Request By:
Mr. Joseph L. Coomes
Director at Large
The League of Kentucky Sportsmen, Inc.
1621 Booth Avenue
Owensboro, Kentucky 42301
Opinion
Opinion By: David L. Armstrong, Attorney General; Charles W. Runyan, Assistant Deputy Attorney General
You have written that the 1984 Kentucky General Assembly passed Senate Bill 294, as amended, which may suspend certain Kentucky Revised Statutes when they do not conform to the Biennial Budget. The Act becomes effective July 1, 1984. The Budget Bill became law on April 13, 1984. However, it becomes operative July 1, 1984. See § 55, Kentucky Constitution. An amendment to S.B. 294 makes it clear that the bill was to apply to the State Budget Act of 1984.
You request our opinion as to the constitutionality of S.B. 294.
Section 1 of the Bill reads:
"SECTION 1. A NEW SECTION OF KRS CHAPTER 446 IS CREATED TO READ AS FOLLOWS:
"(1) Nothing in a budget bill adopted by the general assembly shall be construed to effect a repeal or amendment in the Kentucky Revised Statutes, and if any repeal or amendment appears to be effected in any of the Kentucky Revised Statutes, it shall be disregarded, shall be null and void, and the law as it existed prior to the effective date of the budget bill shall be given full force and effect.
"(2) Notwithstanding the provisions of subsection (1) of this section the general assembly may provide in a budget bill for the suspension or modification of the operation of a statute if the general assembly finds that the financial condition of state government requires such suspension or modification. Such suspension or modification shall not extend beyond the duration of the budget bill."
Section 7 of S.B. 294 creates a new section of KRS Chapter 48, which reads:
"To the extent that the provisions of a budget bill are in conflict with any provisions of KRS Chapters 12, 42, 56, 152, 177, or 341, the provisions of those chapters are hereby suspended or modified. Such suspension or modification shall not extend beyond the duration of the budget bill."
In connection with Section 7, just quoted, the subject-matter of those KRS Chapters are listed: Chapters 12 (Administrative Organization), 42 (Department for Finance and Administration), 56 (State Lands and Buildings), 152 (Department of Commerce), 177 (State and Federal Highways), and 341 (Unemployment Compensation). Note the broad gamut of state government affected by Section 7.
Even considering Section 1 and the new section of KRS Chapter 446 that nothing in a budget bill shall be construed to effect a repeal or amendment in the Kentucky Revised Statutes, the definitional concept of Section 1(2) that a state budget bill may provide for the " suspension or modification of the operation of a statute, if state finances so require, and Section 7 of the bill present a constitutional problem of gargantuan magnitude, as relates to § 51, Kentucky Constitution, which we shall hereinafter analyze, and considering that a Budget Bill must meet the requirements of § 51." (Emphasis added).
It is first necessary to note the stark and polar contrast between a budget bill and statutory law. The term "legislation" has been defined in Black's Law Dictionary, page 1045, as "The act of giving or enacting laws; the power to make laws." The legislature may enact any law which is not expressly or impliedly prohibited by the
Federal and Kentucky Constitutions. Holsclaw v. Stephens, Ky., 507 S.W.2d 462 (1974). The General Assembly enacts the state statutes. Under the constitution, it alone has that authority.
Bryan v. Yungblut, 136 Ky. 810, 125 S.W. 251 (1910). The term "statute" was held in
Baker v. White, 251 Ky. 691, 65 S.W.2d 1022 (1933), to apply to laws enacted by the supreme law-making body of the state.
A budget bill is a legislative act, but it is not permitted, by § 51 of the Kentucky Constitution, because of its nature and biennial life, to create, establish, or modify statutory law.
Commonwealth v. Johnson, 292 Ky. 288, 166 S.W.2d 409 (1942) 414. The court made it clear in Commonwealth v. Johnson, above, that where the Budget Bill only deals with the appropriation of funds by the Commonwealth, there is no constitutional problem. Thus where the title describes the bill as the budget bill, or equivalent language, and the body of the bill relates only to state appropriations, there is no problem in applying § 51, Constitution, which section reads:
"No law enacted by the General Assembly shall relate to more than one subject, and that shall be expressed in the title, and no law shall be revised, amended, or the provisions thereof extended or conferred by reference to its title only, but so much thereof as is revised, amended, extended or conferred, shall be re-enacted and published at length." (Emphasis added).
However, the court in
Bosworth v. State University, 166 Ky. 436, 179 S.W. 403 (1915), 405, 406, found that an act related to two subjects, i.e., (1) the prevention of the manufacture and sale of adulterated foods, drugs, etc., and (2) an appropriation of the state of $30,000, and thus held the act to be unconstitutional under § 51. See also
Link v. Commonwealth, 205 Ky. 243, 265 S.W. 804 (1924). In
Burton v. Mayer, 274 Ky. 245, 118 S.W.2d 161 (1938), the court wrote that the purpose of § 51 was to require that the title to an act give to interested persons fair and reasonable notice of the nature of the provisions of the act.
