People v. Tremaine

From the agreed statement of facts on which this controversy is submitted to the court it appears that the Governor transmitted to the Legislature his original itemized budget and budget bill on January 28, 1929, in accordance with article IY-A of the New York Constitution, section 2, which reads as follows:

“ § 2. On or before the fifteenth day of January next

In the budget bill so submitted were many lump sum appropriations, not itemized, to the administrative departments. Although the budget must contain all the estimates of proposed expenditures “ clearly itemized,” the Governor and the Legislature seem to be in accord in the view that the budget bill submitted by the Governor need not be itemized but that it may contain lump sum appropriations. The provisions for the Department of Law are typical. They were as follows:

“ Personal Service

“ To permit the attorney-general to reorganize the department of law, exclusive of the appropriations made for the investigation of sale of securities and unlawful corporative activities...'................. $582,250.00

“ On or before June 15, 1929, the attorney-general shall file with the governor a tentative segregation of the amount hereby appropriated. Before any liability shall be incurred such segregation shall have the approval of the governor and no change shall be made in this tentative segregation during the fiscal year commencing July 1, 1929, without his approval.

❖ * * * * * *

“ Special deputies, investigators, referees, witnesses and title searchers, services and expenses. . $60,000.00

“ Before any liabilities are incurred against the above, appropriation, a tentative segregation of the amount shall be approved by the governor. Changes in such tentative segregation may be made with his approval.

“ Investigation of Sale of Securities and Unlawful Corporative Activities

“ Services and expenses................ $210,000.00

“ On or before June 15, 1929, the attorney-general shall file with the governor a tentative segregation of the amount hereby appropriated to be made available on July 1, 1929. Before any liabilities shall be incurred, such segregation shall have the approval of the governor and no change shall be made in this tentative segregation during the fiscal year commencing July 1, 1929, without his approval.”

The State Finance Law, section 139, has since 1921 (L. 1921, ch. 336; L. 1927, ch. 364 [Cons. Laws, ch. 56]) provided as follows:

“ § 139. Segregation of lump sum appropriations. When, by act of the legislature, a state department is created or reorganized, or state departments consolidated,.

Although there is no accompanying act of the Legislature reorganizing the Department of Law or the Department of Labor, it is claimed by the respondent that this section is applicable to reorganization items in the budget bill or bills for such departments. Whether this contention is upheld or not, no question is raised as to the propriety of the reorganization items as such apart from the provisions for segregation.

In each instance in the original Governor’s budget bill where a lump sum appropriation was specified for any purpose, the bill provided that the Governor should be the sole approving authority over segregations. Segregations consist of an itemized list of the positions and salaries covered by the lump sum appropriation.

The Legislature did not assent to the provision giving the Governor exclusive power of approval of such segregations. On February 27, 1929, it passed the Governor’s original budget bill, striking out all the items to which the Governor had attached his provision of segregation control. The items were restated. Section 139 of the State Finance Law was allowed to take effect if and whenever applicable and in appropriations other than for reorganization of State departments the Legislature inserted segregation clauses calling for participation of the chairman of the legislative finance committees with the Governor in the approval of segregations.

“ § 11. No part of any appropriation made by this act for construction shall be expended for personal service except on the approval of the governor, the chairman of the senate finance committee and the chairman of the assembly ways and means committee. This provision may be complied with by the filing with the comptroller and the department of civil service of a fist of the positions so approved and the time for which any person may be employed in such position. This provision, however,

On April 12, 1929, the Governor upon the return of the bill to him, approved the lump sum items for reorganizing the Department of Law and the Department of Labor, insisting, however, that section 139 of the State Finance Law was unconstitutional in its application to those items. He disapproved the general segregation clause, section 11, referred to above, applying to the segregation of personal service items in the large construction items, as he said, “ on constitutional grounds.” The bill became chapter 593 of the Laws of 1929. Other appropriation bills passed at the same session contain similar provisions and were acted on by the Governor in the same manner. As the questions raised thereunder are, with the exception hereafter indicated as to the State Office Site and Building Commission, identical with those stated above, no special reference need be made to them.

