Opinion
Review Granted Jan. 21, 1988.
Previously published at 195 Cal.App.3d 886
Ralph Santiago, Abascal, San Francisco, Ralph Lightstone, Sacramento, Claudia E. Smith, Delano, Anthony Mischel, San Francisco, Dennis Hayashi, Oakland, for petitioners.
Robert Barnes, Judith Kurtz, Charles P. Scully II, Donald C. Carroll, San Francisco, Ira Reiner, Dist. Atty., Jan Chatten-Brown, Sp. Asst. Dist. Atty., Los Angeles, Bion M. Gregory, Sacramento, Jack I. Horton, James L. Ashford, and Mark Franklin Terry, as amici curiae, for petitioners.
John K. Van de Kamp, Atty. Gen., N. Eugene Hill, Asst. Atty. Gen., Paul H. Dobson, Lisa Lewis Dubois, Deputy Attys. Gen., for respondents.
BLEASE, Associate Justice.
The California Occupational Safety and Health Act (Cal/OSHA) was enacted in 1973 so that the state might continue to exercise its sovereign powers "to assur[e] safe and healthful working conditions for all California working men and women." (Lab.Code, § 6300.) The enactment is part of a state plan made necessary to avoid the federal preemption of state authority over private occupations by the federal Occupational Safety and Health Act of 1970 (Fed/OSHA). (see 29 U.S.C.A. § 667.) Without change in the substantive law, the Governor reduced the aggregate amount of funds appropriated to the Department of Industrial Relations (DIR) in the 1987 budget bill by $7 million for the announced purpose of terminating California's enforcement of its private sector responsibilities under Cal/OSHA and placing these responsibilities under exclusive federal jurisdiction. The action was taken under his claimed constitutional authority to reduce or veto an item of appropriation (Cal. Const., art. IV, § 10, subd. (b)). Thereafter the respondent Director of DIR (Director) terminated the enforcement of Cal/OSHA in the private sector for lack of funds.
In these original mandamus proceedings petitioners, six workers in private sector employments claim that the Governor's veto exceeded his constitutional authority; that moneys appropriated for the DIR are Accordingly, we will issue a peremptory writ of mandate commanding the Director to enforce the Cal/OSHA program from the aggregate appropriation for the DIR in the Budget Act of 1987 consistent with these conclusions.
FACTS AND BACKGROUND
"California has long looked to a specialized [state] administrative agency to play an important role in protecting the health and safety of working men and women in this state." (United Air Lines, Inc. v. Occupational Safety & Health Appeals Bd. (1982) 32 Cal.3d 762, 766, 187 Cal.Rptr. 387, 654 P.2d 157.) In 1913 California established the Industrial Accident Commission to carry out these functions. The authority was transferred in 1945 to the Industrial Safety Board. The mandate of the agency from early on has been to see that "[e]very employer shall furnish employment which shall be safe for the employees therein...." (Stats.1917, ch. 586, § 34, p. 862; Stats.1937, ch. 90, § 6400, p. 308.) Since the adoption of Cal/OSHA in 1973, Labor Code section 6400 has provided that "[e]very employer shall furnish employment and a place of employment which are safe for the employees therein." (Stats.1973, ch. 993, § 96, urgency eff. Oct. 1, 1973.)
In 1970 Congress enacted Public Law No. 91-596, Fed/OSHA. It authorizes the Secretary of Labor to promulgate standards requiring conditions or the use of practices reasonably necessary to provide safe and healthful employments in places of employment. (See 29 U.S.C.A. §§ 652, 655.) The Secretary of Labor is granted authority to enter any place where work is performed by employees and to inspect for compliance with such standards. (See 29 U.S.C.A. § 657.) Fed/OSHA preempts state law over such matters but provides that if a state submits an acceptable plan for the development and enforcement of occupational safety and health standards federal preemption is removed. (29 U.S.C.A. § 667.) "Under [this] scheme, California is preempted from regulating matters covered by Fed/OSHA standards unless the state has adopted a federally approved plan. [If such a plan is approved] it merely removes federal preemption so that the state may exercise its own sovereign powers over occupational safety and health." (United Air Lines, Inc. v. Occupational Safety & Health Appeals Bd., supra, 32 Cal.3d at p. 772, 187 Cal.Rptr. 387, 654 P.2d 157.)
In 1973 (then) Governor Reagan asked the Legislature to enact legislation so that the state might continue to exercise its sovereign powers over occupational safety and health free of federal preemption. (See Governor's Budget for 1972-73, p. 63; Governor's Budget 1973-74, p. 74; Governor's Budget for 1974-75, pp. 66-67.) In response to that initiative, and as part of a comprehensive revision of California's occupational health and safety statutes, the Legislature acted to reconstitute the Industrial Safety Board as the Occupational Safety and Health Standards Board and to create the division of Occupational Safety and Health as the administering entity. (Stats.1973, ch. 993, urgency, eff. Oct. 1, 1973; See United Airlines, Inc., supra, 32 Cal.3d at p. 766, 187 Cal.Rptr. 387, 654 P.2d 157.) This revision implemented a California state plan for the retention of most of
The state budget bill has traditionally contained items of appropriation showing the aggregate amounts appropriated either to state agencies or for specific programs and also schedules which place ceilings upon the use of the aggregate sum for personnel services and operating expenses. A schedule is not an appropriation but a limitation upon the use to which an appropriation may be put. "Each such schedule is a restriction or limitation upon the expenditure of the respective appopriation ... [and] does not itself appropriate any money, and is not itself an item of appropriation." (Stats. 1987, ch. 135, § 3.00, p. 554.) The budget bill has also contained directions which, together with provisions in the codes, provide a complicated structure for the implementation and adjustment of the appropriations made in the budget statute to changing fiscal realities of state government. We will later discuss the legal significance of these provisions.
To provide for the enforcement of the federally-approved state plan under Fed/OSHA, the budget bill for 1973 appropriated funds to the DIR for the enforcement of Cal/OSHA. It provided in pertinent part, under item number 154:
"For support of Department of 26,164,525 Industrial Relations Schedule: (a)Personal services 22,611,411 (b) Operating expenses and equipment 4,714,974 (c)Reimbursements -324,100 (d)Federal grants -837,760" (Stats. 1973, ch. 129, p. 236.)Budget bills for subsequent fiscal years provided appropriations for DIR in this format (albeit with additional provisions directing specific limitations or conditions for expenditures within the aggregate appropriation) through 1980. (See e.g. Stats.1974, ch. 375, p. 795; Stats.1980, ch. 510, p. 1226.) In 1981 the item for support of DIR was split into state and federal fund components. The schedules included in the state funds items were organized by program, e.g., resolving worker's compensation disputes, $28,796,556, preventing industrial injuries and deaths, $18,937,558. (Stats.1981, ch. 99, pp. 546-547.) This format was continued through 1986. (See e.g. Stats. 1986, ch. 186, pp. 570-572.)
In 1986 the aggregate amount appropriated for DIR in the budget bill was $106,153,000. The Governor reduced this amount to $103,935,000. The budget bill included a schedule for prevention of industrial injuries in the amount of $43,527,000. The Governor reduced this to $42,732,000. An additional schedule showed the receipt of federal funds for support of DIR from the Federal Trust Fund in the amount of $17,864,000. (Stats.1986, ch. 186, pp. 82-83, 570-572.)
The Governor proposed in the budget that he submitted for the fiscal year 1987-1988 that no funds be provided for Cal/OSHA activities in the private sector. A note appended to the summary of program requirements for DIR, entitled "Major Budget Adjustments", says: "A reduction of a total of $22.2 million ($8 million General Fund and $14.2 Federal Funds) and 366.4 personnel years from Cal/OSHA enforcement, regulatory activity, and appeals The budget bill was amended by the Legislature. Initially the amount under schedule (d) of item 8350-001-001 was increased to $42,030,000 and the federal trust fund item to $17,674,000. (Sen. Amend. to Sen. Bill No. 152 (1987-1988 Reg. Sess.) March 2, 1987, pp. 291-292.) These amounts were modified slightly and the following proviso added to item 8350-001-001 in a later amendment: "3. No funds appropriated by this item shall be encumbered for the purposes provided unless the Governor and the Director of the Department of Industrial Relations enforce the full scope of [the Cal/OSHA program]." (Sen. Amend. to Sen. Bill No. 152 (1987-1988 Reg. Sess.) May 27, 1987, pp. 447-448.) By later amendment this proviso was deleted. (Sen. Amend. to Sen. Bill No. 152 (1987-1988 Reg. Sess.) ---- ----, 1987, p. 440.)
