There can be no question that the partial vetoes presently before the court do not meet the standard herein set forth. The governor partially vetoed section 51 of the bill as passed by the legislature by striking the words "that their income tax liability be increased," by and the words "deposit into." There is no method by which these portions can be said to con

Discussion Notes

1. Try to draft an amendment to the Wisconsin Constitution, as interpreted in the Conta decision, that would overturn that interpretation.

2. Should a governor, using the item veto, be able to reduce the dollar amount in an item in an appropriation bill? Compare Commonwealth v. Barnett, 199 Pa. 161, 48 A. 976 (1901) (permitting reduction), with Wood v. State Administrative Board, 255 Mich. 220, 238 N.W. 16 (1931) and Mills v. Porter, 69 Mont. 325, 222 P. 428 (1924) (refusing to permit reduction). Concerning the Pennsylvania rule, see M. Nelson McGeary, "The Governor's Veto in Pennsylvania," American Political Science Review 41 (October 1947): 941. A number of state constitutions have been amended specifically to permit gubernatorial reduction of appropriation items. See Note, "Item Veto, Reduction of Items, Elimination of Items Included in a General Sum," Southern California Law Review 12 (March 1939): 321.

3. See generally Ada E. Beckman, "The Item Veto Power of the Executive," Temple Law Quarterly 31 (Fall 1957): 27; Arthur J. Harrington, "The Propriety of the Negative-The Governor's Partial Veto Authority," Marquette Law Review 60 (Spring 1977): 865; Roger H. Wells, "The Item Veto and State Budget Reform," American Political Science Review, 18 (November 1924): 782.

4. The item veto is a feature of state constitutions which has been receiving serious consideration for adoption at the federal level. This is an area where the "laboratory" metaphor for state constitutional experiments seems particularly appropriate. For an exhaustive review of the state experience and an evaluation of its adaptability to the federal government, see House Committee on Rules, Item Veto: State Experience and its Application to the Federal Situation, 99th Cong., 2d Sess. (Comm. Print 1986).

Two recent commentators on the question of adopting the item veto at the federal level cautioned:

[T]he granting of item veto authority to
the President may fundamentally alter
the constitutional balance between Con-
gress and the President.

The "state analogy" suffers from a

stitute an independent legislative proposal capable of separate enactment, and I would therefore hold that the governor has exceeded the limits of the power conferred upon him by the partial veto provision, and has improperly assumed power reserved to the legislature.

number of serious deficiencies. The item
veto exercised by the governors of many
states is sustained by a governmental de-
sign unique to the states and cannot be
severed from it. State constitutions differ
dramatically from the federal Constitu-
tion, especially in their distribution of ex-
ecutive and legislative powers. There is a
much greater state bias against legisla-
tures than exists at the national level.
State budget procedures differ substan-
tially from federal procedures. Appro-
priations bills in the states are structured
to facilitate item vetoes by governors.
Appropriations bills passed by Congress
contain few items. Finally, state judges
have experienced severe problems in de-
veloping a coherent and principled ap-
proach to monitoring the scope of item
veto power. Many of those problems
would be duplicated and possibly com-
pounded at the federal level.

More fundamentally, the adoption
of what might appear to be a relatively
modest reform proposal could result in a
radical redistribution of constitutional
power. The item veto has significance be-
yond the budgetary savings that may, or
may not, be realized. At stake are the
power relationships between the execu-
tive and legislative branches, the exercise
of Congress' historic power over the
purse, and the relative abilities of each

branch to establish budgetary priorities. Louis Fisher and Neal Devins, "How Successfully Can the States' Item Veto Be Transferred to the President?" Georgetown Law Journal 75 (October 1986): 161-62.

5. For earlier discussions of the item veto at the federal level, see Note, "Separation of Powers: Congressional Riders and the Veto Power," University of Michigan Journal of Law Reform 6 (Spring 1973): 735; Note, "The Legislative Rider and the Veto Power," Georgetown Law Journal 26 (May 1938): 954; Note, "The Item Veto in the American Constitutional System," Georgetown Law Journal 25 (November 1936): 106.

Many state constitutions specifically provide for the creation of governmental agencies and offices, and enumerate their powers. In addition, most state constitutions provide for executive officers, such as an Attorney General, who exercise a portion of the executive power instead of the governor. Do such agencies or officers enjoy a status any different from those created by the more usual method of legislative enactment?

Florida Department of Natural Resources v. Florida Game and Fresh Water Fish Commission

342 So.2d 495 (Fla. 1977)

The circuit court declared unconstitutional Section 17 of Chapter 75-22, Laws of Florida, which provides:

Section 17. Subsection (17) of section 20.25 Florida Statutes, is amended to read:

20.25 Department of Natural Resources.-There is created a Department of Natural Resources.

(17) The Game and Fresh Water Fish Commission functions, prescribed by chapter 372, are transferred by a type one transfer to the Department of Natural Resources. The Department of Natural Resources shall have authority pursuant to the type one transfer to directly supervise, review, and approve the commission's exercise of executive powers in the area of budgeting.

The statute was found to violate Article IV, Section 9, Florida Constitution (as amended 1974), which provides:

Section 9. Game and fresh water fish commission.-There shall be a game and fresh water fish commission, composed of five members appointed by the governor subject to confirmation by the senate for staggered terms of five years. The commission shall exercise the regulatory and executive powers of the state with respect to wild animal life and fresh water aquatic life except that all license fees for taking wild animal life and fresh water aquatic life and penalties for violating regulations of the commission shall be prescribed by specific statute. The legislature may enact laws in aid of the commission, not inconsistent with this section. The commission's exercise of executive powers in the area of planning, budgeting, personnel management, and purchasing shall be as provided by law. Revenue derived from such license fees shall be appropriated to the commission by the legislature for the purpose of management, protection and conservation of wild animal life and fresh water aquatic life.