A budget bill is necessary in order to draw money from the state treasury. Section 230, Kentucky Constitution; KRS 41.110; and
Ross v. Gross, 300 Ky. 337, 188 S.W.2d 475 (1945). The state's money can only be spent with the consent of the legislature. An appropriations act is merely legislation directing the payment of state money.
Shannon v. Dean, 279 Ky. 279, 130 S.W.2d 812 (1939) 814. It is not statutory law.
A budget bill of the state is the financial plan for each of two fiscal years adopted by the passage of a budget bill and such revenue and other acts as are necessary for that purpose. See Section 4 of S.B. 294, amending KRS 48.300. Under Section 5 of S.B. 294, amending KRS 48.310, a "budget bill shall be considered as subordinate to the Kentucky Revised Statutes and temporary in nature. No provision of a budget bill shall be effective beyond the second fiscal year from the date of its enactment." (Emphasis added). Further, under that statute, as amended, "No budget bill shall contain language which exempts the budget bill or any appropriation or the use thereof from the operation of a statute." Any language in a budget bill in violation of this section shall be null and void.
It must be kept in mind that existing statutory law, in order to be amended, revised, repealed or otherwise changed, requires the enactment of other statutory law. See
Hazelrigg v. Hazelrigg, 169 Ky. 345, 183 S.W. 933 (1916); and
Commonwealth v. Scott, 310 Ky. 537, 221 S.W.2d 64 (1949). Section 51, Kentucky Constitution, deals specifically with the revision, amendment or extension of statutory law. While an amendment of a statutory law alters it or changes it, a repeal of statutory law abrogates or destroys the statutory law.
Aldridge v. Commonwealth, 192 Ky. 215, 232 S.W. 619 (1921) 620. Further, "No law shall be revised, amended, or the provisions thereof extended or conferred by reference to its title only, but so much thereof as is revised, amended, extended or conferred, shall be re-enacted and published at length." (Emphasis added). Section 51,
Kentucky Constitution. Petty v. Talbott, 256 Ky. 688, 76 S.W.2d 940 (1935) 944, 945.
Section 51 of the Constitution applies to all laws enacted by the General Assembly, which includes budget bills.
Commonwealth v. Johnson, 292 Ky. 288, 166 S.W.2d 409 (1942). Obviously a budget bill is not, because of its biennial and special nature, the proper vehicle for complying with § 51 by way of re-enacting and publishing at length preexisting statutory law. In any event, the 1984 state budget bill did not comply with that provision of § 51, requiring re-enactment and publication of affected statutory law. If a budget bill were to be used in the dual role of passing budget legislation and amending or revising preexisting statutory law, the title of the act, if it were to state the dual role, would violate § 51, as we have said, since it requires that a law shall relate to only one subject. The 1984 budget bill violated § 51 by introducing two subjects, although the title suggests only that the bill is an appropriations act. See
Flynn v. Barnes, 156 Ky. 498, 161 S.W. 523 (1913); and
Bosworth v. State University, 154 Ky. 370, 157 S.W. 913 (1913).
The central purpose of § 51 of the Constitution is the prevention of surreptitious legislation and to provide a general barrier against duplicitous legislation.
Bowman v. Hamlett, 159 Ky. 184, 166 S.W. 1008 (1914); and
Talbott v. Laffoon, 257 Ky. 773, 79 S.W.2d 244 (1935) 249. Speaking of § 51, the court said this in Bowman v. Hamlett, above, at pages 1009-1010:
"The purpose of this constitutional provision is the prevention of surreptitious legislation; as said in Cooley on Constitutional Limitations: 'To prevent surprise or fraud upon the Legislature by means of provisions in bills, of which the titles gave no intimation, and which might, therefore, be overlooked and carelessly or unintentionally adopted.' So, having in mind the purpose of this provision and the evil against which it is aimed, before any act of the General Assembly should be nullified by this court, upon the ground that the subject of the act is not expressed in the title by reason of a variance between the title and the body of the act, it should be made to appear, and the court should be satisfied, that the variance complained of is such as to bring it within the range of the evils sought to be guarded against, and such as to justify its condemnation upon that ground alone."
The intent of § 51 to protect the legislature itself from surreptitious legislation extends also to the general public.
Thompson v. Commonwealth, 159 Ky. 8, 166 S.W. 623 (1914) 625; and
Frost v. Johnston, 262 Ky. 592, 90 S.W.2d 1045 (1936) 1048. Thus the purpose of § 51 "is to require titles that will disclose to the reader the nature of the act, and thus prevent vicious legislation being enacted under innocent and misleading titles." (Emphasis added). Frost v. Johnston, above. See also
Dawson v. Com., Dept. of Transp., Tc., Ky. 622 S.W.2d 212 (1981) 213.
As we pointed out earlier, Section 51 relates to all laws enacted, including budget acts. Note that KRS 446.145, as an implementation of § 51, provides the specific manner of indicating amended, created, and repealed statutory sections. The statute reads:
"(1) Bills amending an existing section of the statutes shall indicate the material proposed to be deleted by brackets and by striking through the material.
"(2) Bills amending an existing section of the statutes shall indicate new material by underlining.
