Southern Industrial Institute v. Lee, 3 Div. 218

• Decision Date: 17 June 1937
• Docket Number: 3 Div. 218
• Citation: 234 Ala. 404,175 So. 365
• Parties: SOUTHERN INDUSTRIAL INSTITUTE v. LEE.
• Court: Alabama Supreme Court

175 So. 365

234 Ala. 404

SOUTHERN INDUSTRIAL INSTITUTE v. LEE.

3 Div. 218

Supreme Court of Alabama

June 17, 1937

Appeal from Circuit Court, Montgomery County; Walter B. Jones Judge.

Petition of the Southern Industrial Institute for mandamus to Chas. W Lee, as comptroller of the state of Alabama, and for a declaratory judgment. From a judgment for respondent petitioner appeals.

Reversed and remanded.

Jacob A. Walker, of Opelika, for appellant.

A.A Carmichael, Atty. Gen., and Walter J. Knabe and Wm. H. Loeb, Asst. Attys. Gen., for appellee.

GARDNER Justice.

In 1927 (General Acts 1927, p. 506), the Legislature appropriated the sum of $50,000 for the construction and equipment of buildings for the Southern Industrial Institute at Camp Hill, Ala., an educational institution incorporated by special act. General Acts 1900-01, p. 848. The appropriation was made available only upon approval of the Governor, and subject to his judgment as to the condition of the treasury.

Following the approval of the act and on December 3, 1929, the Governor, the petition avers, wrote the president of the Institute (to so designate it for brevity) to the effect that he had every reason to say about $25,000 of this appropriation would be released sometime near the 15th of January. Thereupon the Institute let a contract for the construction of a new administration building; the walls being erected and a temporary roof completed before the enactment of what is known as the Budget and Financial Control Act. General Acts (Ex.Sess.) 1932, p. 35.

During the construction the sum of $10,000 of the appropriation was released by the Governor, and applied on the cost of construction. The Institute, in reliance upon the letter of the Governor, to which reference has been made, advanced from its general funds, which would otherwise have been used in the payment of salaries of its teachers and other general expenses in the education of its pupils, the additional sum of $16,300.

The petition discloses that the remaining sum of the appropriation is needed, and has never been paid, but the Governor has approved the request for $5, with the evident intent of permitting the Institute to test in the courts the validity of the remainder of this appropriation.

The state insists the appropriation was repealed by the Budget Act, cited above, and places reliance upon section 10 of the act, which reads as follows:

"Repeal of Definite, Indefinite and Contingent Permanent Appropriations: All permanent appropriations, definite, indefinite, and contingent in amount, except those provided in the Constitution and those provided in existing statutes in payment of interest on indebtedness arising out of the disposition of lands donated to State institutions by the Federal Congress, heretofore made to any department, institution, bureau, board, commission or other State agency, are hereby repealed as of the close of the fiscal year ending September 30, 1932; Provided that this section shall not become effective until the Legislature enacts current annual appropriations, including per capita appropriations for all eleemosynary and correctional institutions and the Alabama School for Deaf and Blind, for definite amounts that may be expended (after allotments by the Governor as provided for in Section 20) by such departments, institutions, bureaus, boards, commissions and other State agencies for the three remaining fiscal years of the current quadrennium ending on the 30th of September 1933, 1934, and 1935."

The Institute lays stress upon the word "permanent," preceding and qualifying the word appropriations, and argues that this particular appropriation to the Institute was not a permanent appropriation within the meaning of said section 10, and is therefore not repealed. We think there is merit in this contention.

We are acquainted, as a matter of common knowledge, with the history of the Budget Act, the large outstanding floating debt of the state, the insufficiency of funds in the treasury, and appropriations far in excess of the state's revenues. The act was designed to make the state operate within its income. To that end, there was vested in the Governor direct and effective supervision over all of the state's financial affairs. See section 2 of the act, and Abramson v. Hard, 229 Ala. 2, 155 So. 590.

The appropriation here in question is in harmony with that theory, as its release is wholly dependent upon the will of the Governor, who, under the Budget Act, has direct supervision over the state's finances.

The word "permanent" has a well-defined meaning, as follows: "Continuing in the same state or without essential change; durable, fixed, stable: opposed to temporary." The Standard Dictionary and Webster's New International Dictionary (2d Ed., unabridged). The word "continuing," in the above definition, indicates such character of continuing appropriation referred to in 59 Corpus Juris, 257; and the reference in this same section to current annual appropriations adds some...