Oneida County v. Berle

• Court: New York Court of Appeals
• Writing for the Court: PER CURIAM; COOKE
• Citation: 427 N.Y.S.2d 407,404 N.E.2d 133,49 N.Y.2d 515
• Parties: , 404 N.E.2d 133 In the Matter of COUNTY OF ONEIDA et al., Respondents, v. Peter A. BERLE, Individually and as Commissioner of the Department of Environmental Conservation of the State of New York, et al., Appellants.
• Decision Date: 01 April 1980

Page 407

427 N.Y.S.2d 407 49 N.Y.2d 515, 404 N.E.2d 133 In the Matter of COUNTY OF ONEIDA et al., Respondents,
v.
Peter A. BERLE, Individually and as Commissioner of the
Department of Environmental Conservation of the
State of New York, et al., Appellants. Court of Appeals of New York. April 1, 1980.

Page 409

Robert Abrams, Atty. Gen. (Joseph J. Micare and Shirley Adelson Siegel, Albany, of counsel), for appellants.

Donald E. Keinz, County Atty. (Rocco S. Mascaro, Utica, of counsel), for County of Oneida, respondent.

Robert J. Rossi, County Atty. (John R. Voninski, East Syracuse, of counsel), for County of Onondaga, respondent.

Louis A. Haremski, Buffalo, for County of Erie and others, respondents.

Allen G. Schwartz, Corp. Counsel, New York City (L. Kevin Sheridan, Stephen P. Kramer and Nancy Stassinopoulos, New York City, of counsel), for City of New York, amicus curiae.

OPINION OF THE COURT

PER CURIAM.

At point is whether the State Director of the Budget, acting as agent of the Governor, may refuse to spend $7 million appropriated by the Legislature to aid municipalities in operating and maintaining sewage treatment works. Responding to the issue, it is held that no authority inheres in the Governor under the State Constitution to impound funds appropriated by law and that the instant appropriation statute conferred no discretionary authority upon the Director of the Budget to disapprove otherwise proper expenditures.

In this consolidated proceeding, petitioners, local municipalities and their representatives, assert that they have improperly been denied State reimbursement for the operation and maintenance of sewage treatment works. ¹ Specifically, they urge that the Budget Director, invoking an inherence of authority allegedly reposed in the Governor, illegally impounded $7 million out of $26 million appropriated by the Legislature for State fiscal year 1976-1977. ² In the executive budget for that fiscal year, the Governor recommended a $12 million appropriation for the sewage works reimbursement

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program. During the budgetary process, the Legislature added $14 million to the recommendation and passed a total appropriation of $26 million. ³ Although the Governor possesses item veto power over appropriation measures (N.Y.Const., art. IV, § 7), he chose not to exercise it, and approved the bill presented to him by the Legislature.

Nonetheless, the Director of the Budget decided, apparently in early October, 1976, "to reduce the allocations made by the State for the maintenance and operation of local sewage treatment systems." By letter dated October 7, 1976, the director explained that his "action in this matter is one instance of a necessarily comprehensive effort to tighten State spending." Stated simply, then, the director refused to expend, or impounded, $7 million of the total appropriation. Special Term, while praising the endeavor to attain fiscal responsibility, held that the executive impoundment constituted an invasion of the legislative domain. A unanimous Appellate Division affirmed, on the opinion of Special Term.

On this appeal, the Budget Director, as well as the remaining respondents, points to no express provision of the Constitution empowering the Governor to refuse to expend appropriated funds. Rather, he offers a dual justification for his action. The director urges that the Governor, as the Chief Executive Officer of the State, has an obligation to maintain a balanced budget throughout the fiscal year and, to accomplish that goal, possesses implied constitutional power to reduce duly enacted appropriations. Alternatively, respondents maintain that the appropriation statute invested the director with discretionary authority to withhold funds designated for the sewage treatment aid program. These arguments are rejected. ⁴

The constitutional argument, while simple, is fatally flawed. It is true, as respondents maintain, that opinions of this court have recognized the Governor's constitutional obligation to propose a balanced budget. (Wein v. State of New York, 39 N.Y.2d 136, 141, 383 N.Y.S.2d 225, 347 N.E.2d 586; see Wein v. Carey, 41 N.Y.2d 498, 503, 393 N.Y.S.2d 955, 362 N.E.2d 587). But at no time has the court suggested that, once a budget plan is enacted, revenues and expenditures must match throughout the fiscal year. At any isolated point in time in the spending year, there must, as a practical matter, be some gap between the two. Recognizing this reality, the court has but recently disclaimed any obligation on the part of the State to maintain a balanced budget. "(I)t is unattainable for any budget plan, perfectly and honestly balanced in advance, to remain in balance to the end of the fiscal year. There must * * * in every year be either a deficit or a surplus." (Wein v. Carey, supra, at p. 504, 393 N.Y.S.2d

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at p. 959, 362 N.E.2d at p. 591). Thus, respondent's premise is untenable.

Given the absence of an obligation to maintain a balanced budget, the constitutional argument falters. For if the executive branch is under no duty to reduce expenditures or raise revenues in order to retain an equilibrium as the year progresses, it can hardly possess implied power unilaterally to "reduce" a lawful appropriation. It is not possible to speak of the necessity for implying power to perform a nonexistent duty. ⁵

Nor would the implication of executive power to impound funds be consistent with our constitutional form of government. ⁶ Our State Constitution establishes a system in which governmental powers are distributed among three co-ordinate and coequal branches (see N.Y.Const. art. III, § 1; art. IV, § 1; art. VI; Matter of Nicholas v. Kahn, 47 N.Y.2d 24, 30, 416 N.Y.S.2d 565, 389 N.E.2d 1086; Saxton v. Carey, 44 N.Y.2d 545, 406 N.Y.S.2d 732, 378 N.E.2d 95). Extended analysis is not needed to detail the dangers of upsetting the delicate balance of power existing among the three, for history teaches that a foundation of free government is imperiled when any one of the co-ordinate branches absorbs or interferes...