The controversy thus arising was submitted on an agreed statement of facts to the Appellate Division, Third Department, under Civil Practice Act, §§ 546-548, inclusive, and thus became an action brought by the Attorney-General in the name of the People of the State of New York to restrain the Comptroller from making payments without the approval of the legislative chairmen and it comes here on an appeal from a judgment in favor of the plaintiff. The appellant asserts that the Legislature had no constitutional power to assign to its chairmen the function of approvers of the segregation of lump sum appropriations. The respondent asserts that the Governor had no power to veto the segregation clause without vetoing the items to which it referred. Constitutional questions, fundamental in character and far-reaching in importance, calling for careful and thorough consideration by the court, thus present themselves.

The first question to be considered is whether the Chairman of the Senate Finance Committee and the Chairman of the Assembly Ways and Means Committee may constitutionally be given the power to approve segregations of lump sums appropriated by the Legislature to the State departments. The power is given to them not as members of a Board, for there are no provisions for joint action, but as individuals, each of whom must exercise the power of approval independently. The question is primarily one addressed to the special limitations upon legislative power contained in the New York Constitution.

Long and interesting is the history of the struggle between the Executive and the Legislature for the control of the public moneys. It is, however, so well settled that the State Legislature is supreme in all matters of appropriations that the recital of the details of the strife for legislative supremacy would serve no useful purpose. The New York Constitution (Art. Ill, § 21) provides: “No money 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.” “ The law-making power has the sole authority over the subject of taxation and the appropriation of money.” (Clark v. State, 142 N. Y. 101 , 104.) Equally interesting but superfluous would be the historical discussion of the division of powers between the executive, legislative and judicial departments. Such powers ought to be kept separate and they are kept separate by the New York Constitution (Art. Ill, § 1) which provides: “ The legislative power of this state shall be vested in the senate and assembly,” and article IV, section 1,

For upwards of one hundred years the Constitution has provided in substance as it now reads:

“ Article III, § 7. No member of the Legislature shall receive any civil appointment within this State, or the Senate of the United States, from the Governor, the Governor and Senate, or from the Legislature, or from any city government, during the time for which he shall have been elected; and all such appointments and all votes given for any such member for any such office or appointment shall be void.”

The words “ any civil appointment ” as thus used are very broad and include any placing in civil office or public trust, pertaining to the exercise of the powers and authority of the civil government of the State, not. reasonably incidental to the performance of duties of a member of the Legislature, as distinguished from a military office or a mere employment or hiring on contract, express or implied. (Sate ex rel. Barney v. Hawkins, 79 Mont. 506 ; 53 A. L. R. 583 , and notes.) The duties.

Obviously the prohibition of the Constitution applies

That the designation of the Chairman of the Senate Finance Committee and the Chairman of the Assembly Ways and Means Committee to approve the segregation of lump sum appropriations amounts to the maldng of civil appointments by the Legislature cannot be seriously disputed. The positions are created and filled by the Legislature; the incumbents possess governmental powers; the powers and duties of the positions are defined by the Legislature; such powers and duties are performed independently; the positions have some degree of permanency and continuity. Their power is not exhausted by a single act but is a general supervisory power over a large group of appropriations, amounting to nearly nine million dollars, to be exercised whenever the occasion arises. Unless the oath of a member of the Legislature is sufficient, the appointee should take the constitutional oath of office. (Const. Art. XIII, § 1.) Their appointment was on behalf of the government in a station of public trust not merely transient, occasional or incidental. It was “ a continuing power to be exercised whenever occasion shall arise. * * * As often as the need arises, the call is to be met. * * * If the intention [of the legislature] was * * * to annex a permanent duty as an incident to the judicial [legislative] office, a public trust has been created though the occasions for discharging it may be irregular or fitful.” (Matter of Richard

