Jan L. Fox
Deputy Attorney General
Charleston, West Virginia
Counsel for the Appellants
Webster J. Arceneaux, III
Special Assistant Attorney General
Lewis, Ciccarello and Friedberg
Charleston, West Virginia
Counsel for the Appellees
JUSTICE WORKMAN delivered the Opinion of the Court.
1. "It is fundamental to our constitutional law and we affirm
that the Legislature cannot amend general substantive statutes with
budgetary language." Syl. Pt. 13, in part, Dadisman v. Moore, 384
S.E.2d 816 (W. Va. 1988).
2. Dadisman v. Moore, 384 S.E.2d 816 (W. Va. 1988), prevents
the legislature from amending or violating substantive statutes
through the passage of a supplemental appropriations bill.
3. Absent language in the legislation creating special
revenue accounts which expressly permits transfer and redesignation
of funds for purposes other than those expressly provided, West
Virginia Code § 12-2-2(j) (1991) imposes a restriction on the use
of moneys collected and held in special revenue accounts.
4. House Bill No. 4456 (1990) violated West Virginia Code §
12-2-2(j) (1991) by requiring money to be expropriated from special
revenue accounts in breach of the statutory directive that such
moneys shall be expended only for those limited purposes for which
they are authorized to be collected.
The question presented to this Court is whether the Circuit
Court of Kanawha County correctly ruled that House Bill No. 4456
(1990) unconstitutionally transferred monies from three special
revenue accounts for the benefit of the Division of Human Services,
Department of Health and Human Resources ("DHS"). After reviewing
the pertinent statutory and constitutional provisions, we conclude
that the transfer of funds contemplated by House Bill No. 4456 and
sought by appellants, those individuals holding the respective
titles of secretary, department of administration and commissioner,
division of finance and administration, auditor, and treasurer, was
During the 1990 regular legislative session, a supplemental appropriation bill, which was later designated as House Bill No. 4456, was introduced for the purpose of transferring approximately twenty million dollars from approximately sixty special revenue accounts to an account to benefit the DHS. On March 10, 1990, both houses of the legislature passed House Bill No. 4456 and the bill became law. Inclusive within the twenty million dollars designated to be transferred pursuant to House Bill No. 4456 was $450,000 from two Department of Agriculture special revenue accounts and $25,000 from a West Virginia Board of Osteopathy special revenue account. The appellees, the Commissioner of Agriculture and the West Virginia Board of Osteopathy, refused to transfer those monies
designated by House Bill No. 4456 on various constitutional
On June 7, 1990, appellees filed a petition with the Circuit
Court of Kanawha County seeking a rule to show cause why a writ of
mandamus should not be issued to prohibit appellants from
transferring money from the targeted special revenue accounts
pursuant to House Bill No. 4456. The circuit court entered an
order on June 7, 1990, which directed appellants to show cause why
a preemptory writ of mandamus should not be awarded against them.
On July 24, 1990, appellants filed a petition seeking a writ of
mandamus for the purpose of instructing appellees to comply with
the mandate of House Bill No. 4456. Following an evidentiary
hearing which was held on July 24, 1990, and the submission of
post-hearing memoranda from the parties, the circuit court issued
a final order on October 17, 1990, wherein it determined that House
Bill No. 4456 was unconstitutional and therefore denied the writ of
mandamus sought by appellants. Based on this ruling, the circuit
court determined that it was unnecessary to address appellees'
request for a writ of mandamus. This appeal arises from the denial
of the writ of mandamus sought by appellants.
The circuit court found that the legislature violated section
30 of article VI of the West Virginia Constitution through its
enactment of House Bill No. 4456. That section of the state
constitution provides in pertinent part:
No act hereafter passed, shall embrace more
than one object, and that shall be expressed in the
title. But if any object shall be embraced in an
act which is not so expressed, the act shall be
void only as to so much thereof, as shall not be so
expressed, . . . .
