Carter v. Rathburn , 85 Okla. 251 ( 1922 )

This proceeding was begun in the court below by Norma Rathburn, a clerk in the State Examiner's office, to compel the State Auditor to audit a claim for $125 as salary for the month of July, 1921; and to compel the auditor to carry upon his records an item of $1,500, alleged to have been appropriated by the Legislature as a yearly salary for said clerk for each of the years 1922 and 1923. The district court granted a peremptory writ of mandamus, directing the State Auditor to carry such item of appropriation upon his records. The State Auditor has appealed from such judgment to this court.

The facts are as follows: The Legislature of 1917 provided in chapter 260, Sess. Laws 1917, that the State Examiner should appoint one clerk to act as stenographer, at a salary of $1,200 per year, payable monthly; and in chapter 21, appropriated $1,200 for each of the two succeeding years for such purpose. The Seventh Legislature, in chapter 211, Sess. Laws 1919, made provision for the same office, at a salary of $1,500 per year, and in chapter 274 appropriated $1,500. for each of the two succeeding years. The Eighth Legislature, in Extraordinary Session, in chapter 183, Sess. Laws 1921, in the general appropriation bill, likewise made provision for the same office and appropriated $1,500 for each of the two succeeding years; such provision being made in Senate Bill No. 1 of the Extraordinary Session, which convened April 25, 1921, and adjourned May 21, 1921. Said bill passed both houses of the Legislature and was presented to the Governor for approval at 4:20 p. m., May 21, 1921, the afternoon of the day of final adjournment.

The Governor did not disapprove said Senate Bill No. 1, nor any item therein, nor take any action therein until May 31, 1921, ten days after the day of final adjournment, on which day he wrote, under said $1,500 item of appropriation, the following words: "This item disapproved 5-31-21. J.B.A. Robertson, Governor" — and ran an ink line through the figures "$1,500" in the column of appropriations for each of the years for 1922 and 1923.

On the same day the Governor marked said Senate Bill as follows: "Approved as to all items except those specifically marked disapproved." He also indorsed on said bill his reasons for approving the bill as a whole and for disapproving certain items therein in the following words:

"I am approving this bill knowing that it is unsatisfactory in nearly all of its provisions; many departments will be seriously handicapped because of insufficient funds while a few are given more than they deserve, but because of the manner of distribution, I am unable to veto large sums which these departments do not need. I disapproved several items because they are not needed and because the Legislature failed to follow the recommendations of the Budget Law. The bill is approved, except as to all items specifically marked 'disapproved,' etc. J.B.A. Robertson, Governor." — and on June 3, 1921, he deposited said Senate Bill in the office of the Secretary of State.

In due time plaintiff presented her claim to the State Auditor for $125, as salary for the month of July, 1921, which claim was not allowed and not audited by the auditor on the grounds that the items of appropriation for her salary having been disapproved by the Governor, and not repassed by the Legislature, left no valid appropriation for her salary.

It is agreed by the parties hereto that the only question to be determined is: Whether said item of $1,500 for each of the years 1922 and 1923 is a valid appropriation.

A determination of the above question, however, necessitates a determination of several other questions, among which are: How and when a bill becomes a law? When and how the Governor's power to approve or disapprove shall be exercised, and what effect this failure to either approve or disapprove has upon a bill regularly passed by both houses of the Legislature? These questions are answered by the provisions of our Constitution.

Section 1, article 5, of the Constitution provides:

"The legislative authority of the state shall be vested in a Legislature, consisting of a Senate and a House of Representatives; but the people reserve to themselves the power to propose laws and amendments to the Constitution and to enact or reject the same at the polls independent of the Legislature, and also reserve power at their own option to approve or reject at the polls any act of the Legislature."

