13 V.I. 53 | D.V.I. | 1976
OPINION
This cause found its way before the Court initially on a complaint brought by the Government of the Virgin Islands and Cyril E. King, Governor of the Virgin Islands, as Plaintiffs. Named as Defendants are the Eleventh Legislature of the Virgin Islands, the President of that body, members of the Legislature in various capacities, and the Executive Secretary of the Legislature.
In their first cause of action of the two-count verified complaint the Plaintiffs sought injunctive relief, as well as a judgment declaring the duties, rights and relationship of the opposing parties vis-a-vis section 9(d) of the Revised Organic Act of the Virgin Islands.
Similar relief is sought in the second cause of action. There, however, the Plaintiffs challenge the validity of an enactment of the Legislature, Bill No. 6784, which the Governor had vetoed and returned to the Legislature with his message of disapproval. Acting pursuant to its recognized authority, the Legislature overrode the Governor’s veto and the bill became law as Act No. 3718. Claiming that the Act impermissibly trenches on executive powers, the Governor has prosecuted the cause of action stated in Count II of the complaint.
The Defendants, in addition to denying the material allegations on each of the two counts pleaded by the Plaintiffs, have launched a two-pronged attack of their own, in the first count of which they challenge the validity of several items vetoed by the Governor of various seg
Plaintiffs’ first cause of action, to which we now return, has already been decided by this Court, a decision now on appeal before the United States Court of Appeals for the Third Circuit. We there held that under section 9(d) of the Revised Organic Act, properly construed, the Legislature is completely without authority to override an item veto of the Governor. Since making that judgment, and in connection with the resolution of the remaining disputes between these parties, the Court has found what it conceives to be additional buttressing for its ruling in the provisions of the numerous state constitutions examined by the Court in which the state governors are granted the item veto power. Without exception those state constitutions provide in language, taking one form or another, that the item veto of the Governor may be overridden by the Legislature in the same manner as his general veto of an entire bill.
Threshold questions were raised by the Defendants but hardly pressed in their written arguments. Perhaps, sub silentio, this is a concession on their part that Plaintiffs’ position is worthy of full merit. These questions raised by Defendants to which I have adverted, contest the propriety of the Government of the Virgin Islands as a party plaintiff, the Governor of the Virgin Islands as a party plaintiff, and the standing of the latter to maintain this suit. We deal quite briefly with these arguments and hold that for the various reasons stated in the briefs of the Plaintiffs the motions to dismiss on those asserted grounds must be and are denied.
Putting aside case authority which supports the Governor as a party plaintiff, he could, at a minimum properly maintain this suit in this jurisdiction as a taxpayer. Defendants, in their contention that the Government of the Virgin Islands is not a proper party, seem to say that the Governor lacks the authority to bring a suit in the name of the Government of the Virgin Islands. In disposing of this assertion, suffice to say that the Attorney General of the Virgin Islands, a member of the Governor’s cabinet, whose name is subscribed to the
At the outset it seems appropriate to set out in its entirety section 9(d) of the Revised Organic Act of the Virgin Islands.
Every bill passed by the legislature shall, before it becomes a law, be presented to the Governor. If the Governor approves the bill, he shall sign it. If the Governor disapproves the bill, he shall, except as hereinafter provided, return it, with his objections, to the legislature within ten days (Sundays excepted) after it shall have been presented to him. If the Governor does not return the bill within such period, it shall be a law in like manner as if he had signed it, unless the legislature by adjournment prevents its return, in which case it shall be a law if signed by the Governor within thirty days after it shall have been presented to him; otherwise it shall not be a law. When a bill is returned by the Governor to the legislature with his objections, the legislature shall enter his objections at large on its journal and, upon motion of a member of the legislature, proceed to reconsider the bill. If, after such reconsideration, two-thirds of all the members of the legislature pass the bill, it shall be a law. If any bill presented to the Governor contains several items of appropriations of money, he may object to one or more of such items, or any part or parts, portion or portions thereof, [while approving] the other items, parts, or portions of the bill. In such a case he shall append to the bill, at the time of signing it, a statement of the items, or parts or portions thereof, to which he objects, and the items, or parts or portions thereof, so objected to shall not take effect.
We are first confronted, then, with the proper interpretation of the last two sentences of that section. The matter is one of the first impression in this jurisdiction and we are therefore left at sea insofar as local precedent is concerned. Item veto language is not at all. uncommon as we have seen. It fairly abounds in state constitutions, as it
[t]he Governor may disapprove or reduce items or parts of items in any bill appropriating money....
Restricted to language so clear, the result reached by that court was predictable.