Respondent’s counsel in their brief do not quarrel with this definition of a civil appointment. They say: “ When acting on approvals the chairmen of the legislative committees are administrative officers, the same as the Governor is when performing that duty.” Their contention is that such duties are reasonably incidental to the performance of the duties of a member of the Legislature. Doubtless many of the acts of members of the Legislature assigned in the past to boards, committees or commissions to investigate and report on matters of public interest in aid of the law-making power are reasonably incidental to the performance of legislative functions. Other duties assigned to such members by law may be of a private character, as when they are named as ex officio trustees of private educational establishments. (Matter of McGraw, 111 N. Y. 66 , 112; sub nom., Cornell University v. Fiske, 136 U. S. 152 , 200.) Others may be merely transitory or occasional and of minor import, not rising to the dignity of a civil appointment. The constitutional inhibition does not extend to such designations. (Matter of Richardson, supra.) Members of the Legislature may also be assigned to administrative duties by the Constitution, e. g., as Commissioners of the Land Office, as they were in the Constitution of 1846-1926. But the duties here assigned to the legislative chairmen are administrative duties and are not mere incidents of legislation. The Legislature has not only made a law — i. e., an appropriation — but has made two of its members ex officio its executive agents to carry out the law ■—■ i. e., to act on the segregation of the appropriation. This is a clear and conspicuous instance of an attempt by the Legislature to confer administrative power upon two of its own members. It may not engraft executive duties upon a legislative office and thus usurp the executive power by indirection, (Springer v. Philippine Islands, 277 U. S. 189 .)

It follows that so much of the appropriation bills in question as confers powers on the legislative chairmen to approve segregations is unconstitutional and void. As the controversy clearly indicates that the legislative purpose would be thwarted by permitting the power of approval to remain in the Governor alone, all the provisions for the approval of segregations in section 139 of the State Finance Law must be held void. (Pollock v. Farmers’ Loan & Trust Co., 158 U. S. 601 , 635, 636.) So far as the appropriations themselves are concerned, they may be separated from the unconstitutional parts of the statutes and are, therefore, the law of the State. Both Legislature and Governor clearly intended that the departments should be properly maintained in any event and provided therefor. The Legislature may not attach void conditions to an appropriation bill. If it attempts to do so, the attempt and not the appropriation fails. (Matter of Brennan v. Board of Education, 250 N. Y. 570 .) The State Finance Law, section 139, and the vetoed section 11 of chapter 593 of the Laws of 1929 and all similar segregation provisions in the appropriation bills of 1929 are, therefore, unconstitutional and void, although the appropriations themselves, with the exception hereinafter noted, are valid.

One such appropriation bill calls for special consideration. The legislative power appropriates money and, except as to legislative and judicial appropriations, the administrative or executive power spends the money appropriated. Members of the Legislature may not be appointed to spend the money. It follows that so much of the appropriations in chapter 93, Laws of 1929, for the erection of public buildings made to and to be

On the question of practical construction, little need be said. Prior to the adoption of the amended article V of the Constitution many boards or commissions containing members of the Legislature ex officio were created but the practice of providing for the certification by members of the Legislature of payments from lump sum appropriations to the heads of administrative departments is one of recent but rapid growth. Since 1921 a department of the State government, practically permanent in its functions, has been created by the Legislature by conferring on its two chairmen functions of segregation and approval. Liberal appropriations are made for the expenses necessary in this connection. Other designations of members ex officio to act on boards and commissions have gone unchallenged. Good reasons suggest themselves for such inaction. Many such designations were free, from criticism for the reasons hereinbefore stated, as being either private or truly special and temporary in character (People ex rel. Washington v. Nichols,

Although the real question in controversy is thus disposed of, other points are urged by the appellant in support of his contention. Much of the argument has ranged itself about the budget provisions of the Constitution (Art. IV-A, § 3, adopted in November, 1927) which provide as follows:

“ * * * The legislature may not alter an appropriation bill submitted by the governor except to strike out or reduce items therein, but it may add thereto items of appropriation provided that such additions are stated separately and distinctly from the original items of the bill and refer each to a single object or purpose;

The material part of article IV, section 9, which relates to the veto power of the Governor, provides: “ All the provisions of this section, in relation to bills not approved by the Governor, shall apply in cases in which he shall withhold his approval from any item or items contained in a bill appropriating money.”