Thus the legislative power of the state is vested in the Legislature, consisting of a Senate and a House of Representatives; not vested in the Legislature and the Chief Executive. But sections 11 and 12, article 6, of the Constitution confer certain powers upon the Governor, known as the veto powers, and prescribe the manner of exercising such powers. It must be observed, however, that sections 11 and 12, article 6, of the Constitution relate to executive duties, rather than legislative duties. These sections are part of the article on executive departments, but confer certain powers relative to legislation upon the Governor.

It is unnecessary to discuss the underlying reasons which the framers of the Constitution had for conferring such powers upon the Chief Executive, or the motives which may or may not have actuated them in conferring such powers. The fact is that sections 11 and 12, article 6, of the Constitution do confer such powers.

Section 11 provides:

"Every bill which shall have passed the Senate and House of Representatives, and every resolution requiring the assent of both branches of the Legislature, shall, before it becomes a law, be presented to the Governor; if he approve, he shall sign it; if not, he shall return it with his objections to the house in which it shall have originated, who shall enter the objections at large in the journal and proceed to reconsider it. If, after such reconsideration, two-thirds of the members elected to that house shall agree to pass the bill or joint resolution, it shall be sent, together with the objections, to the other house, by which it shall likewise be reconsidered; and, if approved by two-thirds of the members elected to that house, it shall become a law notwithstanding the objections of the Governor. In all such cases, the vote in both houses shall be determined by yeas and nays, and the names of the members voting shall be entered on the journal of each house respectively. If any bill or resolution shall not be returned by the Governor within five days (Sundays excepted) and after it shall have been presented to him, the same shall be a law in like manner as if he had signed it, unless the Legislature shall, by their adjournment, prevent its return, in which case it shall not become a law without the approval of the Governor. No bill shall become a law after the final adjournment of the Legislature, unless approved by the Governor within fifteen days after such adjournment."

Section 12 provides:

"Every bill passed by the Legislature, making appropriations of money embracing distinct items, shall, before it becomes a law, be presented to the Governor; if he disapproves the bill, or any item, or appropriation therein contained, he shall communicate such disapproval, with the reasons therefor, to the house in which the bill shall have originated, but all items not disapproved shall have the force and effect of law according to the original provisions of the bill. Any item or items so disapproved shall be void, unless repassed by a two-thirds vote, according to the rules and limitations prescribed in the preceding section in reference to other bills. Provided, that this section shall not relieve emergency bills of the requirement of the three-fourths vote."

Section 11 above applies to all bills as a whole. That is, bills in their entirety. No bill in its entirety becomes a law without compliance with the provisions of said section. Any bill becomes a law as a whole when such provisions are complied with. The provisions are plain and, in our opinion, need no construction further than that they mean what they say.

But in section 12, supra, recognizing the difference between a bill as a whole and a general appropriation bill containing separate, independent items, the Constitution makes express provision as to how such a bill may become a law. The Constitutional Convention seems to have taken cognizance of the fact that general appropriation bills are necessarily made up of numerous, separate, independent items, and in order to relieve such a bill from the restrictions imposed under section 11, supra, and to free it from danger of being defeated as a whole, made provisions whereby separate items in such a bill may be disapproved and cut out by the Governor, without affecting the bill in its entirety.

In order to make the provisions of said section 12 applicable, a bill must be one making an appropriation of money and embracing separate and distinct items; it must pass both houses and be presented to the Governor; if the Governor disapproves any item thereof, he must communicate his disapproval, with his reasons therefor, to the house in which the bill originated, and all items not disapproved shall have the force and effect of law according to the original provisions of the bill and every item so disapproved is void; that is, does not become a law unless such item is repassed by a two-thirds vote, as provided in section 11, supra. In other words, if an item in a general appropriation bill is disapproved by the Governor, there is no law provided in the Constitution by which it may become a law, except by repassage by a two-thirds vote, as provided in section 11, supra.