State ex rel. Cason v. Bond, 495 S.W.2d 385 (Mo. 1973), like In re Opinion of the Justices, construed language in a manner which, it is urged, is determinative of the issues before this court. Here too, however, the wording of the Missouri constitution deprives that case of governing influence, for the authority of the Governor was simply “to veto all or part of any item of money in an appropriation bill”.
Sego v. Kirkpatrick, 524 P.2d 975 (Sup. Ct. N.M. 1974), repeats the same situation, and is a holding which on its face appears commanding. This conclusion likewise is shaken by an examination of the New Mexico constitutional provision which provided no more than that “the Governor may ... approve or disapprove any part, or parts, item or items, of any bill appropriating money.”
In the situation in which we find ourselves, we can only seek out those cases most nearly in point because the constitutional provisions interpreted approximate our basic law, and choose, perhaps somewhat at random, from the best reasoned of the cases. However, we bear constantly in mind the territorial status of the Virgin Islands as against that of a sovereign state, never overlooking the fact that such powers, as may be found to be possessed by any of our three branches of government, must be found within the four corners of our Revised Organic Act. What the Congress has failed to give, this Court is impotent to award, and where as sometimes seems to be the case, the Congress has spoken more by oracular pronouncement than clear and adept legislative drafting, we can do no more than hazard our best guess at the true intent of the Congress.
By way of foundation for what follows we make mention of the motivating purpose which brought forth the item veto provision.
In the early struggles between the Legislature and the executive branches, particularly where there was no
Merely as a matter of convenient choice, we address first, Count I of the counterclaim interposed by Defendants.
THE LEGISLATIVE APPROPRIATION MEASURE
The Legislature on January 27, 1975, duly passed Bill No. 6762, an Act “To Fix the Regular Expenses of the Legislature of the Virgin Islands for the Fiscal Year July 1, 1975 to June 30, 1976 and for Other Purposes.” The bill consisted of a single section with five subsections at the end of which there was a total appropriation of $2,309,214. Each of the five subsections contained what Defendants characterize as “purpose language”. Subsection (b) provided in part for “. . . all necessary expenses for the operation of the legislature and its post audit division as established by Act 3661.” Subsection (e) in its entirety read “Grant to the Office of the Virgin Islands Delegate”. The Governor undertook to exercise what he views to be the item veto power given him pursuant to section 9(d), by striking from subsection (b) the words “and its post audit division as established by Act No. 3661” and by deleting the entire subsection (e). In so doing the Governor contends that he was properly vetoing part of an item of appropriation of money. Not so, say Defendants. Bill No. 6762, they go on, is but one single item of appropriation of money. Section 9(d), they continue, empowers the executive to veto an item or part of an item only if the measure contains several items of
Since the Defendants are eminently correct in saying that if there is but one item of appropriation of money in a bill, such a measure is immune to the item veto, a look at what is meant by “item” and “item of appropriation of money” is warranted.
Several of the cases cited above, as well as in the margin, have dealt with the troubling words and phrases in question. An item to the Defendants means “a distinct amount of money dedicated to a specific purpose or set of purposes.” Supporting the proposition that an item includes both a stated sum of money and a purpose is a goodly body of respectable authority. Bengzon v. Secretary of Justice, 299 U.S. 410 (1936); Caldwell v. Meskill, 320 A.2d 788 (Conn. 1973); Patterson v. Dempsey, supra; Green v. Rawls, 122 So.2d 10 (Fla. 1960); Commonwealth v. Dodson, 11 S.E.2d 120 (Va. 1940); and Black and White Taxicab Co. v. Standard Oil, 218 P. 139 (Ariz. 1923). Were we to accept Defendants’ as the hard and fast definition, the tide would certainly flow in favor of Defendants. There is, however, authority of different persuasion to whom an item need not incorporate a specific sum. See State ex rel. Brown v. Ferguson, 291 N.E.2d 434, 438 (Ohio 1972); Commonwealth v. Barnett, supra, 48 A. 976 (Pa. 1901). Speaking of this question, the court in Brown v. Ferguson observed
that those provisions in an appropriation bill which are separate and distinct from other provisions in the same bill, insofar as the*67 subject, purpose, or amount of appropriation is concerned, are items within the meaning of Section 16, Article II of the Ohio Constitution. At p. 438. (Emphasis added.)
The Virgin Islands Code commands that,
'Words and phrases shall be read with their context and shall be construed according to the common and approved usage of the English language. Technical words and phrases, and such others as may have acquired a peculiar and appropriate meaning in the law, shall be construed and understood according to their peculiar and appropriate meaning. 1 V.I.C. § 42.
Taking “the common and approved usage” from Webster’s Third New International Dictionary, Unabridged' 1966 Edition, an item is
an individual, particular or detailed, singled out from a group of related particulars or detail . . . singled out from an aggregate of individual things (as those being enumerated in a bill or inventory or similar list) . .. something singled out from a specified or implied category of things of the same kind.
On our consideration of the various definitions, we can, with consistence, make common cause with both sides. For us an item may combine purpose and specific monetary amount but in some contexts need only state subject or purpose or amount. Instructed in any of the suggested schools of thought, we are inclined to the same result with respect to the veto of Bill No. 6762.
About the limits of the power which the item veto entails, a passing word.
It is beyond question that in exercising the veto, a Chief Executive is exercising functions that strongly partake of the legislative. Especially is this true of the item veto. Fitzsimmons v. Leon, 1414 F.2d 886, 888 (1st Cir. 1944); Cason v. Bond, supra; State v. Henry, 260 N.W. 486, 492 (Wis. 1935); Fulmore v. Lane, 140 S.W. 405, 411 (Tex. 1911); Commonwealth v. Barnett, supra; State v. Holder, 23 So. 643, 645 (Miss. 1898). Of the same general
Directing attention then once again to Bill No. 6762, decision would be facile were the Court to accept the definition of an item as a distinct amount of money dedicated to a specified purpose, or set of purposes, and at the same time, go on to hold that the sum stated at the end of Bill No. 6762 is the quantitative aspect of a single item. In that setting, the Governor would have been faced with the problem of either accepting the bill as a whole or vetoing the same in its entirety. Thus, the Legislature either by inadvertent failure to allocate specific amounts to separately enumerated purposes, or by wilful design so intending, would be able to effectively nullify the item veto power of the Executive.
As we perceive the bill, not only is each section thereof a part of an item, but there are sub-items within some of those items. The lack of specific sums set off against each of the individual purposes stated in the bill in no way changes its effect or its nature as a bill authorizing the expenditure of the government moneys for specific objects, projects, or intentions. We observe, if only in passing, and whether it be significant or simply common drafting technique, the very title of this bill would seem to belie the contention that
If the Legislature, by putting purpose, subject, and amount inseparably together, and calling them an “item”, can coerce the governor to approve the whole or none, then the old evil [logrolling] is revived which [the item veto power] was intended to destroy.
Commonwealth v. Barnett, at p. 978.
The Legislature’s inclusion of the provision for its post audit division is an ideal case in point. Previously the Legislature had enacted Bill No. 6614 to provide for a post audit division and had appropriated the sum of $50,000 for that office. By message dated March 5, 1975, the Governor vetoed Bill No. 6614. It is a fair assumption that his veto was not overridden. Either no attempt was made to override, or if attempted was unsuccessful. The all too obvious plan of the Legislature in Bill No. 6762 was to slip the same office past the Governor, masquerading it under the guise of this single item appropriation bill, thus compelling the Governor to accept the unwanted and perhaps unwholesome with the beneficial and needful, or to. have none at all. It was precisely to combat this type of legislative deviousness that the item veto was born. Just as the. Governor, may not legislate creatively by selectively
We, of course, recognize the existence of language in Fulmore, supra, and other cases of that ilk, which might indicate that the result should be other than that which this Court has reached. The Texas Supreme Court opted for the consideration that, where only the single sum of money was specified but one item was listed, it had to be either approved or disapproved as a whole. Dealing with what appears to have been a lump sum appropriation with numerous “purposes”, that court expressed itself in the following language:
The appropriation for the Attorney General’s Department . . . does not itemize the appropriation or apportion the same as in other cases, but enumerates the various purposes for which the aggregate sum of $83,160 may be expended under the discretion of the Attorney General.
We are in no way persuaded to follow the reasoning of the Fulmore court. We think a comparison of the two enabling provisions are so vastly different that similar holdings need not, indeed, ought not to follow. To set out the similarity as well as the dissimilarity between the Texas item veto provision and ours, we print in the margin the pertinent provision of section 9(d) of the Revised Organic Act with underscoring and bracketed addi
The argument may be made, and not without substantial merit, that the Governor, having removed the objectionable part of these two items, should have, in some amount, reduced the overall appropriation. Well it might be that this would have been the wiser procedure for him to have followed. This court, however, sits not to judge the wisdom of either of the two other branches of this Government but rather to deal only with the legality of their actions when challenge to their doings is properly presented. Indeed, in the case of the post audit division, the Governor might have reduced the overall expenditure by $50,000, that being the sum which the Legislature had appropriated for that division in the ill-fated Bill No. 6414. Perhaps too, by an examination of previous legislative budgets, the Governor could have arrived at a
[t]he following sum, or so much, thereof, as may be necessary, fe hereby appropriated,
clearly saying to this Court that an unexpended balance at the end of the fiscal year was always a designed possibility. The failure of the Governor to reduce the lump sum then, in no way altered what seems to be a calculated overplus of funds.