"(3) Bills creating a new section of the statutes shall begin with the phrase 'A NEW SECTION OF KRS CHAPTER IS CREATED TO READ AS FOLLOWS:' and shall contain underlining of all material in the section.
"(4) Bills repealing a section of the statutes shall list the statute number and headnote."
Now, since a state budget bill is to be considered as coming under the direction of § 51, KRS 446.145 would have to be followed, where the suspension or modification of statutory law is involved. However, in so doing, the budget bill, to be accurately described to the General Assembly and to the Kentucky public, would reflect in its title and the following of KRS 446.145 a dual role: (1) a state budget bill and (2) the amendment, modification, or suspension of designated statutory law. That indeed would violate § 51, which requires one subject. Compare the case of
Commonwealth v. Johnson, 292 Ky. 288, 166 S.W.2d 409 (1942), which presented a situation in which the court ruled that, where the appropriations act contained only appropriations legislation, it passed muster under § 51.
There is an enormous pragmatic implication flowing from the judicial history of § 51. It is simply that where a state budget bill is used as a device, by using surreptitious language buried in the innermost recesses of the detailed budget bill, to suspend or modify the operation of statutory law, the general public, including the courts, lawyers for governments and lawyers for private concerns, government executives and public officials, and Kentucky citizens generally, have no adequate or orderly legal indexing system to really learn of specific provisions of the budget bill which may seriously suspend or modify existing statutory law. Their only recourse is to have a copy of the bill or the Kentucky Acts of that session by their sides as a constant reminder of the potential havoc lurking within its covers.
As a follow up on S.B. 294, which becomes operative July 1, 1984, the 1984 state budget bill (H.B. 474) in its one hundred and seventy-two (172) pages, contains many passages purporting to amend, suspend, or modify existing statutory law. For example, on page 5 of the budget bill, we find this direction concerning the state prosecutorial system:
"TOTAL - UNIFIED PROSECUTORIAL SYSTEM 1984-85$15,355,5001985-86$16,026,700
It is the intent of the General Assembly that the distribution of funds to a particular county or circuit be based upon that county's or circuit's actual caseload. It is further the intent of the General Assembly that a county or circuit receive an amount of the total funds which is proportional to its caseload to the state's total caseload. "
The effect of the above language relating to the "caseload" concept for distribution of state funding of the state prosecutorial system is at variance with the budget law of KRS Chapter 15 and Chapter 48. See KRS 15.750, 15.755, 15.760, 15.765, and 15.770. It is our opinion that the above budget bill remarks are unconstitutional.
CONCLUSION
Statutory law can only be repealed, modified, amended, suspended, or extended by other enacted statutory law. Section 1(2) of S.B. 294 permits the General Assembly "to provide in a budget bill for the suspension or modification of the operation of a statute if the general assembly finds that the financial condition of state government requires such suspension or modification. " (Emphasis added). Clearly the suspension or modification of a statute is to be accomplished, not by another enacted statute, but by "provisions in a budget bill," under S.B. 294. (Emphasis added).
Thus under our above analysis and case citations, it is our opinion that Section 1(2) of S.B. 294 is unconstitutional. The legislature cannot authorize itself to engage in unconstitutional legislation by way of the budget bill. An appropriations act is merely nonstatutory legislation directing payment of state money out of the state treasury. While Section 5(2), which amends KRS 48.310, provides that no budget bill shall contain language which exempts the budget bill from the operation of a statute, the practical converse is permitted under Section 1(2) of S.B. 294 where the General Assembly finds that the state's financial condition warrants such suspension or modification of the operation of a statute.
Section 7 of the bill provides that where the provisions of a budget bill are in conflict with any provisions of KRS Chapters 12, 42, 56, 152, 177 or 341, the provisions of such chapters are suspended or modified for the biennium. Here again, the practical effect of Section 7 is to permit a budget bill to suspend or modify statutory law in any of the designated KRS chapters. For reasons given above, it is our opinion that Section 7 is likewise unconstitutional.
Finally, the State Budget Bill, containing language which is designed to amend, modify or suspend existing statutory law, is unconstitutional, as relates only to such language of modification, suspension, etc. Further, such unconstitutional remarks should be disregarded, since they are not a constitutional part of the State Budget Bill. Under the principle of severability, as expressed in KRS 446.090, the appropriations act, minus the offending language of statutory modification, is constitutional. The strictly appropriations part of the act is readily severable. See
State Property & Buildings Commission v. Hays, Ky., 346 S.W.2d 3 (1961) 8.
We want to make it clear that the 1984 state budget bill, in containing language not a reasonable part of the appropriations act but which is calculated to modify or suspend the operative effect of existing statutes, violated § 51 of the Constitution on two grounds: (1) It did not in its title describe the full contents of the legislation. Even if it had so described, it would have involved two subjects (appropriations and statutory changes). Two subjects are prohibited by § 51. (2) The requirement of re-enactment and publication of affected statutes was not met.
See OAG 82-322 and 83-383, copies attached, in which we concluded that language used in the 1982 Budget Bill purporting to modify existing statutory law violated § 51 of the Kentucky Constitution, since more than one subject is involved.