The final round of amendments produced the budget bill which, as passed by the Legislature and submitted to the Governor, contains an increase in the aggregate support of DIR to $102,382,000 and an increase in the item for support of DIR from the Federal Trust Fund to $17,633,000. It also contains a single schedule for all programs of DIR, rather than the former tenfold breakout, which is approximately $23 million larger than the sum provided for the combined operations schedules in the budget bill as introduced. (Stats.1987, ch. 135, pp. 513-515.)
The Governor sought to exercise an item veto, by the means provided in the California Constitution, of the funds made available for Cal/OSHA in the aggregate appropriation to the DIR by "append[ing] to the budget bill" which he signed "a statement of the items reduced or eliminated with the reasons for the action" (Cal. Const., art. IV, § 10, subd. (b)), in pertinent part as follows:
"Item 8350-001-001--For support of Department of Industrial Relations. I reduce this item from $102,382,000 to $94,219,000 by reducing: [p] (ax) Program operations from $140,247,000 to $120,775,000,....
"...
"I am deleting 357.8 personnel years and reducing $7,000,000 of the $8,000,000 legislative augmentation to reinstate the Cal/OSHA Program in the private sector. The Department of Labor resumed enforcement of federal job safety and health standards in the private sector worksites effective July 1, 1987. California will continue to provide the necessary public sector responsibilities and consultation services for employees in both the public and private sectors. I believe California employers and employees can be assured that the Federal Government will continue to deliver appropriate services to provide safety in the workplace. I am retaining $1,000,000 of the augmentation to provide funding for the Appeals Board to handle the existing open cases on appeal and continue processing the public sector appeals and to fund the Standards Board to carry out its public sector responsibilities. I am reducing the amount payable to this item from the Federal Trust Fund item by $11,309,000 to correspond to my action taken in Item 8350-001-890.
"...
"Item 8350-001-890--For support of Department of Industrial Relations [from the federal trust fund]. I reduce this item from $17,633,000 to $6,324,000. [p] I am reducing $11,309,000 of the legislative augmentation to reinstate the Cal/OSHA program in the private sector. I am retaining $2,400,000 of the augmentation to provide funding for a contract to facilitate the transition to the federal OSHA program. I am The Governor transmitted to the Senate his statement of the items reduced or eliminated with the reasons for the action. The Senate was put the question: "Shall Item 8350-001-001 of Senate Bill 152 become law notwithstanding the objection of the Governor?" (Sen. J. (1987 Reg. Sess.) p. 2860.) The vote on the question was ayes 25, noes 9; hence the veto action of the Governor was not overridden. (Sen. Daily File (Sept. 11, 1987) pp. 43-45.) A similar result occurred on Senate reconsideration of Item 8350-001-890, ayes 23, noes 9. (Id., at p. 46.)
DISCUSSION
Petitioners concede that the Governor's action in reducing the item of appropriation for the DIR, even if made for an invalid purpose, has reduced the aggregate sum of appropriation of state moneys for that agency, a concession that we have no occasion to review. However, they contend that the consequence of this action is not to void the appropriation of moneys for any specific program or purpose and that the duty of the DIR to enforce the substantive law of Cal/OSHA remains and the funds appropriated for the DIR must be used to that end.
Petitioners do not seek a judicial remedy to restore the deleted funds to the budget act. Accordingly, we do not consider whether or under what conditions an elimination or reduction of an item of appropriation for a legally improper purpose might nullify that action, resulting in the valid appropriation of the funds. Petitioners similarly do not challenge the Governor's veto of the item appropriating federal matching funds from the special federal trust fund earmarked for that purpose. Whether such funds nonetheless are available and may be utilized under other provisions of law to match the funds determined to be available in this action is a question we need not resolve. (But see Stats.1987, ch. 135, § 3.00, p. 554.)
Petitioners argue that the Governor is constitutionally authorized to reduce or veto only the amount of money appended to an item of appropriation as it appears in the text of the budget bill and the purpose set forth in that text governs the use to which moneys remaining after a reduction must be put. Thus, the Governor may not by the act of reduction alter the purposes for which such remaining moneys must be used. These purposes are established by the language of the item of appropriation. Thus, if the money is appropriated for the use of an agency, here the DIR, the effect of a reduction in the aggregate appropriation is simply to reduce the sum available for all of the programs which it is the duty of the DIR to enforce pursuant to substantive provisions of law. The Governor may not legally affect the substance of the laws for which such aggregate amount is available by the specification of an intention not otherwise revealed in the language of the item of appropriation. In essence, the petitioners suggest that the test is a grammatical one, measured by the language of the item of appropriation contained in the affected portion of the budget bill. Accordingly, petitioners claim that, notwithstanding a (concededly valid [ante, fn. 2] ) reduction of moneys for the DIR, the moneys remaining in the appropriation for the DIR after reduction is available for and must be used to administer and enforce Cal/OSHA as required by the applicable substantive law.
The Director does not as a general matter dispute the grammatical test that undergirds petitioners' argument. Rather he argues that this is a special case implicating the Governor's powers over the budget process. He claims in essence that the Governor's budget, notwithstanding that it is not a part of the budget bill, is an integral part of the budget process by which the Governor may control the fiscal agenda of the state and that the Legislature may not alter that agenda by its phrasing of the purpose for which an item of appropriation is to be used. With respect to the 1987-1988 budget, he claims that the Legislature in the budget bill has recast the budget, as originally submitted by the Governor, so as to remove a specific The parties agree that the case involves a fundamental question of separation of powers governed by the California Constitution and that it is one of first impression in California.
I
Our state is founded upon the constitutional principle that the fundamental powers of state government are allocated to separate branches of government. "The powers of state government are legislative, executive, and judicial. Persons charged with the exercise of one power may not exercise either of the others except as permitted by this Constitution." (Cal. Const., art. III, § 3.) "The legislative power of this State is vested in the California Legislature which consists of the Senate and Assembly, but the people reserve to themselves the powers of initiative and referendum." (Cal. Const., art. IV, § 1.) However, the separation of powers is not hermetic; rather they are allocated, as directed by the constitution, within "a government of separated institutions sharing powers." (Neustadt, Presidential Power (1960) 33; emphasis in original.) The general scheme by which powers are shared is similar to that of the federal government: "The sharing of almost any given power is the primary characteristic of our governmental structure, although in each instance one institution has the predominant share of the power. The fact that the remainder is lodged elsewhere provides the system of checks and balances propounded by James Madison. This balance and counterpoint inevitably produce conflict between [branches]." (Abascal and Kramer, Presidential Impoundment Part I: Historical Genesis and Constitutional Framework (1974) 62 Georgetown L.R. 1549, 1557; fn. omitted.) In this case the conflict between the Legislature and the Governor is over a shared legislative power involving the appropriation of moneys for purposes of state governance.
As a general principle the enactment of a statutory appropriation for funding the agencies of state government to enforce the laws entrusted to them is an exercise of the legislative power. (Board of Osteopathic Examiners v. Riley (1923) 192 Cal. 158, 160-161, 218 P. 1018.) Since the inception of the state it has been the law that "the power to collect and appropriate the revenue of the State is one peculiarly within the discretion of the Legislature." (Myers v. English (1858) 9 Cal. 341, 349.) "As an executive officer [the Governor] is forbidden to exercise any legislative power or function except as in the constitution expressly provided." (Lukens v. Nye (1909) 156 Cal. 498, 501, 105 P. 593.) However, the constitution explicitly provides that the Governor shares the legislative power to appropriate money to the extent that he "may reduce or eliminate one or more items of appropriation while approving other portions of a bill." (Cal. Const., art. IV, § 10, sub. (b).)
