Wheeler v. Gallet ( 1926 )

The 18th session of the legislature, by H. B. 308, appropriated $101,250 for expenses of the penitentiary other than salaries and wages. The Governor sought to scale this down to $80,700, thereby reducing this item of the appropriation bill by $20,550. The state auditor credited the appropriation account with the reduced amount. The plaintiff, warden of the penitentiary, presented a bill for $61.61 chargeable against the appropriation in question. The auditor refused to file this bill or present it to the board of examiners, on the ground that the appropriation was exhausted. The plaintiff filed a petition for a writ of mandate against the auditor to compel him to accept the bill for filing and audit, and present it to the board of examiners for their audit and consideration. An alternative writ was issued. The defendant demurs.

The question is the proper construction to be placed upon section 11, art. 4 of the constitution as applied to the Governor's right of veto exercised on an appropriation bill.

The material part of the section under consideration reads as follows:

"The governor shall have power to disapprove of any item or items of any bill making appropriations of money embracing distinct items, and the part or parts approved shall become a law and the item or items disapproved shall be void unless enacted in the manner following":

"Item" is defined by Webster's Dictionary as:

"An article; a separate particular in an enumeration, account, or total; a detail; as, the items in a bill."

Standard Dictionary defines it as:

"A separate article or entry in an account or schedule; a sum entered."

A New English Dictionary, edited by James A.H. Murray, L. L. D. defines it as:

"An article or unit of any kind included in an enumeration, computation, or sum total; an entry or thing entered in an account or register, a clause of a document, a detail of expenditure or income, etc."

The difference between the amount approved by the legislature, namely, $101,250, and the amount authorized by the Governor, namely, $80,700, did not consist of any item or items as set forth in H. B. 308. The Governor sought merely to diminish the amount of the sum approved for the expenses of the penitentiary, other than salaries and wages, by deducting therefrom $20,550. Section 13 of art. 7 of the constitution of Montana is almost identical with the section of our constitution under consideration, the material portion thereof reading as follows:

"The Governor shall have the power to disapprove of any item or items of any bill making appropriations of money, embracing distinct items, and the part or parts approved shall become a law, and the item or items disapproved shall be void, unless enacted in the manner following":

The supreme court of Montana in Mills v. Porter, 69 Mont. 325,222 P. 428, 25 A.L.R. 592, having under consideration the identical action with respect to an appropriation bill held that the Governor did not have the right to change an item, but that under this provision of the constitution he was required either to approve or reject in toto each individual separate and distinct item as set forth in the bill. The reasoning of that case is applicable and in point herein. A like situation was considered in Oklahoma under a constitutional provision similar to ours and the court there concluded as follows:

"It seems quite clear to us . . . . that a fair interpretation of our constitutional provision requires us to hold that the action of the Governor in attempting to approve in part and disapprove in part distinct items of the institutional appropriation bill was an unauthorized and futile gesture and wholly ineffectual for any purpose." (Peebly v.Childers, 95 Okl. 40, 217 P. 1049.)

This conclusion is likewise supported in principle byStong v. People, 74 Colo. 283, 220 P. 999. There was no item of $20,550. The Governor therefore did not veto any item but he attempted to veto a part of an item; this the constitution does not say he may do.

The remaining question is the effect of the Governor's action upon the item he attempted to cut down. Section 10 of art. 4 of the constitution provides, so far as material, as follows:

". . . . Any bill which shall not be returned by the governor to the legislature within five days (Sundays excepted) after it shall have been presented to him, shall become a law in like manner as if he had signed it, unless the legislature shall by adjournment, prevent its return, in which case it shall be filed, with his objections, in the office of the secretary of state within 10 days after such adjournment (Sundays excepted) or become a law."

It is apparent that by the terms of this section, in the absence of a valid veto, the act or bill as passed by the legislature, becomes a law. The bill in question was filed by the Governor with the Secretary of State within ten days after the legislature had adjourned. His objections thereto by reason of the conclusion reached above did not amount to a veto; his act was a nullity, under section 11, art. 4, of the constitution; therefore, the bill became a law and the appropriation as originally made by the legislature in the sum of $101,250 stands. (State v. Forsyth, 21 Wyo. 359, 133 P. 521, at 529.)

The demurrer is therefore overruled and a permanent writ of mandate will issue, ordering the auditor to recognize the appropriation in the sum of $101,250.

Wm. E. Lee, C.J., and Budge and Taylor, JJ., concur.