The circuit court based its conclusion that House Bill No. 4456 violated article VI, section 30 on incorrect reasoning. It determined that this Court in Dadisman v. Moore, 384 S.E.2d 816 (W. Va. 1988), held that article VI, section 30 prevented the legislature from expropriating funds from the Public Employees Retirement System during the fiscal year. However, that particular ruling in Dadisman was not predicated on article VI, section 30, but rather on our conclusion that the expropriation was in violation of West Virginia Code § 12-3-12 (Supp. 1988) as then in effect.See footnote 1
The objective of article VI, section 30 "is to prevent the concealment of the true purpose of any act from the public and the legislature and to advise the legislators and the public of the contents of the proposed act of the legislature." State ex rel. Davis v. Oakley, 156 W. Va. 154, 157, 191 S.E.2d 610, 612 (1972). House Bill No. 4456 clearly enunciated its purpose as a supplementary appropriations bill. Accordingly, we do not find a violation of article VI, section 30. Moreover, as this Court previously recognized in State ex rel. Key v. Bond, 94 W. Va. 255,
118 S.E. 276 (1923), the requirement that each act shall contain
only one object is inapplicable to appropriation bills which are
controlled instead by the budget amendment, article VI, section 51.
See id. at 273, 118 S.E. at 284.
The importance of Dadisman to the case at bar is its
recognition "that the Legislature cannot amend general substantive
statutes with budgetary language." 384 S.E.2d at 825 and Syl. Pt.
13. The circuit court determined that:
House Bill No. 4456 violated the terms of
substantive statutes through budgetary language in
that supplemental appropriation bill in two
respects: (a) by requiring money to be
expropriated in violation of W. Va. Code § 12-2-2[(j)]  which provides in part that all money
collected in special revenue accounts 'shall be
carried in separate accounts to be used and
expended only for the purposes for which the same
are authorized to be collected by law'; and (b) by
requiring money to be expropriated from numerous
special revenue accounts created by substantive
enactments that state the money is to be expended
only for limited purposes.
Based on Dadisman, the circuit court ruled that the legislature "may not therefore amend or violate substantive statutes by passage of a supplemental appropriation bill such as House Bill No. 4456 which requires money to be spent and expropriated in a manner contrary to that already provided by statute."
Upon further consideration of the term "amend" as it was used in Dadisman, we note that such term does not properly or fully encompass what the legislature was doing in that case and in this case. Rather than seeking an outright or even an indirect
amendment of the requirements of West Virginia Code § 12-2-2(j),
the legislature, in actuality, was simply seeking to accomplish its
goal in violation of that substantive law. We cannot view the
legislature's actions in this case as an attempt to amend the
substantive law of West Virginia Code § 12-2-2(j) because nothing
in House Bill No. 4456 suggests that with respect to future
appropriations from special revenue accounts the provisions of West
Virginia Code § 12-2-2(j) have been annulled. While the effect of
the legislature's action in both Dadisman and the case sub judice
could arguably and creatively be viewed as an amendment, we think
that it should be viewed more properly as a violation of a
substantive statute. In view of this, we accept and affirm the
circuit court's modification of Dadisman as prohibiting the
legislature from amending or violating substantive statutes through
the passage of a supplemental appropriations bill.
The passage of recent legislation demonstrates the proper procedure for expropriating excess funds from special revenue accounts. The following proviso was included in West Virginia Code § 21-11-17(a) (Supp. 1991), which created a special revenue account entitled, the West Virginia Contractor Licensing Board Fund: "Amounts collected which are found from time to time to exceed the funds needed for purposes set forth in this article may be transferred to other accounts or funds and redesignated for other purposes by appropriation of the Legislature." Similar language was included in the bill which was enacted as West Virginia Code §
13-3-5a (Supp. 1991). Absent language in the legislation creating
special revenue accounts which expressly permits transfer and
redesignation of funds for purposes other than those expressly
provided, West Virginia Code § 12-2-2(j) imposes a restriction on
the use of moneys collected and held in special revenue accounts.
Accordingly, we agree with the circuit court's conclusion that
House Bill No. 4456 violated West Virginia Code § 12-2-2(j) by
requiring money to be expropriated from special revenue accounts in
violation of the statutory directive that such moneys shall be
expended only for those limited purposes for which they are
authorized to be collected. We find this violation to be fatal
with respect to that bill.
If the legislature wants to appropriate surplus funds from
special revenue accounts, that body could enact an across-the-board
amendment which would permit appropriation of funds contained in
special revenue accounts when there is a surplus. Barring this
type of all-inclusive amendment, however, the legislature will have
to amend specific statutes creating particular special revenue
accounts to accomplish this same purpose.
