
    George C. WALLACE et al. v. John BAKER et al.
    SC 1545.
    Supreme Court of Alabama.
    July 16, 1976.
    Rehearing Denied Aug. 27, 1976.
    William J. Baxley, Atty. Gen., George L. Beck, Deputy Atty. Gen., and Joel E. Dillard, Asst. Atty. Gen., for appellants.
    Truman Hobbs and Robert D. Segall, Montgomery, for appellees.
   MADDOX, Justice.

Can the Governor, by executive order, appropriate public funds for education when the Legislature adjourns without passing an appropriation bill? We hold that he cannot, and affirm the trial court.

Section 43 of our State Constitution prohibits the Executive branch from exercising either legislative or judicial powers. Section 72 of our Constitution specifically prohibits the payment out of the treasury of money “except upon appropriations made by law.” Amendment 111, which states that it is the policy of the State “to foster and promote the education of its citizens,” does not grant additional powers to the Executive. The power to appropriate is still legislative.

Admittedly, the Legislature’s inaction created an emergency, but under the facts of this case, the proper constitutional course for the Governor was for him to call a special session, which he did. The Legislature passed an appropriation bill for education, thereby alleviating the problem.

We affirm the judgment of the trial court enjoining the enforcement of the executive order.

AFFIRMED.

HEFLIN, C. J., and JONES, SHORES and BEATTY, JJ., concur.  