The attempted exercise of a legislative power not conferred upon the Governor is a nullity. "If he attempts to exercise [such power] in a different mode, or to exercise powers not given, his act will be wholly ineffectual and void for any and every purpose. When he goes beyond the limits of these powers in the attempt to exercise them, his acts, so far as they transcend the powers, are of no force." (Lukens v. Nye, supra, 156 Cal. at p. 502, 105 P. 593.) On the other hand the Legislature may not restrict the scope of constitutional power granted the Governor. At the time II
The question here is whether the Governor's legislative power to veto or reduce an item of appropriation extends to purposes which are not facially apparent in the text of the budget bill. The answer lies in the text of the constitution. (See People's Advocate, Inc. v. Superior Court (1986) 181 Cal.App.3d 316, 226 Cal.Rptr. 640, see also Nunez v. Superior Court (1983) 143 Cal.App.3d 476, 480, 191 Cal.Rptr. 893.) The provisions which speak to the Governor's role in the budget process are contained in article IV, section 12 and section 10, subd. (b) of the California Constitution. We defer for later consideration the application of section 12. Here we address the specific provisions upon which the Governor's item veto is based.
Section 10, subdivision (b) provides that: "The Governor may reduce or eliminate one or more items of appropriation while approving other portions of a bill. The Governor shall append to the bill a statement of the items reduced or eliminated with the reasons for the action. The Governor shall transmit to the house originating the bill a copy of the statement and reasons. Items reduced or eliminated shall be separately reconsidered and may be passed over the Governor's veto in the same manner as bills."
The petitioners' argument focuses on the language of section 10, subdivision (b). The language confines the Governor's action to a "bill" by which money is appropriated. A "bill" is the means by which a statute is enacted. (Cal. Const., art. IV, § 8, subd. (b).) Of importance, the Governor's veto powers are contained in the provisions of the constitution which concern the limited means by which bills, all bills, become law with the concurrence of the Governor. With respect to bills, other than appropriation bills, a bill "becomes a statute if it is signed by the Governor." (§ 10, subd. (a).) The Governor may veto the bill only in its entirety and it then becomes law only by a vote of two-thirds of the membership of both houses.
With respect to appropriations bills, "[t]he Governor may reduce or eliminate one or more items of appropriation while approving other portions of a bill." That action too is subject to being overridden by a two-thirds vote. That did not occur here.
As the parties have posed the issue, it appears first in grammatical dress having to do with the legal effect of the Governor's reduction of an aggregate item of appropriation for the agency which administers and enforces Cal/OSHA.
Section 10, subdivision (b) addresses the Governor's item veto power in the context of a "portion[ ] of a bill." That connotes a grammatically identifiable textual unit of the bill. The textual unit upon which the Governor may act is one which may be reduced or eliminated, an "item of appropriation"; hence a textual provision to which is appended a dollar amount. What may be reduced or eliminated is quite obviously a dollar amount. It makes no sense to say that a purpose may be reduced. Thus the Governor's action in reducing or eliminating a dollar amount leaves intact the language by which the purpose for the appropriation is declared.
Consequently, the legislative action permitted the Governor by article IV, section 10, subdivision (b) is limited to affecting the dollar sums appropriated for purposes specified by the text of the appropriation. Where the amount is merely reduced, the residual text makes for complete sense. The purpose remains; the amount available for that purpose is reduced. However, where the appropriation is vetoed, i.e. eliminated, no coherent language remains to be given effect, the severance of the whole amount from the assigned
Accordingly, the reduction of the aggregate sum appropriated for the DIR leaves a lesser amount for the DIR and that purpose remains in the text of the affected item of appropriation without further limitation. Consequently, whatever laws must be enforced by the DIR remain unimpaired, though the sums available for their enforcement are reduced. (See e.g., California Welfare Rights Organization v. Carleson (1971) 4 Cal.3d 445, 93 Cal.Rptr. 758, 482 P.2d 670.) Later we address the significance of this state of affairs for Cal/OSHA. Next we show the governing case law.
III
An "item of appropriation" is a provision in the budget bill calling for the appropriation of a definite sum of money for a designated purpose. (Wood v. Riley (1923) 192 Cal. 293, 219 P. 966.)
At issue in Wood was the validity of the Governor's veto of an item in the first budget bill enacted after the 1922 amendment to the constitution. (See the historical discussion in § V, post.) The budget bill prepared by the Governor, under a component entitled "educational," separately proposed amounts for the State Board of Education as "salaries, employees," "support," "new equipment," and "free text books." (Assem. Bill No. 999 (1923-1924 Reg. Sess.) p. 11, as introduced February 1, 1923.) The bill was amended in the Legislature and sent to the Governor containing a proviso directing the controller to transfer one percent of the appropriations made for salaries and support of teachers, colleges and special schools "for use by the director of education for the payment of the salaries and support of the general administrative office of the division of normal and special schools...." (Stats.1923, ch. 121, p. 258.)
The Governor objected to this proviso and appended to the bill as signed a statement that "such appropriation is unnecessary and a wilful waste of the money of the taxpayers. The director of education has an ample allowance for running his department if it is put on an economical and businesslike basis." (Stats.1923, ch. 121, p. 261.) The controller declined to transfer the funds under the proviso and the director of education sought a writ of mandate to compel the transfer. (Wood, supra, 192 Cal. at pp. 293-294, 219 P. 966.)
The Supreme Court denied the petition, concluding that the proviso was an item of appropriation and, hence, subject to the item veto. The petitioner argued that the proviso was not an appropriation because it took no money from the state treasury, suggesting this was only an allocation of money otherwise appropriated. The court replied: "In this instance the legislature appropriated a definite maximum amount or 'named sum,' which it in effect directed should be set apart in the treasury and devoted to the payment of particular claims and demands arising by reason of the 'payment of the salaries and support of the general administrative office of the division of normal and special schools during the seventy-fifth and seventy-sixth fiscal years.' The proviso, therefore, appears to fill all the requirements of a distinct item of appropriation of so much of a definite sum of money as may be required for a designated purpose connected with the state government." (Wood, supra, 192 Cal. at p. 304, 219 P. 966.) The court Wood holds that an "item of appropriation" is a provision in the budget bill appropriating a definite sum of money for a designated purpose. Wood teaches that such an item may not be concealed from gubernatorial action by allocating the purpose to funds within another appropriation or by designating the amount of money indirectly through directions for calculation. " '[W]henever the Legislature goes to the extent of saying in any bill appropriating money that a specified sum of money raised by taxation shall be spent for a specified purpose, and that alone, while other sums mentioned in the bill are to be used otherwise, no matter what language it may be disguised under, it is, nevertheless, within both the spirit and letter of the Constitution, an 'item' within the bill, and may be disapproved by the Governor without affecting any other items of appropriation contained therein.' " (Wood, supra, at p. 302, 219 P. 966, quoting from Fairfield v. Foster (1923) 25 Ariz. 146, 214 P. 319, 323.) The implication to be drawn is that if the Legislature does not go to the extent of saying in the bill all that is requisite for a distinct item of appropriation no such item is presented. But if the language of the budget bill prescribes how specified amounts are to be used, that language together with the relevant amounts may be grammatically severed by use of the item veto. (Ibid., also see e.g. Green v. Rawls (Fla.1960) 122 So.2d 10, 14-16; cf. Note, Item Veto Amendment to the Iowa Constitution (1969) 18 Drake L.R. 245; 1 Sutherland Statutory Construction (4th ed. 1985) § 16.08; 63A Am.Jur.2d, Public Funds, § 43, p. 438-442.)
The Supreme Court followed Wood in Reardon v. Riley (1938) 10 Cal.2d 531, 76 P.2d 101. The Legislature added to the item of appropriation for the DIR the direction that "three hundred twenty-eight thousand dollars shall be used for additional safety inspectors; provided, that out of the moneys hereby appropriated the sum of twenty thousand dollars ($20,000) shall be used and spent for the salaries of agents in the Division of Industrial Welfare and for no other purposes, whether in said division of the Department of Industrial Relations or for any other purpose of the State." (Stats.1937, ch. 157, p. 431.) The Governor vetoed these provisions (id., p. 423) and the Supreme Court upheld the validity of his action. (Reardon, supra, at p. 535, 76 P.2d 101.)