It is contended by the plaintiff that the item as to her salary was not "so disapproved." That is, was not disapproved and sent back to the house in which it originated with such disapproval and reasons therefor while the Legislature was in session, and that by not "so disapproving" such item, that is, by not disapproving same and sending it back to the house in which it originated, the act of disapproval had no effect on the item. In other words, it is contended that, unless the Governor disapproves an item in a general appropriation bill and sends it back for repassage before the Legislature adjourns, the act of disapproval has no effect upon the item and that it becomes a law notwithstanding his disapproval, if he waits until after the Legislature adjourns before indorsing his disapproval thereon.

It is plain that section 12 does not contemplate that the Governor will withhold his approval until after the Legislature adjourns; it provides that if the Governor disapproves any item, he shall return it to the house in which it originated, and contemplates that this will be done while the Legislature is in session, and provides that no item so disapproved shall become a law unless repassed by a two-thirds vote. But we have here an item that is not disapproved before the Legislature adjourns and not sent back to the house in which it originated with the Governor's disapproval and objections. Such a condition as this does not seem to have been provided for in the Constitution, yet such is the condition which confronts us. We have here a general appropriation bill consisting of numerous, separate, distinct items. The bill was presented to the Governor before adjournment of the Legislature. The Governor took no action upon it until after the Legislature had adjourned, but kept it in his possession until after adjournment, and then disapproved the item in question. The Constitution makes no express provision for such a condition, nor any specific provision whereby an item may become a law under such condition. Hence, to give such item the force and effect of law, we must do so without any express authority from the Constitution.

This exact question has never been before this court. It is contended, on behalf of plaintiff in error, that the case of Regents State University v. Trapp, 28 Okla. 83, 112 P. 910, applies and should govern the decision in this case, but the exact question involved in this case was not involved in Regents, etc., v. Trapp. The two paragraphs of the syllabus in said case disclose the question which the court had before it and the decision of the court upon such question; said syllabus being as follows:

1. "Section 12, article 6, Constitution, providing that the Governor may disapprove any item of a bill making appropriations of money embracing distinct items, does not apply to a special appropriation bill containing only one item of appropriation for the support and maintenance of the State University; and the act of the Governor approving the bill in part and disapproving other parts thereof, directing how the funds appropriated shall be appropriated, is a nullity."

2. "Senate Bill No. 268, Sess. Laws 1909, having been presented to the Governor less than five days before the adjournment of the Legislature by which it was enacted, and not having been approved by the Governor within 15 days after the adjournment of said Legislature, never became a law."

The controversy in that case arose from the fact that the Governor interpreted section 1 of the bill in question as one of several distinct items in an appropriation bill, and disapproved such item on the theory that section 2 contained other items of appropriation which he did not formerly disapprove, but the court regarded the item of appropriation in section 1 of said bill as the only item of appropriation in the entire bill and held that a disapproval of that item had the effect of vetoing the bill in its entirety. The court said:

"The bill in the case at bar does not embrace distinct items of appropriation; it embraces a single item, with directions how that item shall be expended, together with directions as to how other items of appropriations made by other acts of the Legislature shall be apportioned and expended. The Governor's power to approve or disapprove same therefore is not derived from section 12, article 6, of the Constitution, but from section 11, supra. Under that section, since the bill was presented to the Governor less than five days before the adjournment of the Legislature, approval of the whole bill by him was necessary within 15 days after its adjournment, in order for it to become a law. This he never did. But, since he was without authority thus to approve the bill, his sanction of parts of the bill was ineffectual to give those parts the force of a law. Whether, if the Governor had understood his powers relative to the bill differently he would have approved the whole bill, including those items disapproved by him because in his judgment they were excessive, can only be conjectured. What he did do is a matter of record. He did not approve the entire bill, but specifically disapproved portions of it. It follows that the bill never became a law; and that the State Auditor is without authority and under no duty to draw warrants upon the fund purported to be appropriated thereby. The relief sought by plaintiff is denied."

In the case at bar the question is different. The item in question here is one of many separate, independent items in a general appropriation bill and presents a different question to the one presented to the court in the Trapp Case, supra.

