CONSTITUTIONALITY OF PROPOSED CAPITAL BUDGET

APPROPRIATIONS ‑- STATE ‑- LEGISLATURE ‑- GOVERNOR ‑- CONSTITUTIONALITY OF PROPOSED CAPITAL BUDGET

In the event that a special session of the legislature is convened by the Governor sometime during the winter or early spring of 1978, that session of the legislature would not be either constitutionally or statutorily precluded from enacting a bill making appropriations for designated capital projects pursuant to which expenditures for such projects could be made during the period commencing on July 1, 1978 and ending June 30, 1980.

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                                                                October 17, 1977

Honorable Orin C. Smith
Director
Office of Financial Management
House Office Building
Olympia, Washington 98504                                                                                                               Cite as:  AGLO 1977 No. 42

Dear Sir:

            This is written in response to your recent letter requesting our opinion on a question which we paraphrase as follows:

            In the event that a special session of the legislature is convened by the Governor sometime during the winter or early spring of 1978, would that session of the legislature be either constitutionally or statutorily precluded from enacting a bill making appropriations for designated capital projects pursuant to which expenditures for such projects could be made during the period commencing on July 1, 1978 and ending on June 30, 1980?

            We answer the foregoing question in the negative for the reasons set forth in our analysis.

             [[Orig. Op. Page 2]]

                                                                     ANALYSIS

            I. Constitutionality:

            We will first deal with the question of the constitutionality of an appropriation act such as is described in your question.  The governing provision of our state constitution, as you know, is Article VIII, § 4 (Amendment 11) which reads as follows:

            "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 uless 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)

            Of course, it is well settled in this state that the legislature may enact any legislation not prohibited by the constitution.  Martin v. Tollefson, 24 Wn.2d 211, 163 P.2d 594 (1945); Luders v. Spokane, 57 Wn.2d 162, 356 P.2d 331 (1960).  The issue presented is thus simply whether there is anything in Article VIII, § 4 (Amendment 11),supra, which would prohibit the legislature, at a session occurring in the winter or early spring of 1978, from making appropriations (whether for capital projects or otherwise) designed to cover a two-year fiscal period commencing on July 1, 1978 and ending on June 30, 1980.  In our opinion that question is answerable in the negative.

            RCW 1.16.020, which clearly implements the above underscored portion of Article VIII, § 4 (Amendment 11), provides that:

            "The fiscal biennium of the state shall commence on the first day of July in each odd-numbered year and end on the thirtieth day of June of the next succeeding odd-numbered year."

             [[Orig. Op. Page 3]]

            But bearing that in mind let us next note, briefly, the situation which we now have in terms of your present question.  By the time a legislative session is convened in the winter or early spring of 1978 we will already be well into thecurrent (1977-79) biennium.  The "next ensuing biennium", on the other hand, will then be one which will commence on July 1, 1979 and end on June 30, 1981.  Therefore, it readily follows that an appropriation law passed by the legislation at such a session to cover a two-year period commencing on July 1, 1978 and ending on June 30, 1980 would not be in conflict with Article VIII, § 4 (Amendment 11),supra, for the simple reason that such an appropriation would not purport to extend beyond the term of (in the express words of the constitution) ". . . the next ensuing fiscal biennium . . ."1/   Such an appropriation would thus, in our opinion, be perfectly constitutional.2/

             [[Orig. Op. Page 4]]

            II. Statutory Problems:

            Having so concluded we turn, next, to the question of whether any existing statutes would preclude the foregoing budgetary proposal and thus have to be amended in order to permit it.

            Our direct answer to this question is also in the negative; that is, there are no existing statutes which would necessarily conflict with the contemplated adoption of a capital budget for an interim period which does not coincide with the state's fiscal biennium.  However, we should point out one immediate practical problem as well as explain the current statutory reason for its existence.  We have reference, basically, to the fact that as contemplated by the state budget and accounting act (Chapter 43.88 RCW) there is already now in effect a capital projects appropriations act covering the 1977-79 fiscal biennium; namely, Chapter 338, Laws of 1977, 1st Ex. Sess.

            Unless this existing act were to be either amended or repealed in conjunction with the enactment of a new capital budget by a legislature meeting in the late winter or early spring of 1978, the two appropriations acts would, as a result, overlap each other for a full year.  In essence, both acts would be construed together as constituting a unified whole in a way which maintains the integrity of the respective laws.  SeeState v. Wright, 84 Wn.2d 645, 650, 529 P.2d 453 (1974).  Accordingly, while Chapter 338, supra, is not an obstacle to the enactment of capital appropriations for the fiscal period 1978-80, it is an act whose existence should most certainly be borne in mind by the legislature in shaping subsequent legislation in this area.

            The reason for this situation, in turn, will be found in the budget and accounting act,supra ‑ the purpose of which, as stated in RCW 43.88.010, is:

            ". . . to establish an effective budget and accounting system for all activities of the state government; to prescribe the powers and duties of the governor as these relate to securing such fiscal controls as will promote effective budget administration; and to prescribe the responsibilities of agencies of the executive branch of the state government."

             [[Orig. Op. Page 5]]

            RCW 43.88.060 then provides, in part, that:

            "The governor shall submit the budget document for the 1975-77 biennium and each succeeding biennium to the legislature no later than the twentieth day of December in the year preceding the session during which the budget is to be considered. . . ."

            The content of the budget document is further prescribed in some detail.  Thus RCW 43.88.030 reads, in part, as follows:

            "(1) The budget document or documents shall consist of the governor's budget message which shall be explanatory of the budget and shall contain an outline of the proposed financial policies of the state for the ensuing fiscal period and shall describe in connection therewith the important features of the budget. . . .

            "The budget document or documents shall also contain:

            "(a) Revenues classified by fund and source for the immediately pastfiscal period, those received or anticipated for the current fiscal period, and those anticipated for the ensuing biennium;

            ". . .

            "(2) The budget document or documents shall include detailed estimates of all anticipated revenues applicable to proposed operating or capital expenditures and shall also include all proposed operating orcapital expenditures. . . .

            ". . .

            "(3) A separate budget document or schedule may be submitted consisting of:

             [[Orig. Op. Page 6]]

            "(a) Expenditures incident to current or pending capital projects and to proposed new capital projects, relating the respective amounts proposed to be raised therefor by appropriations in the budget and the respective amounts proposed to be raised therefor by the issuance of bonds during the fiscal period;

            "(b) A capital program consisting of proposed capital projects for at least the twofiscal periods succeeding the next fiscal period.  The capital program shall include for each proposed project a statement of the reason or purpose for the project along with an estimate of its cost;

            "(c) Such other information bearing upon capital projects as the governor shall deem to be useful to the legislature;

            "(d) Such other information relating to capital improvement projects as the legislature may direct by law or concurrent resolution."  (Emphasis supplied)

            As you will note, the term "fiscal period" is used throughout the budget and accounting act.  However, it is not specifically defined in the law, as we earlier also noted in a letter opinion dated September 4, 1968, to the budget director (copy enclosed).  There, we were concerned with the meaning of the term "fiscal period" in determining whether the governor had authority to develop an annual, rather than biennial, budget and, based upon the statuteas it then existed we concluded that

            ". . . so long as the legislature continues to appropriate in this manner (i.e., for a two year period), neither the governor nor the budget director has any authority to prepare and develop the budget on any other than a comparable biennial basis."

            However, the legislature has since amended the budget and accounting act in a way which indicates that a "fiscal period" thereunder is not now limited to a biennium.  See, § 2, chapter 247, Laws of 1977, 1st Ex. Sess., which amended RCW 43.88.060 to read, in part, as follows: