Kelly v. Marylanders for Sports Sanity, Inc.

⁴³⁹ MURPHY, Chief Judge. Article XVI of the Constitution of Maryland, entitled “The Referendum,” in § 1(a), reserves to the people the power “to have submitted to the registered voters of the State, to approve or reject at the polls, any Act, or part of any Act of the General Assembly____” Section 2 of Art. XVI limits the right of referendum, in pertinent part, as follows: “No law making any appropriation for maintaining the State Government, or for maintaining or aiding any public institution, not exceeding the next previous appropriation for the same purpose, shall be subject to rejection or repeal under this Section.” The primary issue in this case is whether enactments of the General Assembly in 1987 involving the Maryland Stadium Authority constitute laws “making any appropriation for maintaining the State Government.” I. The Maryland Stadium Authority was created by ch. 283 of the Acts of 1986, codified as Maryland Code (1986 Repl.Vol.), §§ 13-701 to -722 of the Financial Institutions Article. By this legislation, the Authority was designated as a public corporation and instrumentality of the State. For budgetary purposes, it was included as a unit of the Department of Economic and Community Development. § 13-702.

The five members of the Authority, appointed by the Governor with the advice and consent of the Senate, § 13-703, were empowered to determine the location of, and construct and maintain “facilities to the extent necessary to accomplish [its] purposes.” § 13-708(6). Under § 13-701, a “facility” includes, in addition to the site, “stadiums for the primary purpose of holding professional football games, major league professional baseball games, or both, in the Baltimore metropolitan area.” The Authority was vested with broad power to regulate the use and operation of its facilities and to charge fees ⁴⁴⁰ therefor. § 13-708(9) and (10). Subject to the approval of the Board of Public Works, the Authority was authorized to borrow money from any source for any corporate purpose and to mortgage or otherwise encumber its property. § 13-708(11). Subject to the same approval, the Authority was permitted to issue bonds in connection with its acquisition and construction of facilities, the debt service on the bonds to be payable solely from the Authority’s revenues. § 13-708(12); § 13-712.

The Authority was empowered, by gift or purchase, to acquire any property needed “to construct or operate any facility.” § 13-711(a). Prior to selecting a facility site, it was required to hold a hearing for the purpose of obtaining public comment. § 13-709. It was also required, before acquiring a facility site, or before entering into a construction contract involving a facility, to submit a detailed written report to the General Assembly and Board of Public Works justifying its proposed action, including the method of funding and the economic necessity for the facility. § 13-710. Notification to the Legislative Policy Committee thirty days prior to acquiring a facility site was also required by this section.

In addition, the Authority was directed to obtain prior approval both of the Board of Public Works and the General Assembly “for the acquisition of the site for the stadium” and to obtain the approval of the Board of Public Works before contracting for the acquisition of the facility site. § 13-710. Section 13-715 created a Maryland Stadium Authority Financing Fund “as a nonlapsing revolving fund” to be used by the Authority “for carrying out the provisions of this subtitle.” The Authority was required by this section to place receipts in the Financing Fund from the sale of its bonds and from other revenues generated from other sources. Consistent with its statutory purpose, the Authority engaged consultants to consider various sites for its contemplated sports facilities. After studying the consultants’ report, the Authority recommended an 85-acre tract in Baltimore City, known as Camden Yards, as the most ⁴⁴¹ appropriate site.

It concluded that the Camden Yards site could be acquired for 72.3 million dollars; that a baseball stadium could be erected on the site for 61.8 million dollars, and a football stadium for 67 million dollars—a total cost of 201.1 million dollars in January 1987 dollars. On December 5, 1986, the Authority gave the requisite statutory notice of its intention to recommend the Camden Yards site for the location and construction of the sports facilities. Three bills were thereafter introduced in the 1987 session of the General Assembly as administration measures. The first, S.B. 228, which upon its enactment became ch. 122 of the Acts of 1987, was entitled “Maryland Stadium Authority—Approval of Facility Site at Camden Yards.” This bill amended § 13-709 of the Financial Institutions Article by authorizing the Authority to construct or enter into a contract for a facility on the Camden Yards site.

The second bill, S.B. 230, which upon its enactment became ch. 123 of the Acts of 1987, was entitled “Maryland Stadium Authority—Powers and Duties.” This bill also amended a number of sections relating to the Maryland Stadium Authority in the Financial Institutions Article. Specifically, the Authority was designated as an independent unit in the Executive Branch of State Government. § 13-702(e). It was authorized to acquire property in the Camden Yards site by ordinary or quick-take condemnation. The bill also amended § 13-715(c) by adding a new subparagraph (5) which specified that, in addition to other receipts of the Authority required to be deposited in its Financing Fund, “additional revenue, gift, donation, or other source [of funds] authorized by law” must also be so deposited in connection with the financing of the site acquisition and construction of the sports facilities.

The Authority was required by § 13-719(5) to submit “annually a budget reflecting the operating and capital program of the Authority to the Department of Budget and Fiscal Planning for inclusion for informational purposes in the State Budget Book.” ⁴⁴² The effectiveness of the bill was made contingent upon the enactment of ch. 122. The third bill, S.B. 847, which upon its enactment became ch. 124 of the Acts of 1987, was entitled “Maryland Stadium Authority—Financing.” It amended a number of sections in the Financial Institutions Article, in the State Finance and Procurement Article, and in the State Government Article of the Code. By its preamble, this bill recited the intention of the General Assembly that, to the maximum extent economically justifiable, the Authority “finance the construction of the facility with private, rather than public, investment”; and that the Authority solicit and evaluate proposals from private investors for financing such structures, thereby “to minimize the use of State lottery and other revenues and the risk to the State’s revenue base and credit ratings.” The bill provided in amended § 13-712(a)(l)(II) of the Financial Institutions Article that, absent additional approvals, the Authority’s power to issue bonds for the purpose of financing site acquisition and construction of the sports facility was limited to: (1) 85 million dollars for site acquisition at Camden Yards; (2) 70 million dollars for construction of a baseball stadium; (3) 80 million dollars for construction of a football stadium, and (4) 195 million dollars for construction of a multi-use stadium. New § 13-712.1(1) of the Financial Institutions Article requires that prior to sale of its bonds to finance any segment of the facility, the Authority must make a certification and report to the Legislative Policy Committee and Board of Public Works that it “endeavored to maximize private investment in the facility proposed to be financed and to maximize the State’s ability to assure that the professional baseball and football franchises will remain permanently in Maryland.” Section 13-712.1(2) requires the Authority to provide to the fiscal committees of the General Assembly, prior to seeking approval for each bond issue, “a comprehensive financing plan for the relevant segment of the facility and the effect of this financing plan on financing options for other segments ⁴⁴³ of the facility, including anticipated revenues from private investment where applicable.” This section, in subparagraph (3), also requires the approval of the Board of Public Works of the proposed bond issue and financing plan.

Subparagraph (4) of this section conditions the issuance of the bonds upon securing: (1) in connection with site acquisition and construction of a baseball stadium, a long-term lease for a major league professional team and (2) in connection with site acquisition and construction of a football stadium, a franchise for a National Football League team and a long-term lease. The bill provided in amended § 13-711(b)(2) and (3) that subject to the prior approval of the Board of Public Works, “the State may lease or sublease any facility from or to the Authority, whether or not constructed or useable”; and that lease payments to the Authority appropriated by the Legislature “shall be transferred to the Maryland Stadium Authority Financing Fund.” Section 13-714.1 of the Financial Institutions Article requires Baltimore City to pay one million dollars annually into the Authority’s Financing Fund “for the purposes of debt service and other forms of obligation by the Authority.” The bill also added new § 7-312 to the State Finance and Procurement Article for the purpose of creating a “Maryland Stadium Facilities Fund”—a “special, nonlapsing fund,” to be “separately” held by the State Treasurer. It consisted of “moneys that may be appropriated, transferred, credited, or paid to it from any source.” The section directs that the unspent balance of this Fund not revert to the General Fund of the State at the end of the fiscal year. Under § 7-312(E), receipts in the Facilities Fund are authorized to be used with certain approvals (1) to pay rent to the Maryland Stadium Authority and (2) to make grants or loans up to one million dollars to the Authority in any fiscal year and (3) to finance capital construction in lieu of issuing bonds.

Also included in the bill was new § 7-312(F) of the State Finance and Procurement Article; it requires, at the end of ⁴⁴⁴ the fiscal year, a transfer to the Dedicated Purpose Account of the State Reserve Fund of balances in the Facilities Fund in excess of 24 million dollars, plus the Debt Service Reserve Fund held for payment of debt service on the Authority’s bonds. Revenues so transferred to the State Reserve Fund “are dedicated for use by the Maryland Stadium Authority and may be transferred from the State Reserve Fund by an appropriation in the Budget Bill or, with the approval of the Legislative Policy Committee by budget amendment.” 1 Finally, the bill added new provisions to the State Government Article requiring (1) that the State Lottery Agency conduct each fiscal year at least two, but not more than four, sports lotteries for the Authority’s benefit, § 9-120.1, and (2) that the Comptroller pay into the Stadium Facilities Fund the net proceeds of these sports lotteries. § 9-120(b)(l)(I). As shown by the Senate and House Journals, the three Maryland Stadium Authority bills were favorably reported, with amendments, by the fiscal committees of the General Assembly. An extensive report entitled “The Stadium Issue,” prepared by the Legislature’s Department of Fiscal Services, was available during consideration of the bills by the fiscal committees and ultimately by the entire membership of the General Assembly.

Much of its content was included in the “Floor Report” of the Senate Budget and Taxation Committee relating to the financing of the sports ⁴⁴⁵ facilities proposed by S.B. 847 (ch. 124). This report gave an overview of the bill’s salient provisions, highlighting the fact that the bill permitted the Authority to issue 206 million dollars in mainly tax-exempt, 30-year lease backed revenue bonds. The report noted that the bill created three new revenue sources—the sports lotteries, estimated to produce 16.4 million dollars annually; 2 the one million dollar grant from Baltimore City; and operating revenues of the Authority estimated at 5.3 million dollars yearly—a total amount greater than the annual estimated debt service on the bonds of approximately 17 million dollars. The committee report indicated that these new revenue sources would permit the Legislature in the Budget Bill to appropriate annually, in the form of lease payments, the funds necessary to cover the debt service on the bonds.

As otherwise stated in the report, site acquisition and construction costs for the sports facilities would be funded by 30-year Authority revenue bonds, with debt service financed by annual lease payments to the Authority from funds appropriated each year by the Legislature, and with the sports lotteries constituting the main source of revenues for the lease payment appropriations. See “The Stadium Issue,” at 15. 3 The economic benefit to the State of the new facilities was outlined in the committee report as follows: for the new baseball stadium, 132 million dollars annually in 1990 ⁴⁴⁶ dollars; and 59.8 million dollars for the football stadium if an NFL franchise was obtained. The economic impact upon the City was estimated at 9.6 million dollars in new local taxes during the construction phases and 1.6 million annually generated by the sports facilities. The three bills were enacted by the General Assembly and signed into law by the Governor on April 30, 1987 as chs. 122, 123, and 124 of the Acts of 1987; they took effect on June 1, 1987.

Because of the anticipated enactment of the bills, a General Fund appropriation included in the proposed annual Budget Bill for the Authority in the total amount of $521,-632 was stricken by the Legislature. See the Budget Bill, ch. 121 of the Acts of 1987, Item 37.01.24.14, at 153 and 225. The Report of the Chairmen of the House Appropriations Committee and Senate Budget and Taxation Committee, 1987 session, at 204, explains the reason for this action: “Delete general funds for agency in anticipation of special funds becoming available as part of a stadium financing plan. Gap financing should be provided through the General Emergency Fund if necessary.” 4 II.

Opponents of the Stadium Authority enactments undertook to petition chs. 122 and 124 to referendum under Art. XVI of the Maryland Constitution. Acting through Marylanders for Sports Sanity (MASS), referendum petitions were presented to the Secretary of State on May 27 and 28, ⁴⁴⁷ 1987. The Secretary refused to accept them in view of an opinion of the Attorney General of Maryland that neither Act was referable. See 72 Op.

Att’y Gen. (1987). MASS thereafter promptly filed suit in the Circuit Court for Anne Arundel County, seeking a writ of mandamus to compel the Secretary to accept the petitions and forward them to the State Administrative Board of Election Laws, as required by law. After the court granted a motion to intervene by the Greater Baltimore Committee (GBC), both the Secretary and GBC filed motions for summary judgment.

They took the position that ch. 124 was a law making an “appropriation for maintaining the State Government” within the contemplation of the Referendum Amendment of the Maryland Constitution and thus was not referable. This was so, they contended, because ch. 124 mandates the raising of revenues to provide the financing for the continued operation of the Stadium Authority and for its site acquisition and construction of sports facilities at Camden Yards. Thus, they argued, ch. 124 was itself an “appropriation” within the meaning of the Referendum Amendment because it earmarked and dedicated monies for a particular purpose, even though ch. 124 did not directly authorize the disbursement of any budgeted funds. Moreover, they maintained that ch. 124 was enacted for the purpose of maintaining State government because the Authority could not otherwise perform its statutory duties of promoting the recreation of the public, a traditional and long-standing governmental function.

And they also urged that the stadium “package” of bills, chs. 122, 123, and 124, must be read as a single legislative enactment. Because ch. 122—the so-called Site Act for the new proposed facility in Camden Yards—was legally inseparable from the financing mechanisms contained in ch. 124, the Secretary and GBC contended that the two bills must be considered as one for purposes of interpretation, construction, and legal effectiveness. They contended that because the two Acts were interdependent and treated a single subject, and because ch. 124 was a law making an “appropriation for maintaining the ⁴⁴⁸ State Government,” neither ch. 122 nor ch. 124 was capable of referendum. The contrary position taken by MASS in opposition to the summary judgment motions was adopted, for the most part, by the circuit court.

In an opinion by Judge Raymond G. Thieme, Jr., it was first noted that there was no appropriation for the Authority contained in the Budget Bill. He observed that while ch. 124 created a comprehensive financing scheme to raise funds to acquire and construct sports facilities at the Camden Yards site, it did not itself disburse any funds. To come within the exception to the Referendum Amendment, the court said that the law must authorize a disbursement in a specific amount for the purpose of maintaining State government. After reviewing the provisions of Art. Ill, § 52 of the Maryland Constitution (the Budget Amendment), Judge Thieme concluded that the General Assembly could appropriate money out of the State Treasury only by the Budget Bill or by a Supplementary Appropriation Bill.

Because ch. 124 concededly was not a supplementary appropriation bill, as it made no provision for a tax to raise the revenue, the court found that this enactment did not constitute an “appropriation” within the meaning of the Referendum Amendment. Judge Thieme said, after reviewing our cases, that “an appropriation includes both a revenue producing measure and a revenue disbursing measure ... [and that] the elements may be embodied in one act or in separate acts, one of which being a Budget Bill, and construed as one Act.” The authority to issue and sell revenue bonds was not, he said, an “appropriation” and, in any event, was discretionary in ch. 124, not mandatory, and was subject to a number of preconditions. Moreover, Judge Thieme held that there was no provision in ch. 124 mandating that a sum certain be generated by the revenue bonds and disbursed to the Authority for the acquisition and construction of the facilities. As a consequence, he said that “[t]here is no withdrawal from the State Treasury of a certain sum of money for the purpose ⁴⁴⁹ of constructing the stadia through the revenue bond provisions.” Further in the opinion, Judge Thieme noted that the proposed lease payments for the Authority’s facilities, the amount of which was not specified in ch. 124, were to be made by the State only on a permissive and contingent basis from future budget bills.

He said that because the proceeds of the sports lottery, the Baltimore City contribution, and stadium revenues and grants had not been collected, any appropriation of State funds in ch. 124 was “illusory.” He characterized ch. 124 as, at most, “a revenue raising measure of indefinite sums,” and not an appropriation act. Nor is it, he held, “in pari materia with the Budget Bill (Fiscal Year 1988), as the Budget Bill contains no appropriation of funds for the Authority or for the acquisition and construction of sports stadia.” Judge Thieme furthermore concluded that Art. XYI “should be liberally construed in favor of the people” and that “limitations on the power of the referendum should be narrowly construed to ensure that the power is not subverted.” In any event, the court repeated, ch. 124 was not a law for the purpose of maintaining State government within the Referendum Amendment. While finding that construction of stadiums for recreational purposes could constitute a primary function of State government, Judge Thieme further found that because ch. 124, by its preamble, required that private investment be maximized, and because lease backed financing was used rather than general obligation bonds pledging the full faith and credit of the State to payment of the Authority’s bonds, the General Assembly intended that the stadium construction be undertaken primarily by private investment. And, finally, he held that ch. 122 did not constitute an appropriation for maintaining the State government, since it neither raised revenue nor appropriated funds, but simply authorized the Authority to acquire the Camden Yards site for the sports facilities.

Having determined that chs. 122 and 124 could be petitioned to referendum, the court held that MASS had a clear ⁴⁵⁰ legal right to have the petitions accepted by the Secretary of State and forwarded to the State Administrative Board of Election Laws. The court, therefore, granted MASS’ request for a writ of mandamus and denied the Secretary’s and GBC’s motions for summary judgment. This appeal followed. 5 III. The precise issues in this case are (1) whether ch. 124 is a law making an “appropriation” within the meaning of the Referendum Amendment; (2) if it is such a law, whether the “appropriation” made by ch. 124 is for “maintaining the State Government” within the contemplation of Art. XVI and thus exempt from the referendum, and (3) whether ch. 122, which concededly makes no appropriation, is nevertheless part of an interdependent and legally inseparable package of legislation with chs. 123 and 124 and thus is nonreferable under Article XVI.

(A) The Referendum Amendment to the Maryland Constitution was proposed by ch. 673 of the Acts of 1914 and was ratified on November 2, 1915. It was “the brainchild of Populist and Progressive Movements which dominated national politics in the late nineteenth and early twentieth centuries” and was enacted in response “to the public outcry over corruption in state government and alleged abuses of legislative power.” Ritchmount Partnership v. Board, 283 Md. 48, 60 , n. 9 and 10, 388 A.2d 523 (1978). 6 Shortly after the Amendment’s enactment, we said that its ⁴⁵¹ meaning and limitations must be determined “in the light of its origin, the purpose it was intended to serve, as well as the evils it was intended or supposed to remedy.” Beall v. State, 131 Md. 669, 676 , 103 A.2d 99 (1917). In this connection, we there noted that since the establishment of Maryland’s first Constitution in 1776, our people “had lived under a well recognized form of representative self-government ... [which was] for many years looked upon as one of the great principles of popular government, and as necessary and indispensable for the preservation of civil order and popular liberty.” Id. at 677, 103 A.2d 99 . We observed, however, that after the close of the Civil War, and in particular between the years 1880 and 1900, “great abuses began to creep into legislation and into the administration of the National and State governments.” Id.

These abuses were said “to have grown out of the control by corrupt methods of legislation and administration by great corporations and a group of individuals in each State who had taken into their hands the machinery of each of the great political parties.” Id. As a result, “it was charged that the government, in all its departments, was prostituted to corrupt and selfish purposes.” Id. The Referendum Amendment was thus “designed as a modification of, or as a supplement to the principle of representation ... [to] prevent the reoccurrence of many of [these] abuses.” Id. at 678, 103 A.2d 99 . 7 Therefore, upon the timely filing of a valid referendum ⁴⁵² petition, the referred statute (other than an emergency measure) “shall not become a law or take effect until thirty days after its approval” by majority vote at the next ensuing statewide general election. At the time of the Referendum proposal in 1914 and its adoption in 1915, bills for the expenditure of public monies for the State’s governmental purposes were initiated solely by the Legislature.

Then, as now, Art. Ill, § 32 of the Maryland Constitution prohibited the withdrawal of any money “from the Treasury of the State ... except in accordance with an appropriation by Law.” 8 And § 34 of Article III of the Constitution then provided (as now) that no “debt” could be contracted by the General Assembly for purposes of financing governmental projects “unless such debt shall be authorized by a law providing for the collection of an annual tax or taxes sufficient to pay the interest on such debt as it falls due, and also to discharge the principal thereof within fifteen years from the time of contracting the same____” The Budget Amendment to the Maryland Constitution, Art. Ill, § 52, which introduced a comprehensive executive budget system in this State, and required that “[e]very appropriation bill shall be either a Budget Bill, or a Supplementary Appropriation Bill,” was not in effect at the time of the Referendum’s adoption. Consequently, we look to the history of legislatively authorized expenditures, prior to the adoption of the Budget Amendment, to ascertain the intended reach of the limitation in Art. XYI excepting from its provisions a law making an “appropriation for maintaining the State Government.” ⁴⁵³ Maryland had no orderly system of planned public expenditures in the years before the Budget Amendment. See C. Everstine, The General Assembly of Maryland, 1850-1920, at 571 (1984). During that period, appropriations for various purposes were made piecemeal by a series of bills enacted by the General Assembly, each project receiving independent consideration without relation to other claims upon the public purse.

McKeldin v. Steedman, 203 Md. 89, 96 , 98 A.2d 561 (1953). As a result of these uncoordinated multiple appropriations, many for State-aided charitable institutions, deficits in the State Treasury were not unusual; the problem was exacerbated by the Legislature’s practice of making “continuing appropriations,” i.e., those for specific purposes which would go on indefinitely without further legislation. See Md. Act. for Foster Child. v. State, 279 Md. 133 , 367 A.2d 491 (1977); Panitz v. Comptroller, 247 Md. 501 , 232 A.2d 891 (1967); Baltimore v. O’Conor, 147 Md. 639 , 128 A. 759 (1925). As the power to expend public monies was vested solely in the Legislature, it was free to ignore the Governor’s recommendations in making public expenditures.

Numerous spending bills were enacted by the Legislature, with individual members representing districts, seeking funds for particular purposes on behalf of their constituencies. No effective provision then existed in the State’s system of financing the government for the presentation to the Legislature of a complete picture of the financial condition and needs of the government. And, it was said, the stream of appropriation bills was withheld until the last few days of the legislative session when deliberate scrutiny of their provisions was not possible; indeed, they were frequently decided upon in the privacy of committee rooms, and were the product of “logrolling” between members of the legislature, senatorial or delegate courtesy as to the passage of such bills being prevalent among the legislators. These accounts of the ⁴⁵⁴ dismal fiscal practices of the General Assembly prior to the Budget Amendment are well documented. 9 The Referendum Amendment, with its exemption of laws making appropriations for maintaining the State government, thus bears examination in light of this historical background.

Whether the General Assembly, in proposing the exceptions to the people’s right to Referendum, was undertaking to insulate its interest in spending public monies, or had some higher purpose in mind cannot be gleaned from the literature on the subject. In substance, however, it seems clear that the Referendum Amendment excluded from its coverage all those bills, with or without revenue-raising provisions, which authorized the expenditure of public money to maintain the State government, and other such bills which, appropriated sums “for maintaining or aiding any public institution” not exceeding “the next previous appropriation for the same purpose.” 10 The Budget Amendment, ratified in 1916, corrected many of the fiscal deficiencies which existed at that time by providing for a comprehensive executive budget system for the State. This system required that the Governor present a complete and balanced plan of proposed appropriations and estimated revenues for the fiscal year to the Legislature in the form of a Budget Bill. The provisions of the Budget Amendment and its history have been reviewed in great detail in a number of our cases and require no ⁴⁵⁵ repetition here.

See, e.g., Md. Act. for Foster Child. v. State, supra; McKeldin v. Steedman, supra; Dorsey v. Petrott, 178 Md. 230 , 13 A.2d 630 (1940); Baltimore v. O’ Conor, supra. Especially to be noted, however, is that the Budget Amendment specified in § 52(1) and (2) that the General Assembly “shall not appropriate any money out of the Treasury” except by either “a Budget Bill or a Supplementary Appropriation Bill.” The latter, as defined in paragraph (8) of § 52, was a legislatively initiated appropriation measure “embodied in a separate bill limited to some single work, object or purpose therein stated” and required to “provide the revenue necessary to pay the appropriation thereby made by a tax, direct, or indirect, to be levied and collected as shall be directed in said bill.” Without question, within the meaning of the Referendum Amendment, an “appropriation for maintaining the State Government” may be included within a Budget Bill or supplementary appropriation bill. See Bayne v. Secretary of State, 283 Md. 560 , 392 A.2d 67 (1978); Winebrenner v. Salmon, 155 Md. 563 , 142 A. 723 (1928). Since ch. 124 is neither a Budget Bill nor a supplementary appropriation bill under the Budget Amendment, we consider whether it is nevertheless a bill within that class of money bills or spending measures contemplated by the exceptions to the referendum right under Art. XVI.

In a 1927 opinion, then Attorney General Robinson considered whether a statute which increased the gas tax and dedicated the proceeds for highway construction and maintenance was a law making an appropriation “for maintaining the State Government” and thus was not referable under Art. XVI. 12 Op. Att’y Gen. 228. In determining for referendum purposes “what constitutes a law making an appropriation,” the Attorney General took cognizance of the “radical change” effected by the Budget Amendment to the Maryland Constitution. Id. at 233.

He noted that under the Budget Amendment, unlike the situation prior to its adoption, all disbursements of State revenues are made by ⁴⁵⁶ either a budget bill or by supplementary appropriation bills. Id. at 234. After discussing the intricacies of the Budget Amendment, the Attorney General stated that “[w]ithin the meaning of Art. XVI at the time of its adoption, [the statute sought to be referred] is unquestionably an appropriation measure,” as it imposed a tax from which the revenue required for road construction was to be derived. Id. at 234.

But, he said, “the word ‘appropriation’ is not used in the same sense in the budget amendment and in Article XVI.” Id. at 235. As to the exception in the Referendum Amendment, the word “appropriation ... signifies the act of setting apart or assigning to a particular use or person in exclusion of all other, that is to say, the application to a special use or purpose”; whereas in the Budget Amendment the word “appropriation” denotes “disbursement ... of appropriated monies from the State Treasury.” Id. at 235. Attorney General Robinson said: “The Budget amendment prescribes the method whereby appropriated funds may be withdrawn from the State Treasury. Article XVI refers to all laws assigning public monies to a particular use or purpose, regardless of whether such law is adequate or legally sufficient to authorize the payment or disbursement of the appropriated monies.” Id.

Thus, whether the statute sought to be referred “is regarded as separate and distinct from the budget bill or is considered in connection therewith, it must be held to be a law making an appropriation, within the meaning of Article XVI.” Id. Finding that the appropriation was one for maintaining the State government, the opinion indicated that the framers of Art. XVI “had in mind that if laws making appropriations for maintaining the State government were subject to referendum, it would be possible, through the exercise of this power by the people, to cause the State serious financial embarrassment in the performance of its various essential functions.” Id. at 235-36. The opinion concluded that ⁴⁵⁷ “the broad language of the exception was intended to include all laws providing revenue for and/or appropriating monies to any organized department of the State ... [for] the exercise of State functions.” Id. at 236. Notwithstanding the Attorney General’s opinion as to the nonreferability of the statute, the matter was ultimately challenged in Winebrenner v. Salmon, 155 Md. 563 , 142 A. 723 (1928).