The grammatical difficulty in Reardon was whether the veto of subitem of appropriation within an aggregate appropriation for the administering agency necessarily reduced the aggregate sum. The court concluded that it did not. ( Id., pp. 535-537, 76 P.2d 101.) This result is congruent with the concept, advanced above, that an item veto is limited to the discrete textual matter encompassed within the affected item and has the grammatical effect of striking or severing only the text of that item from the appropriations measure, leaving the remaining "portions of the bill" unaffected. (Cal. Const., art. 4, § 10, subd. (b).)
Another application of grammatical severance is made the basis of the opinion of the Attorney General in Appropriation Reduction by Governor, 14 Ops.Cal.Atty.Gen. 181 (1949). At issue was the effect of a declaration appended to the reduction of an appropriation to the Regents of the University of California for research into disposal of sewage, garbage and industrial waste. (Ibid.) The Governor said no part of the reduced appropriation should be available for research into disposal of sewage or industrial wastes because in his opinion those topics should be undertaken by state agencies. (Id., p. 182.) Relying upon Lukens v. Nye, supra, and annotations in American Law Reports, the Attorney General reasoned that "[t]he only authority conferred upon the Governor is to reduce the appropriation or veto the bill in The most recent construction of the reach of the item veto is Harbor v. Deukmejian, supra, 43 Cal.3d 1078, 240 Cal.Rptr. 569, 742 P.2d 1290. In Harbor the Governor argued that his purported item veto action of a provision in a "trailer bill" (a bill containing provisions claimed to implement the appropriations of the budget enactment) affecting the beginning date of aid to families with dependent children (AFDC), related to but separate from the budget bill, should be upheld because the components of an item of appropriation, i.e., the amount and the purpose, were distributed over two bills. The argument, analogous to that advanced here, was made that the Legislature could not by this means insulate the purpose of an appropriation from the Governor's veto power.
The Supreme Court found the argument unpersuasive. "We cannot agree, however, that the appropriation and its purpose were set forth in separate measures. Both were specified in the Budget Act, that is, over $1.5 billion was appropriated for the purpose of funding AFDC. The Governor is bound by this 'purpose' as set forth in the budget [act]. If the Legislature chooses to budget by a lump sum appropriation, he may eliminate or reduce the amount available for the purpose as set forth therein. Here, the Governor not only reduced the 'item of appropriation' as set forth in the budget [act], but he divided it into its supposed component parts, assigned a purpose and amount to the part he disapproved, reduced the total by that amount, and attempted to veto a portion of a substantive bill which he claims contains the 'subject of the appropriation.' We are aware of no authority which even remotely supports the attempted exercise of the veto in this manner." (Id., at p. 1090-1091, 240 Cal.Rptr. 569, 742 P.2d 1290; emphasis added.)
We do not understand the Director to attack this analysis as ordinarily incorrect. He suggests, rather, that the unusual circumstances presented in this case warrant an exception to the usual rule.
IV
The Director contends that a variation from the usual rule is warranted as a counter-measure to cure encroachment by the Legislature upon the Governor's constitutional powers in the budget process. He argues that section 12 of article IV of the California Constitution allocates power to the Governor to determine the priorities of expenditures of the state government and that these provisions should be read as amplifying the scope of the Governor's item veto powers in section 10. He suggests that implicit in this allocation is a limitation on the Legislature's power to recast items of appropriation in a manner that would prevent the Governor from using his item veto power to enforce his budgetary priorities.
The suggested remedy is to view the aggregate amount appropriated to the DIR as implicitly containing elements of appropriation reflecting actions taken by the Governor and the Legislature in the budget process. He asks that we take notice of the fact that the item of appropriation for the DIR in the budget bill as presented by the Governor, read in the light of the Governor's budget, contained no funds for enforcement of Cal/OSHA in private sector employments. He further asks that we note that the Legislature augmented the aggregate funds appropriated for the DIR to restore such funds. Accordingly, the aggregate appropriation for the DIR in the budget bill presented to the Governor implicitly contained an item for Cal/OSHA which the Governor could veto by reduction of the aggregate funds together with a statement of his purpose for doing so appended to that action. The Director views Wood and Reardon as examples of an interpretive approach to the item veto which takes into account the Governor's role in the budget process. Neither Wood nor Reardon support a departure from the The flaw in the Director's argument is the premise that the Legislature has acted improperly. The detailed answer to this argument is contained in the text and circumstances of the enactment of the budget system amendment to the Constitution and the practices and statutory law that have developed in the implementation of the budget system.
A.
Section 12 of article IV is the constitutional source of the budget process. It provides in pertinent part that: "(a) ... [T]he Governor shall submit to the Legislature, with an explanatory message, a budget for the ensuing fiscal year containing itemized statements for recommended state expenditures and estimated state revenues.
Section 12 provides in full: "(a) Within the first 10 days of each calendar year, the Governor shall submit to the Legislature, with an explanatory message, a budget for the ensuing fiscal year containing itemized statements for recommended state expenditures and estimated state revenues. If recommended expenditures exceed estimated revenues, the Governor shall recommend the sources from which the additional revenues should be provided. [p] (b) The Governor and the Governor-elect may require a state agency, officer or employee to furnish whatever information is deemed necessary to prepare the budget. [p] (c) The budget shall be accompanied by a budget bill itemizing recommended expenditures. The bill shall be introduced immediately in each house by the persons chairing the committees that consider appropriations. The Legislature shall pass the budget bill by midnight on June 15 of each year. Until the budget bill has been enacted, the Legislature shall not send to the Governor for consideration any bill appropriating funds for expenditure during the fiscal year for which the budget bill is to be enacted, except emergency bills recommended by the Governor or appropriations for the salaries and expenses of the Legislature. [p] (d) No bill except the budget bill may contain more than one item of appropriation, and that for one certain, expressed purpose. Appropriations from the General Fund of the State, except appropriations for the public schools, are void unless passed in each house by rollcall vote entered in the journal, two thirds of the membership concurring. [p] (e) The Legislature may control the submission, approval, and enforcement of budgets and the filing of claims for all State agencies."
"...
"(c) The budget shall be accompanied by a budget bill itemizing recommended expenditures. The bill shall be introduced immediately in each house by the persons chairing the committees that consider appropriations." There is nothing in these provisions which lends support to the claim that section 12 empowers the Governor to control the means by which Legislature frames the purposes to be served by appropriations in the budget bill or expands upon the limited powers conferred upon the Governor in section 10 to reduce or veto an item of appropriation in an appropriations bill.
The linchpin of the Director's position is the premise that the budget provisions of article IV unmistakably assign the Governor the role of fixing the priority of expenditures. The premise is deeply flawed. The mode of enactment by which the appropriations from the general fund for specified purposes are made is a budget bill. Absent a constitutional restraint the power of the Legislature to reconfigure a bill is plenary. (See Mason, Manual of Legislative Procedure (1979) § 731, subd. 1; cf. People's Advocate, Inc. v. Superior Court, supra, 181 Cal.App.3d at pp. 322-326, 226 Cal.Rptr. 640.) Hence, it is the burden of the Director to show a constraint upon the ordinary prerogatives of the Legislature concerning bills. Since the nature of the asserted constraint is a displacement of legislative power to the Governor, the standard for satisfaction of the Director's burden is a high one. Such an ouster cannot occur "except as in the constitution expressly provided." (See Lukens v. Nye, supra, 156 Cal. at p. 501, 105 P. 593.) While such provision need not be explicit, the directive must arise by compelling implication. (Cf. California Teachers Assn. Section 12 assigns various tasks to the Governor and by necessary implication assigns ancillary power to accomplish these tasks. The Governor prepares the budget and the budget bill. The budget consists of "itemized statements for recommended state expenditures and estimated state revenues." (§ 12, subd. (a); emphasis added.) The budget is "submit [ed]" to the Legislature. (Ibid.; emphasis added.) The budget bill must "itemiz[e] recommended expenditures." (Id., Subd. (c); emphasis added.) Neither "submit" nor "recommend" suggests that the Governor is in a commanding posture. Lastly, the Legislature is given plenary authority to "control the submission, approval, and enforcement of budgets...." (Id., Subd. (e).)
The significance of these provisions is embedded in the historical role which the budget plays in our constitutional system.
B.