The Legislature is hardly in a position to contend that any harm was done to it by the Governor’s failure to reduce the lump sum appropriation. This is not an instance in which the Governor has cut away the “purpose language”, so called, from the budget of one of his executive departments and in which it may be argued that since he has not reduced the total sum, he will have this added sum of money to be spent willy nilly as he, in his unbridled discretion, might see fit. Whatever excess of funds may result from the upholding of this item veto by the Governor will be left under the sole control of the beneficiary for which it had been intended in the first place. That beneficiary, in this case the Legislature, will, of course be expected, as we have pointed out, to act responsibly, and not prorate the overplus among its other legis
A further reason we are persuaded that the failure of the Governor to reduce the lump sum appropriation of Bill No. 6762 is not fatal stems from the fact that in several other instances in which the Governor vetoed items or sub-items but failed to reduce the lump sum appropriation to the department in question, those vetoes, as Defendants admit, were not challenged on any ground, therefore apparently conceding the validity of the practice.
Two other item vetoes of the Governor which Defendants challenge occur to us to be, in their nature, related to those vetoes of the portion of Bill No. 6762, which we have just explored. They are (1) the veto of that portion of section l.H.5. of Bill No. 6764 (Act No. 3710) which read
. . . including one additional veterinary technician, St. Thomas
and (2) the language in section 1 of Bill No. 6765 (Act No. 3711)
... including study leave for one employee----
In view of our holding with respect to Bill No. 6762, and what we deem to be the undergirding support for that holding, we reach a like conclusion with regard to the immediately above-mentioned two vetoes of the parts of Bill Nos. 6764 and 6765. We uphold both as valid executive action.
THE GENERAL APPROPRIATIONS BILL
The scene of the struggle shifts to the battleground of Bill No. 6764, which provided appropria
Dealing with the specific instances, we find that in each of the items in which the words “appropriation pursuant to section 15 of Bill No. 6784” appears, the Governor struck all but the word “appropriation”, leaving the dollar figure intact. In another instance, where the Legislature had made an appropriation, in the words “Equipment purchase fund pursuant to Bill No. 6784”, only the word “Equipment” of that language remained after the Governor’s veto. Similarly with respect to another appropriation, the Legislature had provided: “to be expended in accordance with individual operating budgets for each major activity for the islands of St. Thomas, St. John and St. Croix, as approved by the Governor and the Legislative Committee on Finance.” All of that language was vetoed out of the bill.
The above-mentioned vetoed language in each case, as the Defendants see it, constituted “conditions” or “restrictions” on the particular appropriation and they contend that as such it fell outside of the scope of the Governor’s item veto power. Plaintiffs, on the other hand, advance three contentions in support of the executive action. Firstly, they say the Governor’s acts in these regards are justified by the special authority which rests in his hands as a territorial Governor. Secondly, they urge that the excised language was readily separable, and its deletion worked no change in the meaning or purpose of the appropriation. Thirdly, say Plaintiffs, the so-called conditional language is clearly illegal, and it is well within the
Speaking first to the claimed special authority of the Governor because of our territorial status, we admit the existence of that peculiar authority. We recognize too the basic differences between the governor of a sovereign state and that of this dependency of the United States. Indeed, by our ruling on Count I of Plaintiff’s complaint special power is acknowledged. Granted that some extraordinary power does exist, we are nonetheless constrained to conclude that the conceded power has its limits, and, in the absence of the clearest of grants, should not receive this Court’s seal of approval where it is clearly inconsistent with increased autonomy given the people of the Virgin Islands in the form of their duly elected legislative representatives. We hold, therefore, that the claim of so extensive a special power must fall.
As to the argument asserting the separability of the conditional language, and that upon the elimination of that verbiage a complete, entire and workable law remains, that too cannot stand. The language, though excisable from a grammatical point of view, was, we take it, promulgated as an integral part of an appropriation, without which the clear intention of the Legislature would be violated. We conclude that such language cannot, with propriety, be struck down by the Governor at his unrestrained will.