We there said that the statute, although technically not valid as a supplementary appropriation bill because it was enacted prior to the Budget Bill, nevertheless constituted an “appropriation” under Art. XVI for maintaining the State government, which could not be referred to Referendum. In so holding, we noted that even though the statute might not for that reason be “sufficient in itself to authorize the withdrawal [of money] from the treasury of the State ... it was at least a direction to the Governor to make the disbursement in the budget to be prepared by him.” Id. at 567 , 142 A. 723 . We concluded that the statute and the Budget Bill were in pari materia and must be construed together as though they constituted one act. Id. at 567 , 142 A. 723 .

Dorsey v. Petrott, 178 Md. 230 , 13 A.2d 630 (1940) involved the referability of a statute dealing with the conservation of fisheries in tidewater, Maryland, said by the Court to be an imperative function of government. The issue was whether the statute constituted a law making an appropriation within the meaning of the Referendum Amendment “when construed in connection with other related provisions of the Constitution.” 178 Md. at 235 , 13 A.2d 630 . We there said that “a law making an appropriation,” in legislative and constitutional history, “has had a definite significance.” Id. at 236 , 13 A.2d 630 . Reviewing the Maryland Constitution of 1776, we observed that only the House of Delegates was empowered “to originate money bills.” Id.

As to the meaning of a “money bill,” the Court said it “embraces bills providing for the raising of public revenue and for the making of grants or appropriations of public money in the Treasury.” Id. As to subsequent Maryland ⁴⁵⁸ Constitutions, which involved “money bills” originating in either chamber of the General Assembly, we referred to McPherson v. Leonard, 29 Md. 377 (1968). In that case, we stated that the constitutional requirement of Art. Ill, § 32 that no money be drawn from the Treasury except by an appropriation by law was satisfied by a statute that directed that the warrant of the Comptroller be paid from “any money thereafter in the treasury not otherwise appropriated.” Id. 178 Md. at 238 , 13 A.2d 630 . This, we said, was “certainly an appropriation, and a fund is dedicated to its payment.” Id. at 238-39 , 13 A.2d 630 .

Next discussed in the opinion were appropriations “by constitutional mandate” (citing the School Fund under § 3 of Art. VIII of the Maryland Constitution and the payment of debt service on State debts contracted under § 34 of Art. Ill of the Constitution). As to these, we found it “evident that the Referendum Amendment did not mean to include within the purview of its operation a statute to raise revenues for these specific purposes by a levy of taxes or by the imposition of other fiscal measures. The act for these purposes and the moneys so procured are, therefore, an act and a fund for the maintenance of the State Government; and, so, the act is excepted from the Referendum Amendment.” Id. at 240, 13 A.2d 640 . Continuing, the Court said that no basis existed “for the construction that a law imposing or providing for a tax levy or other means of raising revenue for the maintenance of the state government is a law referable to the electorate ... [within] the terms of the Referendum Amendment.” Id.

The Court next said that “[t]he determinative characteristics of an appropriation for maintaining the State Government at the time of the adoption of the Referendum Amendment in 1915 were not fundamentally affected by the Budget Amendment.” Id. at 241, 13 A.2d 640 . Following an extended recitation of the provisions of the Budget Amendment, we recognized that “the budget bill itself does not provide the means for the raising of the revenue requisite for the payment of the appropriations ⁴⁵⁹ made ... [but] is to be implemented by the passage of such money bills or revenue measures as shall produce and supply the moneys necessary for the Treasury to meet the appropriations made by the budget bills.” Id. at 243, 13 A.2d 640 . It follows, we said, “that revenue measures to raise the public funds to pay the appropriations of the Budget Bill are excepted from the operation of the Referendum Amendment, although the revenue thus procured is disbursed by the Treasury through the provisions of the budget without any express authorization in the money bill for its disbursement.” Id. at 244, 13 A.2d 640 . The Court then concluded that “an appropriation of public funds is made by a constitutional mandate or a lawful legislative act whose primary object is to authorize the withdrawal from the state treasury of a certain sum of money for a specified public object or purpose to which such sum is to be applied.” Id. at 245, 13 A.2d 640 .

We found, however, that the statute involved in the case was only a general law and not an appropriation measure. We cautioned that such a law could not “be converted into an appropriation bill merely because there may be an incidental provision for an appropriation of public funds.” Id. at 251, 13 A.2d 640 . Dorsey v. Petrott in large part echoes the conclusions reached thirteen years earlier by Attorney General Robinson in his 1927 opinion. Thus, whether the provisions of ch. 124 are effective to make an “appropriation” to the Authority in the context of the Budget Amendment’s provisions is not here in issue.

For, as Dorsey makes clear, when considering the meaning of an “appropriation” for purposes of the Referendum Amendment, nothing in that Amendment was “fundamentally affected” by the later enactment of the Budget Amendment. 178 Md. at 241 , 13 A.2d 640 . To the same effect, see Bayne v. Secretary of State, 283 Md. 560 , 392 A.2d 67 (1978). As earlier indicated, ch. 124 authorizes a State instrumentality, the Maryland Stadium Authority, to borrow funds through the issuance of its bonds, the proceeds to be deposited in its Financing Fund, a special revolving fund ⁴⁶⁰ account not within the State Treasury. 11 The Authority is authorized by ch. 124 to forthwith expend these dedicated funds for site acquisition and Stadium construction. Chapter 124 also directs the deposit of other funds in the Authority’s Financing Fund, including monies received to meet the debt service requirements on the Authority’s bonds from (1) annual appropriations directed to be included in the Budget Bill in the form of lease payments to the Authority from the State; (2) funds directed to be paid by the City of Baltimore in the amount of one million dollars annually, and (3) the Authority’s operating revenues.