The exact question presented here has been before the Supreme Court of West Virginia in two cases, to wit: May v. Topping, (W. Va.) 64 S.E. 848, and Woodall v. Darst (W. Va.) 77 S.E. 264; and section 12 of our Constitution being identical with the West Virginia Constitution, the decisions of that court upon the identical question presented here should be strongly persuasive with this court. The Supreme Court of West Virginia, in the case of May v. Topping, supra, delivered a very exhaustive and closely reasoned opinion; the conclusion in such opinion being that the disapproval of an item in an appropriation bill by the Governor must be done in the strict, technical manner prescribed by the Constitution in order to affect such item; that is, that if an item in an appropriation bill is objectionable to the Governor, he must disapprove it while the Legislature is in session and must send the bill back to the house in which it originated with his objections and reasons for disapproving it set forth while the Legislature is yet in session, and that unless his disapproval be exercised in this technically exact manner, his approval has no effect upon the item; that unless he exercises his disapproval in such manner, then the item is not "so disapproved" as contemplated by the Constitution and becomes a law regardless of his disapproval. The reasoning of the learned Justice who delivered the opinion in said case is very clear and forceful throughout, and to an extent, at least to a certain point or stage in the question presented, is, we think, both forceful and sound, namely, to the extent that the Constitution clearly intends that the Governor shall exercise his power of disapproval of an item while the Legislature is still in session. Up to this point the opinion is in clear harmony with the Constitution; but when the court went further and held that an item, though disapproved by the Governor, still has the force and effect of law, unless disapproved while the Legislature is in session, we think, it was supporting its conclusions by a mere process of reasoning, rather than by expressed provisions of the Constitution. The Constitution does not expessly say that, unless the Governor exercises his disapproval while the Legislature is in session, his disapproval will have no effect upon the item in question, nor does it expressly say that any item not disapproved until after adjournment shall become a law. It says, "But all items not disapproved shall have the force and effect of law. * * *" But does not say that any item not disapproved until after the Legislature has adjourned shall have the force and effect of law.

True, the Constitution says, "Any item so disapproved shall be void," and probably true that the phrase "so disapproved" means disapproved while the Legislature in session, but it does not say that unless it is "so disapproved" it shall have the force and effect of law. And to give such item the force and effect of law is to do what, we think, the Supreme Court of West Virginia did, put life into it by a process of abstract reasoning rather than by the plain language of the Constitution.

Courts are necessarily vested with the authority to interpret the law and say what it means after it becomes a law. Also they have power to determine that an act has not become a law where constitutional requirements have not been met, but it was never intended that by a mere process of reasoning, however plausible, courts may breathe life into an act which has not been given life by the plain creative provisions of the Constitution.

The item in question was disapproved by the Governor, and, although disapproved after adjournment of the Legislature, the constitution does not say that because of such fact it shall have the force and effect of law. The court cannot say more than the Constitution has said. Had the Constitutional Convention intended that unless an item were disapproved before adjournment it should have the force and effect of law, and that disapproval of an item after adjournment should have no force or effect upon the item, it could have easily said so. It may have had reasons for not saying so. Whether there were reasons for not saying so is not the court's concern. The fact is that it has not said so and for the court to say the item in question here has the force of a law is to say what the Constitution does not say.

And, furthermore, on the question as to when the Governor shall exercise his disapproval, and how he shall exercise it, and the time within which he is required to exercise it. While the Constitution clearly implies that he shall do so while the Legislature is in session, it just as clearly implies that the Legislature shall remain in session until the Governor has had a reasonable time in which to examine and inspect a general appropriation bill and to exercise his disapproval, if he feels it his duty to do so.

The Constitution says that an appropriation bill embracing distinct items shall be presented to the Governor, and if he disapproves it, he shall communicate his disapproval to the house in which it originated. This clearly contemplates that the Legislature will be in session at the time it is presented, and implies that it shall remain in session until the Governor shall have had reasonable time in which to examine and inspect the items of a general appropriation bill. It does not contemplate that the Legislature may load an appropriation bill with unnecessary and objectionable items and then run away before the Governor has time to act.