The appellant contends that the explicit provisions of section 3, above quoted, were disregarded by the Legislature when it added section 11 to the Governor’s supplemental budget bill; that the insertion of that section and like provisions in the Governor’s budget bill altered the appropriation bill by adding to the items of appropriation a rider which was not an item or items of appropriation but was a piece of independent directory legislation. As we have already held that section 11 and similar provisions are void for unconstitutionality, the specific question is at present largely academic. If it were necessarily before us, an additional reason would appear for reversing the judgment below so far as it is affected by such provisions.

The respondent’s counsel rely on section 22 of article III of the Constitution, which provides: “No provision or enactment shall be embraced in the annual appropriation or supply bill, unless it relates specifically to some particular appropriation in the bill; and any such provision or enactment shall be limited in its operation to such appropriation,” and was inserted in the Constitution of 1894 to prevent the inclusion of general legislation in an appropriation bill. They contend that

The provision for a budget system is a new and complete article of the Constitution to be read in connection with all other provisions contained therein as the latest expression of the popular will. While it in no way limits the ultimate powers of the Legislature to make appropriations (Art. IV-A, § 4) it regulates the executive and legislative machinery and defines the method whereby appropriations shall be made. Its provisions were disregarded by the Legislature when it inserted section 11, regulating the segregation of appropriations generally. Nothing, however, contained therein prevents the Legislature from itemizing appropriations or from enacting general laws, apart from the Governor’s budget bill, providing how lump sum items of appropriation shall be segregated, subject to the veto power of the Governor and the constitutional limitation of the Constitution, article III, section 7, heretofore discussed, and the provisions of article V of the Constitution so far as applicable. Assuming, however, that section 11 was a proper item for the Legislature to insert in a budget appropriation bill, much force attaches to the contention that such a

A fundamental question presents itself in this connection. If the Legislature may not add segregation provisions to a budget bill proposed by the Governor without altering the appropriation bill, contrary to the provisions of article IV-A, section 3, it would necessarily follow that the Governor ought not to insert such provisions in his bill. He may not insist that the Legislature accept his propositions in regard to segregations without amendment, while denying to it the power to alter them. The alternative would be the striking out the items of appropriation thus qualified in toio and a possible deadlock over details on a political question outside the field of judicial review. The whole business of segregation seems to be a matter foreign to the budget appropriation bills, tending to prevent necessary appropriations for the support of government whenever the Governor and the Legislature are not in accord as to the manner in which lump sum appropriations should be segregated.

Another constitutional provision is brought to our attention. The amended article V of the Constitution provides (§2) for twenty civil departments in the State government, not including the legislative and the judiciary. It reads as follows: “ There shall be the following civil departments in the State Government: First, Executive; second, Audit and Control; third, Taxation and Finance; fourth, Law; fifth, State; sixth, Public Works; seventh, Architecture; eighth, Conservation; ninth, Agriculture and Markets; tenth, Labor; eleventh, Education; twelfth, Health; thirteenth, Mental Hygiene; fourteenth, Charities; fifteenth, Correction; sixteenth, Public Service; seventeenth, Banking; eighteenth, Insurance; nineteenth,

In this connection it appears that the duties of the State Office Site and Building Commission were in effect

The result of our decision is that it devolves upon the heads of the departments to which the lump sum appropriations of 1929 drawn in question in this action were made, excepting the appropriations for the State Office Site and Building Commission, to apportion and allot the funds under such appropriations in accordance with law, without the approval of the Governor or the legislative chairmen.

The judgment should be reversed and judgment directed in accordance with this opinion, without costs.

(concurring for different reasons). The power of the Legislature over appropriations is plenary unless restricted by the State Constitution. It may not delegate its powers to make appropriations. It may not make a lump sum appropriation for the public needs and authorize one of its members to divide it up as necessity requires. This is simply making an appropriation; acting for the Legislature; a delegation of its.