The circuit court found further grounds for declaring House Bill No. 4456 unconstitutional by examining a portion of the modern budget amendment which is located in article VI, section 51(c)(7). That section provides, in pertinent part, that: "(b) each supplementary appropriation bill shall provide the revenue
necessary to pay the appropriation thereby made by a tax, direct or
indirect, . . . unless it appears from such budget that there is
sufficient revenue available." The circuit court's order
represents that the parties agreed that House Bill No. 4456 does
not enact tax revenues to fund the appropriation. The only
relevant issue left then for the trial court to determine with
respect to the above-quoted section of the modern budget amendment
was whether "sufficient revenue [was] available."
Assuming, arguendo, that House Bill No. 4456 was not rendered unlawful based on its violation of the terms of West Virginia Code § 12-2-2(j), as discussed above, the existence of a surplus in the applicable special revenue accounts would have constituted the requisite "sufficient revenue." See W. Va. Const. art. VI, § 51(c)(7). The existence of such surplus is contested, and we do not determine whether in fact a surplus existed in the three special revenue accounts at issue here, only that the existence of a surplus would fulfill the constitutional requirement that sufficient revenue be available for all appropriations. We do wish to address, however, the circuit court's rejection of the "historical method analysis" as a means of projecting the existence of surplus in a special revenue account. This method, as its name suggests, involves an examination of past expenses over a specified period of time in conjunction with current revenues, actual and anticipated, to project whether a surplus can be expected with respect to a given fiscal year. The legislature utilized this
method to identify which special revenue accounts could be included
in House Bill No. 4456 based on projected surplus. Because it
refused to recognize the "historical method analysis" as a proper
means of projecting future surplus in the special revenue accounts
designated by House Bill No. 4456, the circuit court determined
that the bill was in violation of article VI, section 51(c)(7) of
the state constitution.
We concur with appellants' reasoning that because the modern
budget amendment does not define or limit in any way the method by
which the existence of a surplus may be determined or, as in this
case projected, the constitutional language at issue meets the
requisite standard of ambiguity which in turn permits a court to
look to custom and usage for construction purposes. See Robertson
v. Hatcher, 148 W. Va. 239, 256, 135 S.E.2d 675, 686 (1964).
Appellants represent that with regard to the past ten years,
surplus revenues have been shifted from special revenue accounts to
other accounts on at least five occasions. Since the legislature
has customarily shifted surplus funds from special revenue accounts
through the use of historical averaging, there would not appear to
be any prohibition against this mechanism for determining the
existence of a surplus when a supplemental appropriation is sought
before the end of the fiscal year.
We establish no guidelines regarding the number of budget years which must be utilized when calculating revenues by use of
this historical averaging method, but do require that a sufficient
period of time be analyzed to comport with the constitutional
requirement of "sufficient revenue." We do suggest, however, that
the legislature may want to consider enacting legislation which
defines or further describes the term surplus and how the existence
of a surplus may be determined. This would eliminate any
constitutional objection on grounds of failure to establish
"sufficient revenue," thereby avoiding unnecessary constitutional
challenges to appropriations such as that at issue. See W. Va.
Const. art. VI, § 51(c)(7). Once an across-the-board amendment to
West Virginia Code § 12-2-2(j) is enacted or the statutes creating
the respective special revenue accounts are amended to provide for
the transfer and redesignation of funds collected and held in those
accounts, then this practice of historical averaging could properly
be used to project surplus funds with respect to those accounts.
This practice could be used immediately with respect to those
special revenue accounts which already expressly provide that
revenues may be transferred and redesignated. See W. Va. Code § §
21-11-17A and 13-3-5a.
We do not address any further grounds of unconstitutionality given the rulings set forth herein. We do state, however, that with regard to any transfers of funds from special revenue accounts other than those at issue in this case that were made pursuant to House Bill No. 4456, no challenge can now be made on the grounds of unconstitutionality because the fiscal year at issue has passed,
and these funds will remain in the accounts to which they may have
Based on the foregoing opinion, the decision of the Circuit
Court of Kanawha County is hereby reversed in part and affirmed in
Footnote: 1West Virginia Code § 12-3-12 was amended in 1989 to provide that "[t]he Legislature may expire or provide for the expiration of any appropriation prior to the end of the fiscal year for which it is made."