We are not saying that the item in question, or any other item in the appropriation bill, was unnecessary or objectionable. It is very probable that the appropriation in question would have been conducive to better service in the State departments had it become a law, but this is a question in which the court has no voice. We are not censuring the Legislature, nor the Governor. It is not the court's province to do so, but we do say, in answer to some of the arguments which have been made, that just as great a detriment to the state's interest could be caused by the Legislature loading an appropriation bill with unnecessary items of appropriation and adjourning before the Governor had time to examine them, as it has been argued that the Governor could cause by withholding his disapproval until after adjournment. It has been argued that the Governor would be empowered to abolish the important departments of state by disapproving the appropriation therefor after the Legislature had adjourned. But if such a condition be at all possible, the answer to it is that the same condition could be brought about by the Legislature overloading in appropriation bill with reckless expenditures and immediately adjourning before the Governor had any time to examine items therein. But the Constitution does not presume that such dire conditions will be brought about by either the Legislature or the Governor. The Constitution presumes that all the departments of the state will do their duty, and such is the presumption which this court will indulge.

As to the question of relative responsibility in such matters, we should look to the Constitution itself and be guided by reason, for both combine to place the same responsibilty upon the one that is placed upon the other, the same obligation upon the one that is placed upon the other. The Governor should act with reasonable promptness and be actuated by a high sense of duty. The Legislature should give him reasonable time within which to act and it should be actuated by the same sense of duty.

But, aside from every course of reasoning, the stubborn facts in the case are that we have an item which has been expressly disapproved by the Governor, and has not been repassed by a two-thirds vote as provided in section 11, supra, and the Constitution makes no provision by which such item may be given the force and effect of law, except by a repassage as provided in said section 11.

It is our opinion that, as the Constitution does not give such item the force and effect of law, this court has no power to do so.

By this we do not mean that the Governor has power to repeal a law already in force. We do not hold that, by a disapproval of an appropriation for clerkship the Governor may repeal the act which created the clerkship. The Governor may disapprove an appropriation made for clerkship, but he cannot repeal the law creating the clerkship. The clerkship in question was created by chapter 260, Sess. Laws 1917, and is yet in full force and effect. Each successive Legislature since 1917 has made an appropriation for such clerkship and such appropriations have heretofore not been disapproved, and the fact that the Governor has disapproved the item of appropriation made by the last Legislature does not repeal the clerkship, but leaves it in full force as created by the act of 1917. To illustrate what we mean, this clerkship is provided for by statute, and if it were filed by a clerk until the convening of the next Legislature and the next Legislature should make appropriation to pay same, which it has authority to do, the only effect it would have would be to deprive such clerk of her pay until the Legislature met and made another appropriation for her salary. The clerkship is there, created by statute, and has not been abolished, but the Governor has disapproved the item of appropriation for same, and the Constitution makes no provision by which such item may become a law, except by a repassage, as provided in section 11, supra.

By this we are not to be understood as holding that the Governor has the right to veto a bill of this character after the Legislature has adjourned, but what we do hold is that the appropriation for this clerkship has not become a law as required by the Constitution. The power to make appropriations, for which the public must pay the taxes, is one of the most sacred rights delegated to legislative bodies, and the law prescribes the exact manner in which such appropriations may be made, and the courts should jealously guard against straining the provisions of law in order to make an appropriation valid.

Hence, for the sole reason that this appropriation is not made in strict compliance with the law, this court is of the view that it is an invalid appropriation. Not because the Governor has disapproved this item after the adjournment of the Legislature, but simply because it has not become a law as required by the provisions of the Constitution.

Wherefore, the judgment of the lower court is reversed and the writ denied.

PITCHFORD, JOHNSON, and MILLER, JJ., concur; KANE and McNEILL, JJ., concur in the conclusion: ELTING and KENNAMER, JJ., dissenting.