So too we may dismiss the question of the power of the Legislature to make its own segregation. It is conceded on all sides that the Legislature is not compelled to make a lump sum appropriation; in fact, the spirit and apparent intention of the budget amendment to the Constitution is that there shall be itemized appropriations. The best thing to do is to put the purpose in the appropriation and limit the expenditure to the amount of th e appropriation for each item. The Governor and Legislature have apparently done this for the major part of the budget bill.

But it is also conceded that there are times when item appropriations would be almost impossible or impracticable, as in the case of the reorganization of an office, and lump sum appropriations are made. It is because of such instances that the Legislature and the Governor came to an impasse in 1929. May the Legislature, in making a lump sum appropriation, authorize, even with the consent of the Governor, that the lump sum appropriation shall be segregated by the Governor and a member of the Legislature? The appellants concede that it may be done by the Governor alone as segregation is not a delegation of legislative power. They say, however, that it may not be done with the aid of a member of the Legislature as this violates article III, section 7, of the

If the Legislature may not authorize one of its members to aid in segregation because violative of this provision of the Constitution,-it, of course, could not do so, even with the consent of the Governor. Any bills so providing approved by him, would be illegal.

I do not concur in the opinion that a legislator so acting has taken an office or appointment within the prohibition above quoted. The member of the Legislature has not accepted another office, for he is not obliged to take a constitutional oath other than that which he had taken as a member of the Legislature. There is no permanency to such work. The appropriations are made only for one year. The reorganization of an office is supposed to take place as soon as the administrative incumbent takes office and segregation, therefore, is supposed to be a matter of immediate concern. When segregation is once made it is over with. The question of dividing the money appropriated among the various places to be created by the head of the department is a temporary act, an act incidental to the making of the appropriation, a mere detail of carrying out and effectuating the appropriation made. This work is a further step in applying an appropriation to the situation. It is temporary, incidental, and has none of the elements which go to make up an office or an appointment to an office, or, if we prefer, an appointment to a place of public trust. Assuming that the word “ appointment ” means something more than an appointment to an office, that is, that it means an appointment to a place of public

I do not agree with the suggestion or statement in the opinion that the word “ appointment ” in this section of the Constitution has the same meaning as the words “ public trust ” in section 19 of article VI of that document. This latter provision reads: “ The judges of the Court of Appeals and the justices of the Supreme Court shall not hold any other public office or trust.” Place alongside these words those of section 7 of article III, “ no member of the Legislature shall receive any civil appointment within this State,” it is clear to see that “ civil appointment ” means less, much less, than “ public trust.” An appointment is a designation to an office; there may be a public trust or duty not amounting to an office. (See Matter of Richardson, supra.) The reason for the difference is apparent, A judge shall take no other public trust because he has sufficient to do to serve as a judge. His duties should be confined to his judicial work — he should be single minded. The provision regarding the Legislature was to prevent that body from creating

I, therefore, cannot follow the determination upon this point. For over a century this has been the view of the law as the Constitution of 1821 contained a similar restriction. Nor can I appreciate the distinction drawn between public trust or appointment and a private trust or appointment. I do not know how the Legislature can appoint a member to a private trust. Appropriations are made by the State to Cornell University and to the University of Syracuse. On the board of said institutions are members of the Legislature by virtue of chapter 585, Laws of 1865, and chapter 339, Laws of 1913 — the object being no doubt to watch the expenditure of public moneys. How is this a private trust? When the member of the board is thus designated by law, it is a public trust, or else the Legislature has no power to deal with it. It is a private trust for those not sitting by designation under some specific law. The Legislature cannot give away public moneys. (Article VII, section 1, Constitution of New York; People v. Westchester County National Bank, 231 N. Y. 465 .) The legislators sit on these boards spending the public money because the duties are incidental to the appropriations and the duties of the Legislature. (Const, art. VIII, § 9.)