When the budget system was adopted into the Constitution in 1922 it encompassed, essentially in their present terms, both section 12 and section 10, subdivision (b), of article IV. (None of the subsequent revisions of the Constitution have been offered as changes to the meaning of the substance of the provision.) The 1922 amendment displaced and repealed former section 29 of article IV which provided: "The general appropriation bill shall contain no item or items of appropriation other than such as are required to pay the salaries of the State officers, the expenses of the government, and of the institutions under the exclusive control and management of the State." The amendment established a budget system and increased the scope of the Governor's pre-existing item veto power by allowing reduction of items of appropriation.
The amendment modified former section 34 of article IV as follows: "The governor shall, within the first thirty days of each regular session of the legislature and prior to its recess, submit to the Legislature with an explanatory message, a budget containing a complete plan and itemized statement of all proposed expenditures of the state provided by existing law or recommended by him, and of all its institutions, departments, boards, bureaus, commissions, officers, employees and other agencies, and of all estimated revenues, for each fiscal year of the ensuing biennial period; together with a comparison, as to each item of revenues and expenditures, with the actual revenues and expenditures for the first fiscal year of the existing biennial period and the actual and estimated revenues and expenditures for the second fiscal year thereof. If the proposed expenditures for the ensuing biennial period shall exceed the estimated revenues therefor, the governor shall recommend the sources from which the additional revenue shall be provided. The governor, and also the governor-elect, shall have the power to require any institution, department, board, bureau, commission, officer, employee or other agency to furnish him with any information which he may deem necessary in connection with the budget or to assist him in its preparation. The budget shall be accompanied by an appropriation bill covering the proposed expenditures, to be known as the budget bill. The budget bill shall be introduced immediately into each house of the legislature by the respective chairmen of the committees having to do with appropriations, and shall be subject to all the provisions of section fifteen of this article. The governor may at any time amend or supplement the budget and propose amendments to the budget bill before or after its enactment, and each such amendment shall be referred in each house to the committee to which the budget bill was originally referred. Until the budget bill has been finally enacted, neither house shall place upon final passage any other appropriation bill, except emergency bills recommended by the governor, or appropriations for the salaries, mileage and expenses of the senate and assembly. No bill making an appropriation of money, except the budget bill, shall contain more than one item of appropriation, and that for one single and certain purpose to be therein expressed. In any appropriation bill passed by the legislature, the governor may reduce or eliminate any one or more items of appropriation of money while approving other portions of the bill, whereupon the effect of such action and the further procedure shall be as provided in section sixteen of this article. Section twenty-nine of this article is hereby repealed. In case of conflict between this section and any other portion of this constitution, the provisions of this section shall govern, except that any item of appropriation in the budget act, other than for the usual current expenses of the state, shall be subject to the referendum. The legislature shall enact all laws necessary or desirable to carry out the purposes of this section, and may enact additional provisions not inconsistent herewith."
The appropriations process under former section 29 was unstructured. Thus, the
C.
The Director relies implicitly upon the consideration that the budget amendment calls for the Governor to prepare a budget bill itemizing recommended expenditures. The level of detail of items of appropriation in a budget bill could vary widely with the generality or specificity of the designation of purpose. In theory a purpose might be designated as minutely as the parts of the salaries of individual employees attributable to particular programs, or units of materials to be consumed by such employees e.g., the pencils to be used by a designated clerk in a designated agency. On the other hand, purpose In Saxton v. Carey (1978) 44 N.Y.2d 545, 406 N.Y.S.2d 732, 378 N.E.2d 95, the highest court of New York held that the degree of itemization was not prescribed by that state's constitution and hence where the Legislature and Governor enacted a budget bill the court would not review the degree of itemization. The court noted: "Itemization is an accordian word. An item is little more than a 'thing' in a list of things. A house is an item, and so is a chair in the house, or the nail in the chair, depending on the depth and purpose of the classification. The specificness or generality of itemization depends upon its function and the context in which it is used." (Id., at p. 550, 406 N.Y.S.2d at p. 734, 378 N.E.2d at p. 98.) In Green v. Rawls, supra, 122 So.2d at p. 14, the Supreme Court of Florida found the authority of the Legislature to make a lump sum appropriation to a state government agency not in question. "[T]he extent to which the legislature must go in dividing appropriations bills into 'items' is nowhere defined, expressly or impliedly, and we agree with the chancellor that the legislature may determine the detail or lack thereof employed provided 'that it may not include in a single item appropriations broader than a single subject (of appropriation) and incidental appropriations connected therewith.' " (Ibid.)
In the text of the first budget bill enacted after the budget system was adopted, there are only two items of appropriation for the predecessor of DIR, the Industrial Accident Commission, one for salary and the other for support. (Stats.1923, ch. 121, p. 246.) In the text of the budget bill considered in Reardon, supra, the appropriation for DIR, excepting the vetoed provisos, is a single item. (Stats.1937, ch. 157, p. 431.) Indeed, under the terms of the budget bill here in issue, as introduced by the Governor, there is but one item of appropriation for DIR. While the bill as introduced has more schedules than the bill presented to the Governor, in each case the bill contains a provision as follows. "Whenever herein an appropriation is made in accordance with a schedule set forth after such appropriation, the expenditures from such item for each category, program, or project included in the schedule shall be limited to the amount specified for such category, program, or project, except as otherwise provided in this act. Each such schedule is a restriction or limitation upon the expenditure of the respective appropriation made by this act, does not itself appropriate any money, and is not itself an item of appropriation." (Sen. Bill No. 152 (1986-1987 Reg.Sess.) as introduced, p. 316; Stats.1987, ch. 135, p. 554.) A similar provision has apparently appeared in budget bills since the format of items and schedules was first employed in the Budget Act of 1941. (See e.g. Stats.1941, ch. 600, p. 2045.) Even if the provision is disregarded, the schedules within the original budget bill are merely lesser lump sums organized by related programs. The original budget bill schedule for preventing industrial injuries, even with Cal/OSHA private sector activities implicitly excised, was an item amounting to almost $20 million.
From the practice of use of lump sum items of appropriation in our budget bills it may be inferred that such a level of detail is sufficient to accomplish the purposes of the constitutional budget system. However, it must be noted that the practice proceeds against the backdrop of the parts of the budget system, as it has evolved, that are outside the budget bill itself. Ordinarily, the use of the lump sum that is appropriated is guided by the detailed information contained in the Governor's budget.
From the outset the Governor's budget has included details concerning numbers of employees by category and salary, costs of materials and services, and cost of equipment Where the Legislature agrees with the Governor's scheme of recommended expenditures the budget provides a detailed blue print for allocation of a lump sum appropriation in the budget bill. Since 1931 there has been a code provision requiring state agencies for whom appropriations have been made to submit to the department of finance a complete and detailed budget for the ensuing fiscal year which, upon approval, becomes a binding expenditure limit. (Former Pol.Code, § 677a, Stats.1931, ch. 325, § 9, p. 847; Former Pol.Code, § 677.5, Stats.1935, ch. 189, § 2, p. 851; Gov.Code, §§ 13320-13326.) The budget bill contains a provision which subjects every appropriation to compliance with this fiscal year budgeting scheme. (E.g. Stats.1933, ch. 278, § 4, p. 839; Stats.1987, ch. 135, § 31.00, p. 578 ["The appropriations under this act, unless otherwise provided, shall be subject to the provisions of Section 13320 of the Government Code [and other designated provisions] requiring expenditures to made in accordance with the allotments and other provisions of fiscal year budgets approved by the Department of Finance."].) This provision, as the Director notes, directs the Department of Finance to prescribe all established positions whose continuance for the year is approved and all new positions. Other provisions require the Department of Finance to estimate the personnel-years proposed for the budget year. (Stats.1987, ch. 135, § 29.00, p. 577.) This suggests that information can be gleaned from the budget process that enables such a calculation to be performed.