The circuit court held that the constitutional provision that the Commission's "exercise" of certain of its executive powers shall be as provided by law did not mean that the legislature could, by making the exercise of these powers subject to the approval of the Department of Natural Resources, deprive the Commission of its authority. Defendant appeals from the judgement below, alleging that the statutory provisions for a type one transfer of Game and Fresh

Water Fish Commission functions to the Department of Natural Resources and for Department review of the Commission's exercise of executive powers in the area of budgeting are free of constitutional defect. For the reasons set forth below, we agree with the circuit court that the statute is unconstitutional.

A type one transfer is defined by Section 20.06, subsection (1), Florida Statutes, as follows:

(1) Type One (1) Transfer.-A type one (1) transfer is the transferring intact of an existing agency or of an existing agency with certain identifiable programs, activities, or functions transferred or abolished so that the agency becomes a unit of a department. Any agency transferred to a department by a type one (1) transfer shall henceforth exercise its powers, duties, and functions as prescribed by law, subject to review and approval by, and under the direct supervision of, the head of the department.

Section 20.06, subsection (1), Florida Statutes, authorizes the transferee department to review the exercise of the powers, duties, and functions of the transferred agency. It is clear that, absent qualification, a type one transfer places the transferred agency under the absolute control of the department head. Such an arrangement in the instant case is constitutionally impermissible. Defendant does not dispute the unconstitutionality of an unqualified type one transfer to plaintiff; it is instead defendant's contention that Chapter 75 22, Section 17, Laws of Florida, effectuated a qualified type one transfer. Based upon a comparison of the statute presently under consideration and its predecessor law, we cannot agree.

The predecessor law, Section 20.25, subsection (17), Florida Statutes, provided:

(17) The game and fresh water fish commission functions, prescribed by chapter 372, are transferred by a type one transfer to the Department of Natural Resources, except that the commission shall exercise its powers prescribed by sec. 9 of Art. IV of the state constitution independently of the head of the Department of Natural Resources. (Emphasis supplied.)

The second clause of the previous law clearly qualifies the type one transfer announced in the first clause so as to preserve all of the Commission's constitutional authority. The statute in question contains

no such saving clause, and, by giving the Department authority to "directly supervise, review, and approve the Commission's exercise of executive powers in the area of budgeting," the statute is inconsistent with the mandate of Article IV, Section 9. Since Chapter 75-22, Section 17, Laws of Florida contains no language modifying the type one transfer set forth in the first sentence, it must be considered unconstitutional as an attempted unqualified type one transfer of a constitutional agency. Article IV, Section 9, Florida Constitution; Section 20.06(1), Florida Statutes (1976).

Article IV, Section 9, Florida Constitution (as amended 1974), specifically authorized the legislature to make laws concerning the Commission's budgeting. The Department contends that if the trial court's findings were correct, any law directing the processing of the Commission's budget would be difficult to uphold since any mandatory budgetary process, even if performed directly by the legislature without involving any agencies, could be viewed as a diminishing of the Commission's alleged absolute power. We are not prepared to say at this time that, under the present constitution, the legislature may not pass any law regarding the commission's budgeting which may result in some diminution of the Commission's budgetary autonomy. However, Chapter 75-22, Section 17, Laws of Florida, renders the constitutional grant to the Commission of executive power in the area of budgeting totally meaningless. We hold that the statute is an impermissibly broad intrusion upon that grant.

The Constitution assigns to the Commission the executive power of the state with respect to wild animal life and fresh water aquatic life, with the exception of license fee and penalty determination, and provides that "the commission's exercise of executive powers in the area of planning, budgeting, personnel management, and purchasing shall be as provided by law." Such laws cannot, however, be inconsistent with other provisions of this section. Article IV, Section 9, Florida Constitution. Thus, while the legislature may pass laws affecting the Commission's exercise of its executive budgetary authority, it may not pass laws depriving the Commission of such authority. A statute placing final approval of the Commission's budget out of the hands of the Commission itself is clearly a deprivation of constitutional authority, rather than merely a "law affecting the Commission's exercise of its budgetary authority."

Accordingly, the judgment of the circuit court is

affirmed.

Discussion Notes

1. Why would the Florida Game and Fresh Water Fish Commission be created in the constitution?

2. Why would the legislature seek to "transfer" the Commission into the Department of Natural Resources? Consider art. IV, sec. 6 of the Florida Constitution, added in 1968:

SECTION 6. Executive Departments. All functions of the executive branch of state government shall be alloted among not more than twenty-five departments exclusive of those specifi

cally provided for or authorized in this
constitution. . . .

Why would such a provision be placed in a state constitution?

3. See also, Whitehead v. Rogers, 223 So.2d 330 (Fla. 1969) (statute prohibiting hunting on Sundays invalidated as inconsistent with rule of Game and Fresh Water Fish Commission providing for a onemonth hunting season, including Sundays).

4. Compare Burns v. Butscher, 187 So.2d 594 (Fla. 1966) with School Board v. Askew, 278 So.2d 272, 275 (Fla. 1973) ("constitutional officers").

5. Consider the materials in Chapter 12, Sec

tion C.