I agree, however, to the conclusion reached by my associate but upon a different ground, which briefly is that when a member of the Legislature is clothed with the duty of segregating lump sum appropriations he ceases to act as a legislator and is performing executive duties, administrative functions which under our form of government is illegal. The importance of maintaining the independence of the three departments of our republican form of government has often been stated and, as occasion arose, enforced by the courts. The only instances that I know of in which the duties of the

In Springer v. Philippine Islands ( 277 U. S. 189 ) Mr. Justice Holmes, in his dissent, was of the opinion that we could not divide our branches of government into watertight compartments. I am sure nobody disagrees with him and yet the principle still remains and was enunciated in that case that the Legislature cannot become an administrative body or, through its members or committees, perform the work of the Executive or the Judiciary. There is a time when the duties must be kept separate and apart in order that our form of government may be preserved. The doubtful cases make the trouble; the small beginnings and encroachments create the danger. Everyone becomes alarmed at open usurpation and we need fear no such occasion. Rather should we be alive to the imperceptible but gradual increase in the assumption of power properly belonging to another department. Such is this case. The principles are fully set forth and explained in such cases as Springer v. Philippine Islands (supra); Kilbourn v. Thompson ( 103 U. S. 168 ); Hampton & Co. v. United States ( 276 U. S. 394 ); Matter of Davies ( 168 N. Y. 89 ) and Matter of

In my judgment, the Legislature has attempted to place the administrative work of supervising an administrative office upon a member of the Legislature, giving to him powers which he was not elected to assume. That the Legislature is supreme in the matter of making appropriations and controlling the revenue is a fundamental of government. This control no one challenges. The question is whether, after having made an appropriation, having authorized an expenditure, the Legislature can follow it up and through a committee or a single member aid or control the manner in which the appropriation shall be disbursed. In the instances before us the Legislature has appropriated millions of dollars and yet restricted its expenditures to an approval by two of its members. This approval must be obtained before the lump sum appropriation is segregated, which means, of course, that these legislators have a control and a power over the administrative office or officer to whom the appropriation or for whom the appropriation has been made. These legislators must be consulted and their consent obtained as to the number of employees or the amount of expenditure for supplies or other matters that may be requisite for the doing of the work. The legislator thereupon in reality becomes a part of the administrative office; he functions as an administrator responsible for the due performance of the work. Performance of administrative work depends upon help. The ldnd and nature of the help, or, in other words, the efficiency required for the performance of the work, rests with the approval or disapproval of these members of the Legislature.

The power is immense and in its full exercise may be so arbitrary as to make the Legislature, through its

We need not draw upon our imagination, rather turn to recollection. The past is only valuable for the lessons which it teaches. All of us know from experience that he who has control of the spending of the money, when the money is there to spend, exercises real power for good or for ill.

Personally I can see no escape from the position that the Legislature has absolute control over appropriations. It may make appropriations also upon such conditions and with such restrictions as it pleases. It can create or limit the power of administrative offices. There is one thing, however, it cannot do and that is implied, if not expressed in our Constitution. It cannot exercise the functions of the Executive. It cannot administer the money after it has been once appropriated. If it makes lump sum appropriations, whatever conditions it may attach to its expenditure, it cannot make one of those conditions the approval by one of its own members; that is, to confer upon him the duties of an administrative office. Therefore, while I differ with my learned brother as to his reasons, I arrive at the same conclusion. The duty of the approval to segregation of the various sums appropriated required by the Legislature is not the

There are also other reasons for reversing the judgment below in its principal features. In adopting the amendment to the Constitution now known as the executive budget, it appears to me that there was an attempt made in article IV-A of the State Constitution to provide a new method, given in much detail, for the making of appropriations for the various departments of government. Whatever may have been done before, new methods were to be pursued upon the adoption of this amendment; laws in force at the time fell by the way — the Constitution was to override all of the laws and start with a clean sheet. Thus we find that the head of each department of State government, except the Legislature and the Judiciary, shall submit to the Governor itemized estimates of appropriations to meet the financial needs of such department, including a statement in detail of all moneys for which any general or special appropriation is desired from the Legislature. These shall be classified according to relative importance, and in such form as to give all the information the Governor may require. Copies of these estimates should be simultaneously furnished to the designated representatives of the appropriate committees of the Legislature for their information. On these proposed estimates, the Governor is to have a hearing, to which he shall invite the committees of the Legislature to attend. These representatives of the Legislature shall be entitled to make inquiry in respect to the estimates and the revision thereof. Up to this point, therefore, what do we have ? The needs of the various departments are thoroughly examined into by the Governor and by the Legislature so that when the budget goes to the Legislature, no further inquiry need be made. All information

