State Ex Rel. Dickson v. Saiz

On Motion for Rehearing.

PER CURIAM.

The defendant (appellee) has moved for rehearing and we may as well at the outset give his counsel credit for having filed one of the best prepared and argued briefs it has been our pleasure to read and consider for some time. They have argued ably and well for the position they maintain. By and large, however, aside from a renewal and re-argument of contentions made at the original hearing, when boiled down, the brief filed is in essence a polemic against the very existence of the power of partial veto, its wisdom and rationale.

This is demonstrated by repeated reference to dire consequences that may flow from the conclusions we have announced in the opinion filed. In other words, we are told that evils may result from an abuse by a Chief Executive of this power of partial veto. Some of these were put forward in briefs heretofore filed and some not then thought of are placed before us now.

The fact is, however, that the power of partial veto is written into our fundamental law. It is the work of the framers of our constitution. It is there, is a living reality, and as a court we can not rub it out. Our sole function is to ascertain its purpose and give it meaning, as nearly in conformity with the true intent of the framers of the constitution and the people adopting it, as we can. And in arriving at a declaration of that intent, we are not to be swayed from our conviction of what it is by imagined abuses that may be conjured up in the minds of some. The Governor has the power to pardon. Yet, it is no valid challenge to existence of the power to have it suggested he might empty the penitentiary overnight. He could, but no sane mind would.

Laws are enacted and constitutions drafted to be applied and administered by reasonable minds. It is neither a fair nor decisive test of their meaning that on occasions, powers conferred by them are, or conceivably could be, abused. We have reviewed our opinion on file in this case after careful study of the briefs filed by counsel for movant and in the light of considerations mentioned above. Nor have we been unmindful throughout that in exercising a partial veto the Governor acts in a quasi-legislative capacity.

What the Governor in the case at bar sought to do was to root out of the bill upon which he was acting so much thereof as would have made it possible to desecrate the Sabbath by having saloons and bars running wide open over the state throughout that holy day. Mindful that New Mexico was made up of law-abiding, God fearing people whose religious sensibilities would be shocked by such a situation, he went through the bill before him with meticulous care, lifting from it, wherever found, the' part or parts germane to the subject about to be proscribed, and which together, made up a rounded whole, and took such part or parts from the bill. It mattered not where in the bill they rested if they constituted an integral part of the subject being partially vetoed — out they came!

It was while viewing the portions of the' bill to be proscribed in this light, that our opinion employs language criticized both by counsel for defendant ánd the Attorney General, as Amicus Curiae, by reason of its supposed implications. The language is as follows:

“ * * * the challenged act is not invalid on any of the grounds raised against it, including the claim that the act is bad because the partial veto applies to part of a section or subsection

(Emphasis added).

In an application of the italicized language to the facts of this case we have nothing to retract. As already said, in order to accomplish his purpose to proscribe open saloons on the Sabbath, the Governor was compelled to strike language presupposing such permission wherever found. As we view the matter, he was acting strictly within his quasi-legislative capacity in exercising, as he did, his power of partial veto. We see in his action no usurpation of the legislative function. There was here present no reducing, nor any scaling, of appropriations, freely cited by all counsel in this case, including Amici Curiae, as a typical example of what might be called usurpation of a purely legislative function, citing among other authority, Fergus v. Russel, 270 Ill. 304, 110 N.E. 130, and annotation at 35 A.L.R. 600.

We entertain no doubt of the power of this Court, when and if a Chief Executive discards the. robe of Governor and puts on that of a legislator, in exercising the power of partial veto, we shall be able to distinguish between the two and rule accordingly, whether the claimed transformation be in scaling an appropriation or otherwise. No such situation confronts us here, a fact denying us the authority to speak decisively on the subject at this time, and questioning as well the propriety of our doing so.

Seen through, we are disposed to agree with special counsel for the Bureau of Revenue, that defendant’s position would question the power of the Governor to exercise the power of partial veto at all after adjournment of the legislature. We are unable and, hence, unwilling to subscribe to any such conclusion. Nor do we attach the significance, as do counsel for defendant, to the fact that the last paragraph of Art. 4, Const. § 22, fails to direct the Governor to deposit with the Secretary of State, immediately, or at any time, the portions of a bill he approves, after exercising his partial veto. It is not to be supposed, of course, that he would be found carrying the bill around in his hip pocket, or billfold. Naturally, he would duly deposit same with the Secretary of State, as in the case of any other bill upon which he had finally acted.

We have reconsidered the whole case, as if before us on rehearing, and remain satisfied with the opinion filed, as our conclusions are applied to the facts of the case before us.

The motion for rehearing will be denied.

It is so ordered.

' SADLER and COMPTON, JJ., and McMANUS, D. J., concurring.