213 N.W. 500 | S.D. | 1927
In this case, plaintiffs make original application to the Supreme Court for a writ of mandamus commanding the defendant, as secretary of state, to furnish plaintiffs a certified copy of Senate Bill No. 113, known as the General Appropriation Bill, for the biennium of 1927-1928. Plaintiffs have made proper application, tendered the stautory fee, and it is the duty of defendant to furnish the copy if the .bill has become a law, otherwise not. Defendant refuses to furnish a copy, for the reason that, on account of a message from the Governor returning the bill to the Senate (the house in which it originated) without his signature, she is in doubt whether the bill ever became a law. The Judges of the Supreme 'Court, deeming themselves and also- all the judges of the circuit courts in the state disqualified by reason of the appropriation for the maintenance of the judiciary being included in the bill, have, as provided by statute, appointed five members of the bar, having the qualifications required for Judges of the Supreme Court to hear and decide the case, viz.: William G. Rice, of Deadwood; James 'Brown, of Chamberlain; Philo Hall, of Brookings; F. D. Wicks, of Scotland; and Emmett C. Ryan, of Aberdeen, with James Brown as Presiding Judge.
As appears from the allegations of plaintiffs’ application for the writ, admitted by the answer of defendant, together with an agreed statement of facts filed as part of the record in this case, the facts necessary to a determination of this case may be briefly stated as follows: Erskine is a state Senator; the plaintiff Otte is a member of the House of Representatives. At the twentieth ses
“I am herewith returning you Senate Bill No. 113, which is the General Appropriation Bill, being an act entitled 'An act appropriating money for salary and expense of the executive and judicial departments of the state, for salaries and expenses of all officers, boards and departments, for support and maintenance of the educational, charitable and penal institutions and the soldiers’ home, maintenance of the state house, maintenance of the national guard, for geological surveys, and in aid of rural and consolidated schools, and maintenance of- Custer State Park.’
“I cannot approve this, measure for the reason that the appropriations therein provided, the special appropriations that have already been passed, and the pending necessary special appropriations will exceed by almost a million dollars the estimate annual revenue income. This is a business proposition, and we cannot continue to spend in excess; of our revenue income. It is necessary for this 'Legislature to do one of two- things; either reduce the amount of the total appropriations within the revenue income, or provide the necessary revenue to meet the appropriation expenditure. The people have delegated this power to the Legislature, and they have the only authority tO' work out this problem. This responsibility rests upon you; you must decide how expenses can be kept within revenue income.
“This, is not an executive problem, the executive department can only administer as you provide. We owe it to the people of
“I further desire to call your attention to the fact that you have made no appropriation or provisions to carry on the fish and game department of our state. This is a very important state activity. Under present law, the fish and game fund' reverts to the general fund on July i, 1927. After that date, there' will be no way in which to carry out the law in respect to the game and fish department unless you either appropriate the funds received in this department for that purpose, or make the necessary appropriations out of the general fund to take care of this activity. Your failure to properly provide funds to carry on the activities of the game and fish department will destroy very many valuable properties now owned and operated for that purpose.
“I would suggest that, if you do not desire to appropriate the income derived from the game and fish department for the use of the preservation and propagation of game and fish, you then provide for the necessary appropriation in the general appropriation bill so that this state activity can properly function.
“Respectfully submitted,
“W. J. Bulow, Governor.”
As appears from Senate Journal, pages 839-841 of February 28, 1927, the Governor’s message accompanying the return of the bill to the Senate was read and published in the S'enate Journal; and the Senate thereafter adopted a motion to reconsider Senate Bill No. 113 on March 2, 1927, and deferred such reconsideration until March 3, 1927, when the bill was reconsidered by the 'Senate, all of the members elect being present, the vote being determined by the “ayes” and “nays,” and the names of the members voting for and against the bill entered upon the Senate Journal. “There were ayes 28, nays 17.” The bill, not having received an affirmative vote of two-thirds of the members present, was declared lost; and said bill was not sent to the House of Representatives, but remained in the files of the Senate until the adjournment thereof sine die. W'e deem the foregoing a sufficient statement of the facts in the case necessary to a determination of the questions of law involved.