There is no express provision of law which binds the agencies to submit a fiscal year budget which conforms to the Governor's budget as approved by the Legislature. However, the discretion of the agency to formulate a fiscal year budget and of the Department of Finance to approve such a budget is guided by the Governor's budget when approved by the Legislature. (See Glasner v. Department of Public Health (1967) 253 Cal.App.2d 727, 61 Cal.Rptr. 415 [layoff was justified by lack of funds where budget proposed elimination of a nonstatutory position and Legislature accepted the proposal]; cf. the Budget Act of 1987 which permits the Department of Finance to revise schedules of appropriation, "where such revision is of a technical nature and is consistent with legislative intent"]; Stats.1987, ch. 135, § 1.50, subd. (d), p. 76, also cf. e.g. Irelan v. Colgan (1892) 96 Cal. 413, 415, 31 P. 294.)
The system appears to be well summarized in the following synopsis from Legislative Review of the Budget in California, supra. "Appropriations are made in lump sums, but practice ensures a high degree of legislative control over the application of funds. Each support appropriation contains [schedules that are subitems].... Each subitem is an upper limit on expenditures. Capital outlay appropriations frequently have a schedule of projects, and each item in the schedule is a limitation on expenditure for that project. However, the budget act regularly empowers the Director of Finance to allow transfers between projects or object categories under any item of appropriation. A quarterly report of such transfers must be made to the [Legislature].... [p] Legally, then, there is wide discretion in the execution of the budget. In practice, however, control is more strict, for it is understood that the administrative agencies will not normally spend money for specific positions, items of equipment or operating expenses deleted by the legislature. If a new secretarial position, a replacement of a desk, or printing of a bulletin is disallowed by the legislature, the secretary will not be hired, nor the desk bought, nor the bulletin printed. Only under the most exceptional circumstances The Director infers from the practices that have developed under the budget system that the Governor's budget is recognized by usage as a subtext of the budget bill, incorporated by implication. The usage and practices of the budget system, however, do not afford precedential directions for the unusual circumstances of this case. Here, the Legislature has indicated that it rejects an essential assumption that underpins the detailed scheme for the DIR appropriation that is presented in the Governor's budget. To say that the Legislature is not free to do so because the Governor's budget undergirds the budget act when the Legislature accepts that premise begs the question. Here, unless the Legislature is constitutionally constrained, the meaning of the reduced appropriation for DIR cannot be definitively ascertained by reference to the Governor's budget, because there is no convergence as to meaning on the part of the Legislature and the Governor.
V
We do not find in the context of the adoption of the budget system any compelling indication that the Governor is meant to have the last word concerning the scheme of itemization of expenditures. Of course, the concept of a budget system implies both comparison of revenues and contemplated expenditure and some degree of itemization of expenditure. However, as discussed previously, there is a range of degree of detail in itemization which meets the general conceptual purposes of a budget system. That the Governor is assigned the task of originating the budget and the budget bill is not contradictory of plenary legislative authority to reshape the budget bill. So long as the legislative product itself is itemized reasonably the purposes of a budget system can be served regardless who controls the agenda. None of the arguments in favor of the 1922 budget amendment are incompatible with residual legislative power to amend the budget bill to recast items of appropriation.
The Director's argument, in effect, is that we should read into section 12 a provision saying the Legislature may not amend the budget bill to change the scope of items of appropriation recommended by the Governor. It is noteworthy that some states have adopted constitutional budget provisions that do restrain the power of their Legislatures to amend the budget bill drafted by their Governors. Two such states are New York and West Virginia. In New York, where the constitution prohibits any alteration of the budget bill, the court of last resort has held that the Legislature may not amend the bill by striking detailed itemization and replacing it with a lump sum item. (People v. Tremaine (1939) 281 N.Y. 1, 21 N.E.2d 891.) The New York court reasoned that the addition The West Virginia Constitution restricts amendment of the budget bill less sweepingly. There the court of last resort has held amendment changing detail is not permitted, but that an amendment striking detail and replacing a detailed item with a lump sum item is permissible. (State ex. rel. Brotherton v. Blankenship (1975) 158 W.Va. 390, 214 S.E.2d 467.) In that case the Governor of West Virginia submitted in the budget bill an item of appropriation for state aid to schools with a list of included components and specified amounts of money for each component. (Id., 214 S.E.2d at pp. 487-488.) The component list included amounts specified for pay increases for professional and support personnel. (Ibid.) The Legislature wished to provide the pay increases by means of a different funding mechanism apparently requiring more money. (Ibid.) The Legislature excised all of the included components listed in the original budget bill and left a single undifferentiated lump sum item augmented in amount sufficiently to employ its favored funding mechanism. (Ibid.) When the bill was presented to the Governor he reduced the amount back to that he had proposed with a notation incorporating by reference a component list similar to that which he had originally proposed. (Id., 214 S.E.2d at p. 489.) The Supreme Court of Appeals of West Virginia found this a novel and unwarranted exercise of the veto power. (Id., 214 S.E.2d at pp. 490-491.)
The New York provision, in pertinent part, is 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." (N.Y. Const., art 7, § 4.)
The West Virginia provision in, pertinent part, is as follows: "The Legislature shall not amend the budget bill so as to create a deficit but may amend the bill by increasing or decreasing any item therein: ...." (W.Va. Const., art. VI, § 51, subd. (B)(5).)
The court in Blankenship reasoned that the veto power is essentially a negative power and the attempt to respecify itemization was an attempt to use the veto power in an affirmative fashion. (Id., 214 S.E.2d at p. 490.) Since the Governor had not been given affirmative legislative power, the court held the attempt ineffectual save as a recommendation to the Department of Education. (Id., 214 S.E.2d at pp. 490-491.) "If [the power to legislate] had been intended, it would have been granted by the people to the Governor explicitly." (Id., 214 S.E.2d at p. 491.) The holding was rendered despite the provision of the West Virginia Constitution which restricts amendment of the budget bill. (Id., 214 S.E.2d at p. 478.) That provision had previously been interpreted to preclude the addition of specification of detail by the Legislature where the Governor objected. (Ibid.) We draw from the contrast between Blankenship and People v. Tremaine, supra, that even where the power to amend a budget bill is expressly fettered in the words of the constitution, where the limitation is ambiguous it is construed in favor of continuation of legislative power to amend.
As related, in our constitution there is no provision in the text that says the legislative power to amend is diminished as to budget bills. (Compare former art. XI, § 8, prohibiting amendment of city charters submitted for approval, discussed in Brooks v. Fischer (1889) 79 Cal. 173, 176, 21 P. 652.) Silence can be an aid in constitutional interpretation. (See e.g. Tribe, Toward a Syntax of the Unsaid: Construing the Sounds of Congressional and Constitutional Silence (1982) 57 Ind.L.J. 515.) Silence in this instance is a strong indication of a constitutional policy choice that legislative amendment of the budget bill is to be permitted.
The following post-adoption synopsis of the effect of the 1922 budget amendment was proffered by the executive secretary of the Commonwealth Club of California, the organization that was the proponent of the amendment. "WHAT THE NEW SYSTEM DOES [p] The amendment gives the sanction of law to the state budget system, fixes on the governor the responsibility for The highlighted remark concerning amendment is more than unwitting speculation. The import of the absence of an express limit on amendment of the budget bill is underlined by comparison of our Constitution's budget provision with that of Maryland. The ballot argument in support of the 1922 budget amendment announced the Maryland budget plan was the model for California. However, the drafters chose to omit from the language of the California budget proposal this provision in the Maryland Constitution: "[T]he [Legislature] may amend the [budget] bill by increasing or diminishing the items therein relating to the [Legislature], and by increasing the items therein relating to the judiciary, but except as hereinbefore specified, may not alter the said bill except to strike out or reduce items therein...." (Maryland Const., art. III, former § 52, as amended by the Act of 1916, ch. 159, ratified November 7, 1916.) The omission plainly indicates a choice leaving the legislative power to amend unimpaired under California's budget system.
A.
The Director's principal argument for an implicit restriction of the Legislature's power to amend the budget bill is that the recognition of such power will lead to the disintegration of the budget system in the future. "If petitioners' line of reasoning is followed, the next step for a Legislature hostile to a future Governor will be to make a lump sum appropriation for each department or, by artfully drafted language, to consolidate the funds for virtually the entire state government...." This argument of reduction to absurdity is unpersuasive. We decline to speculate upon the constitutional constraints that might apply in circumstances more grotesque than here presented. However, a decision upholding the Legislature's power to amend the budget bill in the manner in issue in these circumstances does not presage the outcome of every conceivable conflict between the Governor and the Legislature in the budget arena. Indeed, we discern no broad incentive for employment of this device by the Legislature. Moreover, in the limited circumstances where the Legislature may have such an incentive there is a policy consideration which impels upholding the Legislature's action.