The creation of a Stadium Facilities Fund within the State Treasury is also mandated by ch. 124, this being the depository for the net proceeds realized from the sports lotteries (these monies being the revenue source enabling the State to make its annual appropriation to the Authority’s Financing Fund for debt service purposes). If and when the amount of money in the Stadium Facilities Fund exceeds 24 million dollars, plus the debt service reserve fund, ch. 124 directs that the excess shall be transferred to a dedicated reserve fund and held for the Authority’s credit in furtherance of its corporate purposes. Chapter 124 is, therefore, a finely tuned law containing an intricate financing mechanism to permit the State to receive and expend public monies required to obtain a site and to construct the contemplated sports facilities in the public interest. Specifically, it authorizes the borrowing of funds through the issuance of bonds, the disbursement of those funds through the Authority’s Financing Fund, and the payment of the Authority’s bonded indebtedness ⁴⁶¹ through monies directed to be paid by the State to the Authority through annual appropriations in the Budget Bill, by the City of Baltimore, and through the Authority’s own revenues included in its Financing Fund.

Simply because no funds were appropriated to the Authority through the Budget Bill which was enacted in the same year as ch. 124 does not convert ch. 124 into other than ’a law making an “appropriation” within the broader meaning of that term as contemplated by the Referendum Amendment. In other words, ch. 124 is a type of revenue raising and spending measure intended to be embraced within the exclusionary provisions contained in the Referendum Amendment. In so concluding, we have considered whether, as held by Judge Thieme, the people’s right to referendum under Art. XVI should be broadly construed and, conversely, the exception to that right narrowly construed. The contrary argument is made by the Secretary and GBC, upon authorities presented, that it is the exception, rather than the right, which in light of its purpose should be broadly interpreted.

Neither of these arguments is, of course, controlling of the ultimate construction of the meaning of the Referendum Amendment’s excepted provisions. Our interpretation, as herein expressed, is in accord with the obvious purpose of the exception to insulate revenue raising and spending measures from suspension under Art. XVI’s provisions. 12 (B) The Secretary and GBC argue that the appropriation of funds under ch. 124, within the contemplation of the Referendum Amendment, was for the purpose of “maintaining ⁴⁶² the State Government” and consequently the trial court erred in reaching a contrary conclusion. It is well settled in Maryland that government, state or local, acts pursuant to a valid public purpose when it provides parks or sports facilities, including stadiums, for public recreational activities. See Reyes v. Prince George’s County, 281 Md. 279 , 381 A.2d 12 (1977) (sports arena); Pressman v. D’Alesandro, 193 Md. 672 , 69 A.2d 453 (1949) (Baltimore Stadium); Green v. Garrett, 192 Md. 52 , 63 A.2d 326 (1949) (a valid public purpose exists in permitting use of Baltimore Stadium for professional baseball). 13 Other jurisdictions are well in accord. 14 Indeed, the State’s authorization for the financial support of stadium facilities for professional sports in furtherance of public recreational activities is of long standing. 15 In addition to Maryland’s financial support for the Baltimore’s Memorial Stadium and public ownership of the Cleveland and New Jersey Meadow-lands stadiums, the Pittsburg Stadium Authority owns ⁴⁶³ Three Rivers Stadium; the Metropolitan Council Sports Facilities Commission owns the Metrodome; the Louisiana Stadium & Exposition District owns the Louisiana Super-dome; the Tampa Sports Authority owns Tampa Stadium; the City of Irving owns Texas Stadium; the Pontiac Stadium Authority owns Pontiac Silverdome; the Jackson County (Mo.) Sports Complex Authority owns both Royals Stadium and Arrowhead Stadium; the City of Philadelphia owns Veterans Stadium; King County (Wash.) owns the King-dome; the City of Atlanta and the Fulton County Recreation Authority own The Omni; and the City of Philadelphia owns the Spectrum.

Maryland Special Advisory Commission on Professional Sports and the Economy, Professional Sports Arena Plan, Final Report, 143-48 (September 1985). Even though the expenditure of public funds for the construction of a stadium for professional football and baseball constitutes a valid public purpose, the real question is whether the State’s involvement through ch. 124 in this enterprise is within the meaning of Art. XVI’s exception of an appropriation “for maintaining the State Government.” Our cases lead us to the conclusion that ch. 124 does constitute a law making an appropriation for this purpose. As already observed, Winebrenner v. Salmon, 155 Md. 563 , 142 A. 723 (1928), involved a statute in which the proceeds of an increased tax on gasoline were dedicated to the creation of a special fund to be applied to road construction and maintenance. In determining whether this appropriation was for maintaining the State Government, Winebrenner recognized that the purpose of the exception in Art. XVI “was to provide against the possibility of the government being embarrassed in the performance of its various functions.” 155 Md. at 568 , 142 A. 723 .

Appropriations for maintaining the State Government, it said, “included more than merely those which provide overhead expenses, such as salaries and expenses incidental to keeping the government afloat as a going concern.” Id. The Court said that the government “includes all its agencies” and ⁴⁶⁴ that maintaining the government “means providing money to enable it to perform the duties which it is required by law to perform.” Id. Noting the importance of the State agency there involved (the State Roads Commission) in the construction and maintenance of highways, we characterized the agency’s function as “a primary function of government” and said that the appropriation there made was for maintaining the State government. In so concluding, we said that a law would not be within the referendum exception “merely because it carried an appropriation to an agency of the government, if it created an entire new function not theretofore recognized as coming within the sphere of governmental activity.” Id. at 568 , 142 A. 723 (emphasis in original).