Certain things seem quite clear to me, and one is that in view of this constitutional amendment, section 139 of the State Finance Law had no further application to the budget bill. It did not touch and could not affect the appropriation thus made. If, for the purpose of reorganizing a department, certain lump sum appropriations were made instead of item appropriations, the segregation was to be made by the department receiving the appropriation and not by the method provided in section 139 of the State Finance Law. The budget bill-as passed was to be and must be complete in itself, without reference to any other law.

The lump sum appropriations, therefore, for the Department of Law, passed by the Legislature and approved by the Governor April 12, 1929, have full force

The appropriation for the Department of Labor of the lump sum of $2,700,000, approved by the Governor April 12, 1929, stands by itself. This sum is to be segregated by the head of that department. Section 139 of the State Finance Law has no application. In so far as the Governor stated in his approval of the appropriations that section 139 was not applicable he was correct.

Various items of appropriation were made for the construction of State works and buildings. The Legislature struck out the items and resubmitted the same items of appropriation, adding, however, a section known as section 11, reading as follows:

“ § 11. No part of any appropriation made by this act for construction shall be expended for personal service except on the approval of the governor, the chairman of the senate finance committee and the chairman of the assembly ways and means committee. This provision may be complied with by the filing with the comptroller and the department of civil service of a list of the positions so approved and the time for which any person may be employed in such position. This provision, however, shall not apply to personal service employed by a contractor, by an institution on construction work done under special fund estimate, by an interstate commission, or on highways.”

These appropriations stand as passed by the Legislature, approved by the Governor, but section 11 has no force or effect whatever; it is not an item of appropriation within the meaning of the Constitution as above explained. If anything, it is an attempted alteration, which is void, according to the terms of that instrument.

The item of $17,800 in the supplemental budget of

The Laws of 1929, chapter 93, authorizing the creation of a State debt and making an appropriation for the construction of State buildings and the items thereof providing for the issuance of State bonds, all to be expended under the direction of the Office Site and Building Commission, as created by the Laws of 1926, chapter 5, and authorizing the transfer of funds, is more than a provision for incidental and temporary duties. Chapter 5 of the Laws of 1926 creates a Commission to consist of the Governor, Superintendent of Public Works, State Architect, Temporary President of the Senate, the Speaker of the Assembly, the Chairman of the Senate Finance Committee and the Chairman of the Ways and Means Committee of the Assembly. The Commission is to be known as the State Office Site and Building Commission. The act provides for the construction, through this Commission, of an office building in Albany. A member of the Legislature serving on such a Commission has never been deemed, in the history of the State, to hold an office or appointment separate and distinct from that of a legislator. His duties on such a Commission are temporary and incidental to the work of the Legislature. Such duties do not rise to the level of an office or an appointment within the meaning of section 7 of article III of the State Constitution. This present Commission, however, as supplemented by chapter 93 of the Laws of 1929, covers more than one object and appears to be one of a permanent nature, extending its powers over many cities and the erection of public buildings therein. The authorization contained in section 14 of chapter 93 of the Laws of 1929 is so broad and extensive as, in my

The point, however, to be applied is this, appropriations made by the Legislature in lump sums are to be segregated by the heads of the departments. Section 139 of the State Finance Law does not apply. The other item appropriation bills stand as legal appropriations, section 11 attached thereto being void. The new items submitted to the Governor, which were in fact new items, referring to but one appropriation and giving but one amount, vetoed by the Governor in part, were vetoed in ioto The Governor cannot veto part of an item.

I am for reversal but upon the grounds I have above stated.

Cardozo, Ch. J., Lehman, Kellogg, O’Brien and Hubbs, JJ., concur with Pound, J.; Crane, J., concurs in result in separate opinion.

Judgment reversed, etc.