The Legislature's incentive to disavow the detail of the Governor's budget arises only because the Governor's scheme of recommended expenditures is an effort to repeal, by fiscal means, an existing statutory regulatory program. If there is no existing law compelling use of a lump sum item of appropriation to fund a program under the sway of the Governor in his executive capacity, the absence of budgetary detail merely affords the Governor discretion to employ the appropriation as the Governor sees fit. Hence, the Legislature cannot block the Governor's priority scheme of expenditures by disavowing the Governor's budget, unless that budget proposes to alter existing statutory law. Use of the budget system to amend or repeal existing statutes itself presents a serious constitutional problem. Where the Legislature refuses to accept such use of the budget system, upholding the Legislature avoids the single subject rule problem that would otherwise arise.
The Governor's scheme of recommended expenditures for DIR in the budget is a proposal to repeal by fiscal means the statutory scheme establishing Cal/OSHA. As related, California's health and safety statutes were comprehensively revised in 1973 in response to the Federal Occupational The purpose of the comprehensive revision is manifest in context and is expressly set forth in the enactment's urgency declaration. "The purpose of this act is to allow the State of California to assume responsibility for development and enforcement of occupational safety and health standards under a state plan pursuant to Section 18 of the Federal Occupational Safety and Health Act of 1970 (Public Law 91-596) which was enacted December 29, 1970. Until the provisions of this act become effective, the Division of Industrial Safety will not have the authority and other statutory provisions to conduct an occupational safety and health program as effective as that of the United States Department of Labor. Employers will continue to be subject to inspection by the federal officials and the authority of the California Division of Industrial Safety will be subject to question until California has an occupational safety and health program as effective as the federal program." (Stats.1973, ch. 993, § 107, pp. 1954-1955.) This statutory scheme states a public policy that California shall undertake as an ongoing matter to pay the costs of exercising "its own sovereign powers over occupational safety and health." (United Air Lines, Inc. v. Occupational Safety & Health Appeals Bd., supra, 32 Cal.3d at p. 772, 187 Cal.Rptr. 387, 654 P.2d 157.)
The wisdom of the statutory policy to pay the price of exercise of states' rights under the federal occupational safety and health scheme is, of course, not within our purview. Whether regulation is more appropriately conducted by the state or federal government is a shifting, political question. (See Schwartz, Federalism Then and Now (August 1987) 7 Cal.Lawyer 52.) If the cost of the exercise of states' rights under this federal scheme is broadly perceived to outweigh the value of local control doubtless some constitutional means may be employed to terminate Cal/OSHA. However, repeal of existing statutes by fiscal strangulation in the budget bill is an extraordinary and constitutionally suspect mode of procedure.
In Vandegrift v. Riley (1934) 220 Cal. 340, 355-358, 30 P.2d 516, the Supreme Court considered the effect of a proviso to an item of appropriation for the support of the Department of Finance which barred the use of the appropriation for the salary and expenses of the chief of the division of service and supply. This circumstance was found perplexing. "We are therefore confronted by a situation wherein a state officer is provided for by statute, his salary is fixed in the manner prescribed by law, his service is required in order that one of the most important departments of the state may function, yet the budget enactment purports to say that his salary and expenses shall not be paid from any appropriation made for the support of the department of which he is a constituent member. We are at a loss to know why this condition of the law was permitted to stand. It certainly was not designed, for it cannot be assumed that the legislature would intentionally create a situation where an officer of the state, whose duties are necessary to the operation of the state government, should receive no compensation. It may have been that bills were introduced in the last legislature looking to a reorganization of the department of finance and the abolishment of the office of chief of the division of service and supply and that such bills failed of passage." (Id., at p. 356, 30 P.2d 516.) The expression of perplexity is a VI
The court decided, nonetheless, that the appropriation as enacted, did preclude use of the funds for the prohibited purposes, pointing out that other means might exist for funding the position. (Id., 220 Cal. at pp. 356-357, 30 P.2d 516.) The chief ultimately obtained remuneration under former section 1029 of the Political Code in Meyer v. Riley (1934) 2 Cal.2d 39, 38 P.2d 405. The high court reiterated its difficulty in understanding this product of the legislative process. (Id., at p. 42, 38 P.2d 405.)
The constitutional basis for this criticism is explicitly raised in Association for Retarded Citizens v. Department of Developmental Services (1985) 38 Cal.3d 384, 211 Cal.Rptr. 758, 696 P.2d 150. The Budget Act of 1982 said that the Director of the Department of Social Services "shall establish priorities for expenditure of funds [by the regional centers]. These priorities, insofar as possible, shall be consistent with the Lanterman Developmental Disabilities Services Act, and, when formally transmitted to regional centers by the Director of the Department of Developmental Services, shall govern the authorization for and expenditure of these funds." (Stats.1982, ch. 326, § 4300-101-001, p. 1222.) The Director of the Department of Social Services issued priorities purporting to bar regional centers from providing certain categories of services. (Association for Retarded Citizens, supra, at p. 390, 211 Cal.Rptr. 758, 696 P.2d 150.) The Supreme Court decided that the existing statutes assigned discretion to regional centers over the manner in which they provided services. (Id., at p. 391, 211 Cal.Rptr. 758, 696 P.2d 150.) Accordingly, the high court found the priorities void. (Ibid.)
The Director of the Department of Social Services (DSS) relied upon the aforementioned language in the Budget Act of 1982. The Supreme Court held the reliance unavailing, reasoning as follows: "Construed as defendants urge, this language would raise serious constitutional questions under the single subject rule, which provides: 'A statute shall embrace but one subject, which shall be expressed in its title.' (Cal. Const., art. IV, § 9.) When the Attorney General was considering whether similar language in the Budget Act of 1981 authorized the issuance of binding spending 'guidelines,' he reasoned as follows: under this rule, ' "the budget bill may deal only with the one subject of appropriations to support the annual budget," ' and thus ' "may not constitutionally be used to grant authority to a state agency that the agency does not otherwise possess" ' or to ' "substantively amend[ ] and change[e] existing statute law." ' (64 Ops.Cal.Atty.Gen. [1981] 910, 917.) On this rationale, he concluded that the Budget Act of 1981, construed so as to uphold its constitutionality, did not grant DSS the authority to impose binding spending 'guidelines' on the regional centers concerning the provision of services or the operation of their programs. (Id., at p. 918.) [p] In order to avoid any doubt about the validity of the Budget Act, we decline to construe it as defendants urge. The Budget Act, therefore, does not change the result: the purported Priorities are void." (Association for Retarded Citizens, supra, at p. 394, 211 Cal.Rptr. 758, 696 P.2d 150.)
It is apparent that the present Governor accepts as a constitutional precept that the budget bill may not lawfully be used to work a "substantive change of law." The Governor's item veto message to the Budget Act of 1987 has numerous assertions that particular item vetoes are grounded on the constitutional impropriety of provisos added by the Legislature which represent "a substantive change of law which can only be included with a single subject bill, not the Budget Act." (e.g. Stats.1987, ch. 135, p. 3.)