■Section 9. “Every bill, which shall have passed the Legislature, shall, before it becomes a law, be presented to the Governor. If he approve, he shall sign it, but if not, he shall return it with his objection to the house in which it originated, which shall enter the objection at large upon the journal and proceed to reconsider it. If, after such reconsideration, two-thirds of the members- present shall agree to pass the bill, it shall be sent, together with the objection, to the other house, by which it shall likewise be reconsidered, and if it be approved by two-thirds of the members present, it shall become a law; but in all such cases the vote of both houses shall be determined by the yeas and nays, and the names of the members voting for and against the bill shall be entered upon the journal of each house respectively. If any bill shall [not] be returned by the Governor within three days (Sunday excepted) after it shall have been presented to him, the same shall be a law, unless the Legislature shall by its adjournment prevent its return; in which case it shall be filed-, with his objection, in the office of the secretary of state, within ten days after such adjournment or become a law.”
Section 10. “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 of the bill approved shall be law, and the item or items disapproved shall be void', unless enacted in the following manner: If the Legislature be in session he shall transmit to the house in which the bill originated a copy of the item or items thereof disapproved, together with his objections thereto, and the items objected to- shall be separately reconsidered, and' each item shall then take the same course as is prescribed for the passage of bills over the executive veto.”
It is contended by plaintiffs that the message of the Governor accompanying the -bill on its return to the -Senate, as herein-before stated, was not a veto of the bill or of any item or items therein, and that the only power of veto as to a general appropriation bill is found in section 10 of the Constitution, above quoted, and that, by this section, the Governor’s veto power extends only to an item or items of the 'bill, and that he cannot veto the bill as
“Every bill, which shall have passed the Legislature, shall, before it becomes a law, be presented to the Governor.”
The General Appropriation Bill is, beyond question, one of the bills referred to by the framers of our Constitution, as the word “every” includes all. The presentation of the bill to the Governor is not a mere idle ceremony; but, upon its receipt, the Governor, before the bill may finally become a- law, has a duty to perform under the provisions of the Constitution. If the bill, in its entirety, meets with his approval, he shall sign it; if it does not, he shall return it with his abjection to the house in which it originated, which body shall enter the objection at large upon the Journal and proceed to reconsider the bill. If, after reconsideration, two-thirds of the members present shall agree to the passage of the bill, it shall be sent, together with the abjection, to the other house, by which it shall likewise be reconsidered; and, if it be approved by two-thinds of the members present, it shall become
Sections 8 and 9 of article 4 of the Constitution of Wyoming are substantially identical with sections 9 and IO' of article 4 of our Constitution. The question of the veto' power of the executive of items in a general appropriation bill was considered by the Supreme Court of Wyoming in State ex rel Jamison v. Forsyth, 21 Wyo. 359. 133 F. 521.
In determining whether the General Appropriation Bill is governed by section 8 of article 4 of their Constitution, which corresponds to our section 9 of article 4, the court in that case said:
“We think it clear that the above-mentioned provision of section 8 applies as well to the General Appropriation Bill as to other bills, for the section provides that, ‘every bill which has passed the Legislature’ shall, before it becomes a law, be presented to the
It is true, in the case under -consideration by the Supreme Court of Wyoming, that the question involved was as to t'he power of the Governor to veto a part o-f an item in the General Appropriation Bill; but, in determining the question, it became necessary to c'onstrue both of said sections 8 and 9, and the court expressly holds that the General Appropriation Bill came within the provisions of section 8 of article 4, which, in substance, is the same as section 9 of article 4 of our Constitution. S-uch authorities as have been brought to our attention bearing in any way upon this point sustain this position. In Commonwealth v. Barnett, 199 Pa. 161, 48 A. 976, 55 L. R. A. 882, it is said that under the former Constitution of that state the Governor was compelled to- approve or defeat the whole bill, but the present Constitution, giving power to veto separate items, was an “effort to increase the power and scope of his veto.”
One judge dissented in this case, but he agreed with the majority on this point, and said that “prior to the adoption of the present Constitution. the Governor was -compelled to approve or disapprove the entire * * * bill,” and to remedy this evil the veto power was extended, so that he might veto separate items.
The inclusion of the power to veto separate items certainly could not be an extension or increase of power, if it took away the power to veto the bill as a whole and permitted him to veto specific items only. The rule contended for by plaintiff -would operate as a limitation and restriction, rather than ás an extension and increase of power.
In Mills v. Porter, 69 Mont. 325, 222 P. 428, 35 A. L. R. 592, sometimes referred to- as the “Veto Case” the origin and development of executive veto, and the extent and limits of the power under constitutional provisions similar to those of South D-akota, are extensively considered, an-d, while the precise point before us was not necessarily involved in that case, the court there expresses the view that a general appropriation bill made up of many separate items may be vetoed as a whole.
An order will be entered denying the peremptory writ of mandamus prayed for and discharging the defendant from the order to show cause heretofore issued.
