a provision which is essentially a matter of general legislation more appropriately dealt with in a separate enactment appears, on first consideration, to be difficult to draw. However, this need not be the case if the legislative and executive branches of the government adhere to the spirit of the constitution, each exercising its respective powers with due deference for the constitutional prerogatives of the other. La. Const. art. 3, § 16 (C) directs the legislature to pass an "itemized" appropriation bill, essentially a budgetary schedule of distinct fiscal units. The Governor's corollary power to veto the "items" of expenditure included therein casts further light on what was contemplated for insertion in the general appropriation bill. These provisions were never intended to hamstring the legislature in its legitimate efforts to control the purse strings of government. On the other hand, legislative control cannot be exercised in such a manner as to encumber the general appropriation bill with veto-proof "logrolling measures," special interest provisions which could not succeed if separately enacted, or "riders," substantive pieces of legislature incorporated in a bill to insure passage without veto. It is not enough that a provision be related to the institution or agency to which funds are appropriated. Conditions and limitations properly included in an appropriation bill must exhibit such a connexity with money items of appropriation that they logically belong in a schedule of expenditures. We conclude, as did the trial judge, that the ultimate test is one of appropriateness. 46

An early decision found no difficulty in approving a legislative scheme that appeared to undermine a governor's veto. In that case

44 State ex rel. Kleczka, v. Conta, 264 N.W. 2d 539, 555 (Wis. 1978).

45 People ex rel. State Board v. Brady, 277 Ill. 124, 115 N.E. 204 (1917); Fairfield v. Foster, 25 Ariz. 146, 214, P. 319 (1923); Opinion to the Governor, 239 So. 2d 1 (Fla. 1970); Helena v. Omholt, 155 Mont. 212, 468 P. 2d 764 (1970); California State Employees Association v. California, 32 Cal. App. 3d 103, 108 Cal. Rptr. 60 (1973); State ex rel. Sego v. Kirkpatrick, 86 N.M. 359, 524 P. 2d 975 (1974); Elmhurst Convalescent Center Inc. v. Bates, 40 Ohio App. 2d 206, 348 N.E. 2d 151 (1975); Opinion of the Justices, 373 Mass. 911 (1977); Henry v. Edwards, 346 So. 2d 153 (1977).

46 Henry v. Edwards, 346 So. 2d 153, 158 (1977).

the Oklahoma legislature enacted a lump sum appropriation measure for the state university which also apportioned various sums out of the total appropriation for specific purposes connected with the operation of the university. The court held that the appropriation embraced only a single item and therefore the constitutional provision permitting the governor to disapprove "any item, or appropriation therein contained" did not apply to a bill containing only a single item with directions as to how that item should be expended.47

The Oklahoma precedent was quickly disavowed in most jurisdictions. Thus when the Illinois Supreme Court was confronted with a challenge to gubernatorial vetoes of a number of subdivisions of a lump sum appropriation, it upheld the vetoes. The legislature contended that the subdivisions could not be vetoed without vetoing the lump sum as the subdivisions constituted qualifications upon the appropriation of the lump sum. The court rejected the argument, saying that to hold that the whole bill was one item would constitute a legislative evasion of the Governor's authority to veto distinct items. The court cited but refused to follow the Oklahoma precedent.48 The same result obtained under similar circumstances in an Arizona ruling specifically rejecting the Oklahoma rule: “If we follow that line of reasoning, the legislature may simply make a separate appropriation in any lump sum for each department, or, by proper language in the general appropriation bill, consolidate the funds for almost the entire state government, and, under the guise of 'directing' the expenditure of the money, limit its application to matters and amounts which the Governor believes to be highly injurious in part to the best interests of the state, practically compelling him to choose between abandoning the veto power, or suspending the operations of the government, thus nullifying the provisions of the Constitution under consideration, and going back to the very conditions its makers sought to avoid.49

Illustrations from several cases may best serve to illustrate the types of stratagems devised by legislature to evade a governor's veto and how courts have dealt with them. A common procedure has been to attempt to include substantive legislative provisions in an appropriations bill in the guise of a condition or limitation. In wrestling with what are often borderline distinctions, the courts often rest their conclusion on a near subjective evaluation of the appropriateness of the provision in a particular money bill. When a provision is deemed "inappropriate," it may be found to be an item subject to veto. A Louisiana decision exemplifies the difficulty.50 Twelve vetoes of provisions in several sections of an appropriation measure were involved and were disposed of as follows: (1) A provision which directed that no state agency shall print any bulletin, leaflet, house organ, or circular, except those required by law, that all printed matter shall be effected in a uniform manner as to size, quality of paper and use of color, and that no funds appropriated in the bill shall be used to urge any elector to vote for or against a

47 State University v. Trapp, 28 Okla. 83, 113 P. 910 (1911).

48 People ex rel. State Board of Agriculture v. Brady, 277 Ill. 124, 115, N.E. 204 (1917).

49 Fairfield v. Foster, 25 Ariz. 146, 156, 214 F. 319 (1923). Compare, Brown v. Firestone, 382 So. 2d 654, 668 (Fla. 1980).

50 Henry v. Edwards, 346 So. 2d 153 (La. 1977).

candidate or proposition on an election ballot nor to lobby, was held to contain matters of general law which should have been enacted as a separate bill and therefore had to be treated as a separate item which could be validly vetoed. (2) A provision appropriating money to pay the salaries of district attorneys and their assistants which also stated that any assistant district attorney who received any state funds supplementing his salary shall be prohibited from electioneering and campaigning in the parish of Orleans for any election was held not to be a condition or limitation on the expenditure of money and was thus properly vetoed. (3) A provision appropriating funds to an agency which required approval before expenditure from several designated bodies, including two legislative committees, was a valid condition with a sufficient "connexity with the expenditure of funds" so that it could not be vetoed without vetoing the money item as well. (4) An item funding medical assistance programs provided that payment to nursing homes had to be based on a formula devised by the agency and approved by certain legislative committees. The court here held, in contrast to its disposition of item 3, the proviso to be a valid condition that could not be vetoed. (5) A provision funding the Corrections Department imposed legislative review of monies spent on actions transferring prisoners was held properly vetoed since it did not "exhibit such a connexity with the appropriation of funds that they logically belong in a schedule of expenditures. Provisions for legislative oversight over the activities of certain government departments could readily be made the subject of general legislation." (6) & (7) Provisions that directed that no appropriated funds be used to house or maintain prison inmates in a certain named nursing home, or to fund more than 300 inmates in a work-release program at a certain camp, were held to be "special interest legislation aimed at accomplishing a purpose independent of the appropriation of funds" and therefore subject to veto. (8) A provision that_required a named prison institution to notify local authorities of an escape was held to be substantive legislation and subject to veto. (9) The appropriation for a special treatment facility prohibited the transfer to it of persons convicted of certain crimes and required notification of local authorities of all transferees. The proviso was held not to be a condition or limitation on the expenditure of the funds and therefore subject to veto. (10) An agency was prohibited from using appropriated funds to buy products to be used on public highways unless they had been officially approved. The court held that although the language was couched in language suggestive of condition or limitation, its real purpose was to insure that equipment purchased by the state met certain safety standards, a concern that would more appropriately be addressed in general legislation since it was a substantive expression of the state policy on safety. The veto was thus found to be proper. (11) Three directives were contained in this higher education appropriation. The first, directing that funds be expended in accordance with law, was upheld. A second, which dedicated for an indefinite period all funds collected for campus parking, was held not a specific appropriation for a given year and vetoable. The third, which prohibited the use of funds to finance the appearance on any campus of a person who advocated the violent overthrow of the United States or the state