Where a statutory scheme contemplates ongoing administration of a regulatory scheme by a state agency, a budget decision not to fund such activity at all amounts to at least a temporary repeal of the existing statutory scheme. Thus, a budget bill restriction on use of the appropriation for DIR for Cal/OSHA private sector enforcement would present the same serious constitutional questions under the single subject rule to which the Supreme Court adverted in Association for Retarded Citizens, supra. The Supreme Court in Board of Osteopathic Examiners v. Riley, supra, 192 Cal. at pp. 160-161, 218 P. 1018, considered the claim that the appropriation provision in an initiative establishing a state board was beyond the scope of the initiative power. "The provision in many of these statutes by which boards and commissions of various kinds are required or permitted to collect fees and charges in the exercise of their functions, while incidental to the main purpose of their creation, are none the less in many instances essential to the proper exercise of their powers, particularly where these are regulatory in character. We entertain no doubt, therefore, that the initiative law of 1922 providing for the formation of the Board of Osteopathic Examiners, and also providing the method for the function of said self-sustaining board through a system of fees and collections, and further providing that the moneys to be thus derived should be deposited in the state treasury in a special fund, which was in turn to be drawn upon for the salaries, costs, and expenses of said board, was, as a whole, within the proper sphere of initiative legislation." (Ibid.) Whenever a regulatory agency is created without a provision limiting its time of existence, the statute which creates the agency implicitly directs that some reasonable level of appropriation be forthcoming in the future. (See Note, The Constitutionality of Budgeting by Statewide Statutory Initiative in California (1978) 51 So.Cal.L.R. 847, 867.) Indeed it has been suggested, unsuccessfully, that creation of a judgeship so necessarily implies an appropriation that the act of creation is void absent the prerequisite of an appropriation. (See Brown v. Superior Court (1982) 33 Cal.3d 242, 252-256, 188 Cal.Rptr. 425, 655 P.2d 1260 (dis. opn. of Richardson, J.).)
The constitutional budget system does not contemplate the repeal of existing statutes establishing regulatory agencies by refusal to appropriate funds essential, i.e., minimally necessary, for the proper exercise of the regulatory powers of the agency. This presupposition is shown in the ballot argument in support of the 1922 budget amendment, in the observation: "The administrative machinery is definitely established, and the cost of running various departments should be accurately estimated and expenditures conform to such estimates." The conceptual separation between statutory creation or destruction of an agency and the recurrent budgetary provision of funding is also evidenced in the remarks of Governor Young appended to the budget act in 1929: "It is evident that savings will be made as the result of consolidations to be effected under the bills for reorganization of various state activities. These savings, however, will be accomplished within the budget itself, and reflected in unexpended balances at the close of the biennium. I therefore feel that I should not at this time make further changes in the budget appropriations passed by the Legislature, in anticipation of legislation not yet finally enacted." (Stats.1929, ch. 39, p. 82.)
The subject of the budget act, at least when there are sufficient revenues to defray all minimally necessary expenses of existing agencies, does not appear to include the creation or extinction of those agencies. The subject of establishing or disestablishing a regulatory program is a topic that calls for deep consideration of the benefits and disadvantages of such an ongoing program. The existing law establishing regulatory programs manifests the substantive choices that the program continue as specified to the extent specified. That is law which is difficult to see as the subject of the budget act. The subject of the budget act appears to be choices of levels of expenditures appropriate to effectively carry out existing law, rather than alteration of existing law calling for such expenditures.
We imply no view on the resolution of this single subject question in a situation where such an appropriations limitation is contained in the budget bill passed by the Legislature and approved by the Governor. Such a situation would present a difficult, perhaps insuperable, remedial problem regardless of the resolution of the question of single subject rule propriety. However We do not perceive this novel method of lawmaking to have been intended by the adoption of the budget system. A presupposition of the budget system is that expenses required by existing law will be met. This leaves an enormous range of expenditures within the proper ambit of the budget system. The alternative to upholding the Legislature's amendment of the budget bill here in issue is to confer upon the Governor and a legislative minority the power to repeal statutory law. The single subject rule questions raised in Association of Retarded Citizens, supra, are pallid in comparison to questions raised by such a gross departure from the constitutionally prescribed method for making statutory law.
VII
The director tenders two residual claims of inability to employ the funds appropriated for DIR to enforce Cal/OSHA in the private sector. He contends that the Cal/OSHA program has been terminated because federal law confers upon the Governor plenary power to elect to withdraw state participation and that the Governor has exercised this prerogative to terminate the Cal/OSHA program. The Director also contends that the invocation by the federal government of concurrent jurisdiction over worker safety in the private sector in response to the Governor's veto of state funds has ousted the DIR of jurisdiction under Labor Code section 6303, subdivision (a). Neither contention has merit.
Fed/OSHA regulations provide that: "A State may ... voluntarily withdraw its plan, or any portion thereof, by notifying the Assistant Secretary in writing setting forth the reasons for such withdrawal." (29 C.F.R. § 1955.3, subd. (b); emphasis added.) The Director argues that under federal law, for purposes of this regulation, the Governor is the state (L'etat c'est moi). The Director finds support for this claim in, e.g., 29 U.S.C.A. section 672, subdivision (c): "The Governor of the State shall designate the appropriate State agency for receipt of any grant made by the Secretary under this section." We disagree.
We do not perceive in these provisions an intent to oust the state constitutional structure of separation of powers. The only sensible reading to give this usage is that the federal law is meant to take state governors as it finds them, subject to the ordinary restraints that are imposed by state constitutions, and as permitted by them, the constraints of statutory law. Under the California Constitution, article V, section 1, the Governor is expressly subjected to the legislative power in the performance of his duties: "The Governor shall see that the law is faithfully executed." As related, statutory law calls for continuance and enforcement of Cal/OSHA. The Governor cannot faithfully execute that law by unilaterally acting to render it a nullity. We find the argument that federal law intended to encroach upon the fundamental relations of the branches of state government in the manner suggested by the Director entirely untenable.
The Director's remaining argument is that the invocation of concurrent jurisdiction by the federal government over private sector employments has ousted the state of its jurisdiction by virtue of Labor Code section 6303, subdivision (a). He relies upon Troy Gold Industries, Ltd. v. Occupational Safety and Health Appeals Bd. (1986) 187 Cal.App.3d 379, 231 Cal.Rptr. The circularity of this argument is immediately apparent. As petitioners point out, such a reading of the Labor Code would have strangled Cal/OSHA at its inception, since concurrent federal jurisdiction was retained for several years until the fledgling state program had satisfied federal administrators of its prowess. (See 29 U.S.C.A. § 667, subd. (e).) It is elementary that a reading of a statute that gives rise to absurd results is disfavored. (See e.g. 2A Sutherland, Statutory Construction (4th ed. 1984) § 45.12.) The present circumstances are analogous to the exercise of concurrent jurisdiction at the inception of Cal/OSHA. While concurrent jurisdiction is manifestly being actively exercised under Fed/OSHA, that temporary jurisdiction by reason of default is not "vested by law" in Fed/OSHA authorities within the contemplation of that term in section 6303, subdivision (a). The purpose of section 6303, subdivision (a) is to allocate state resources efficiently. (See Troy Gold, supra, 187 Cal.App.3d at p. 386, 231 Cal.Rptr. 861.) Ongoing duplicative operations are proscribed. Here, however, the duplication, if any, is transitional, pending its restoration as required by state law. The policy of the Cal/OSHA scheme is unmistakable that such transitional inefficiency is not within the ambit of section 6303, subdivision (a).
CONCLUSION
In summary, we find no limitation of the Legislature's power to amend a bill in the text of article IV, section 10. Nor is such a limitation implicit in the provisions for a budget system provided in article IV, section 12. Neither the budget system as adopted nor its legislative history evinces an intent to fetter the power of legislative amendment to an appropriations bill. Vindication of the Legislature's exercise of the power to amend averts serious constitutional questions concerning the implied repeal of existing statutes via the budget bill. Federal law does not give unilateral power to the Governor to terminate Cal/OSHA. Finally, temporary federal concurrent jurisdiction has not ousted DIR from work places in the private sector under state law. For these reasons, we hold that the Governor's declaration of the effect of his reduction of the items of appropriation for DIR in the budget bill has no effect as an item veto of the funds for Cal/OSHA private sector activities.
The result of the amendment of the budget bill and the unchallenged reduction of these items of appropriation is that there is a lump sum appropriation for DIR which is available to the Director to expend to meet all of the mandatory duties assigned by existing statutes to DIR. The Director must allocate such moneys for the administration and enforcement of Cal/OSHA in the private sector as are necessary to carry out these duties.
The invocation of concurrent federal jurisdiction presents a genuine prospect that federal preemption of Cal/OSHA may be forthcoming absent an expeditious resolution of this controversy. Such preemption could render this matter moot. Moreover, Let a peremptory writ of mandate issue directing the respondent Director of the Department of Industrial Relations to allocate funds from the items of appropriation for the department in the Budget Act of 1987 to enforce Cal/OSHA in a manner consistent with this opinion.
PUGLIA, P.J., and SPARKS, J., concur.