We found, however, that the appropriation was not for a new function as the agency had been involved in road construction and maintenance work for many years prior to the statute’s enactment. Bickel v. Nice, 173 Md. 1 , 192 A. 777 (1937) involved a supplementary appropriation bill for the purpose of building a new state office Building. Citing Winebrenner , the Court said that housing for state officers and employees “would seem to be as much a primary function of government as building lateral roads, and equally entitled to be classed as maintaining the government.” 173 Md. at 10 , 192 A. 777 . It noted that “the actuating purpose of the excepting clause [in the Referendum Amendment] was to prevent interruptions of government” and that the test thereby intended was “not the need of the appropriation or the project to carry out that purpose, but the design.” Id.

Thus, it said if the appropriation was “designed for maintaining the government and the project stated is of a kind that may be within that classification of maintaining the State Government, it is excepted.” Id. It thus emphasized that the degree of need for the project was not the test; rather, the test was whether the project “was an activity within the class of those for maintaining the government, without reference to the existing need or lack of it.” Id. at 11 , 192 A. 777 . “Final power and responsibility for the ⁴⁶⁵ decision on the need and usefulness of the building must rest with the General Assembly,” the courts having no power to consider the wisdom of the enactment. Id. at 11 , 192 A. 777 . More recently, in Bayne v. Secretary of State, 283 Md. 560 , 392 A.2d 67 (1978), we had to determine whether restrictions on an appropriation in the Budget Bill for funding abortions for indigent women were for maintaining the State government.

Id. at 570 , 392 A.2d 67 . We first recognized that “the preservation of the health of the inhabitants is one of the chief purposes of government,” that relief of indigent persons is a governmental function, and that “the provision of medical services for indigent persons is a primary function of government.” Id. at 570-71 , 392 A.2d 67 . We held that the appropriation was one for maintaining the State government under Winebrenner and Bickel . We characterized the government agency there involved (the Department of Health and Mental Hygiene) as “one of the more important agencies of the State.” Id. at 572, 392 A.2d 67 .

We also recognized that the State had provided health services for indigent persons for more than thirty years and that the appropriation was not, therefore, for a new function. Id. at 572-73 , 392 A.2d 67 . Finally, we refused to question the Legislature’s wisdom in designing the medical assistance program and determining the method of paying for it. Id. at 573 , 392 A.2d 67 .

See also Budget and Referendum Amendments, 39 Md.L.Rev. 558 (1980). While believing that construction of stadiums for recreational purposes could in some instances constitute a primary function of State government, Judge Thieme found no such purpose in the provisions of ch. 124. This was so, he reasoned, because of the General Assembly’s declared preference for constructing the sports facilities through private investment, coupled with the fact that the State did not itself incur a constitutional debt under § 34 of Art. Ill of ⁴⁶⁶ the Constitution. 16 In addition to these reasons for declaring ch. 124 not to be a law making an appropriation for the maintenance of State government, the appellees urge that the State’s broad involvement with athletic facilities and recreational activities does not elevate legislation thereto relating to the status of a primary function of State government. That sports facilities, including stadiums, may serve a public purpose is not of itself, they claim, sufficient to make the law one for the maintenance of the State government under the rationale of Art. XVI.

In determining whether a particular appropriation is for maintaining the State government within the meaning of the Referendum Amendment, our cases have variously described the appropriation as being for a “primary,” “imperative,” or “important” function of State government. While the facts in those cases readily permitted such a particularized characterization of the function performed by the State agency involved, we did not thereby intend to elevate any of those adjectival terms to the status of a governing test. As we have already seen, Bickel v. Nice, supra, 173 Md. at 10-11 , 192 A. 777 sets forth the controlling considerations for ascertaining whether the appropriation is one for maintaining the State government. Our concern then, as now, was with the design of the appropriation, not its need or usefulness, so that if the authorized expenditure is “of a kind that may be within that classification [maintaining the State government],” it is not subject to referendum under Art. XVI.

Id. As otherwise stated in Bickel , the proper test is whether the governmental activity being funded comes “within the class of those for maintaining the government, without reference to the existing need or lack of it.” Id. at 11 , 192 A. 777 . ⁴⁶⁷ As a State instrumentality, the Authority is statutorily charged with the responsibility for considering the construction and operation of sports facilities for professional baseball and football. That this mission is in furtherance of public recreational purposes, and is a legitimate governmental objective of long duration, is not contested. The legislative determination to construct these facilities is manifestly not a function of government newly created with the enactment of ch. 124, 17 nor is it an undertaking for that purpose which is beyond the classification of an activity designed for the maintenance of State government.

Indeed, the very magnitude of the project approved by the Legislature in enacting ch. 124 plainly indicates its fundamental governmental purpose; it was one of the most ambitious revenue producing and spending measures enacted at the 1987 legislative session. The imaginative manner in which the Legislature chose to underwrite the enterprise was its business; the constitutionality of the method is not challenged. It is true that the General Assembly expressed a preference to maximize private investment in the project, and to minimize the use of state lottery revenues. But this preference was not intended, as we read ch. 124, to partially or totally inhibit or forestall public involvement where that course of action becomes essential.

In this regard, it is implicit in ch. 124, with its intricate public financing mechanism, that the Legislature recognized the certainty of the need for public participation since the project was of a type, and of such financial proportions, as unlikely to attract much in the way of private entrepreneurship. Notwithstanding the provision for private investment, and that the State’s credit was not pledged to the discharge of the contemplated bonded indebtedness, we think the appropriation here involved fully satisfies the Bickel test. Article XVI requires only that the appropriation be one for main ⁴⁶⁸ taining the State government, and we will not second-guess the legislative determination that it was so designed to achieve that end. Whether the stadium project is of more or less fundamental importance than other governmental expenditures is not for the courts to decide.

IV

We next consider whether ch. 122—the law designating Camden Yards as the stadium site—while itself making no appropriation for maintaining the State