The proposition that the Governor may strike unconstitutional or otherwise unlawful language from a legislative enactment is not entirely without decisional support. In Commonwealth v. Dodson, supra, a case in point, it was stated,
*76 [o]f course, if for any reason any item may be unconstitutional, it may be stricken out, for it would be futile to require the Keeper of the Rolls to transcribe it thereon.
Whether the proposed law is necessary or expedient, whether it is constitutional, whether it is so framed as to accomplish its intent . . . are questions transferred from the two houses to . . . [the executive], with the bill itself.
* * $
Suppose . . . that, instead of the beneficiaries being worthy public institutions, the city . . . had been directed to pay part of its appropriation to a sectarian school, in violation of the express prohibition in [the state constitution]. It would have been the Governor’s imperative duty to veto such appropriation and the legislature could not coerce him by putting him to the alternative of approving it or disapproving the entire section ....
(Emphasis added.) Id., at 978. Contra, Patterson v. Dempsey, supra, at 749. We are not inclined to follow the lead of those two cases, however. Prompted perhaps by jealous self-interest, we hold in this regard, that the intention of the Congress to give the Governor unhindered powers, executive, legislative and judicial as well, is not so unmistakeably laid bare in the language of the Organic Act as to require this Court to sustain the claim to so far-reaching and wide-ranging a power. As to all of these attempts at the item veto, we conclude that the proper course for the Governor to have followed would have been a veto of the item in toto, language and money, leaving it to the Legislature thereafter to determine what legal avenues it would follow. Failing that drastic course, the Governor might properly have allowed the provision to become law
Again, where in Bill No. 6767 at sections which read “with the approval of the Finance Committee of the Legislature” the Governor eliminated those words, we fear that he has once more exceeded his authority. We reiterate that in such instances he is forced to take his chances by either striking the entire item, or, having left it intact, to proceed to attempt expenditures without approval and await the challenge to such act, or if appropriate to seek a declaratory judgment as to the validity of the provision.
THE GENERAL LEGISLATION VETOES
Other, and we believe far more complex questions remain to be answered. The Governor deleted in some instances language that may not, by any means, be deemed items of appropriations or parts of such items. The precise language in each case is set out in the margin.
It may well be that [the constitution] was not intended to empower the Governor, in vetoing parts of an appropriation bill, to dissever or dismember a single piece of legislation which is not severable, or so as to leave merely provisions which are not a complete or fitting subject for a separate enactment by the Legislature. Although that may not have been intended, there is nothing in that provision which warrants the inference or conclusion that the Governor’s power of partial veto was not intended to be as coextensive as the Legislature’s power to join and enact separable pieces of legislation in an appropriation bill.
Id., at 492.
* * *
Therefore, in order to check or prevent the evil consequences of improper joinder, so far, at least, as appropriation bills are concerned, it may well have been deemed necessary, in the interest of good government, to confer on the Governor, as was done by the amendment, . . . the right to pass independently on every separable piece of legislation in an appropriation bill.
*80 Manifestly, if the parts vetoed had been approved, but thereafter held unconstitutional, there would have been no difficulty in considering them entirely eliminated as independent and separable provisions of the Act, and in upholding the remainder valid, as a complete law capable of being carried into effect, independently of the eliminated parts.
Id., at 493.
See also Dickenson v. Saiz, 308 P.2d 205 (N.M. 1957), where language also more properly relegated to general legislation was appended to appropriations, and the striking thereof was upheld as a valid exercise of the item veto power.
As to the instances in which we have held that the Governor exceeded his authority in the attempted item veto exercises, it is clear that the purported veto being a nullity, the parts or items said to have been vetoed became law. So vast is the authority for this that we feel no discussion is warranted. See, e.g., Sego v. Kirkpatrick, supra, at 987; Turner v. Iowa State Highway Commission, supra, at 151; Commonwealth v. Dodson, supra, at 134; In re Opinion of Justices, supra, at 791; Fulmore v. Lane, supra, at 412; State v. Holder, supra, at 645; State ex rel. Cason v. Bond, supra, at 393.
THE IMPOUNDMENT DISPUTE
In Count II of their counterclaim, Defendants accuse the Chief Executive of unlawful impoundment of funds appropriated for the operation of the Legislature. This harks back to the Governor’s item veto of certain language in Bill No. 6762 previously discussed. The spectre of impoundment, such as it is, stems from the portion of a message dated July 8, 1975, from the Governor to the Legislature in which he said •
*81 while the total appropriation of $2,309,214 must be approved as a lump sum to avoid hampering the entire legislation process, it should be clearly understood that no funding will be provided for the disapproved portions of this appropriation bill.
Rather summarily we dispose of this cause of action. Certainly it cannot he contended that funds appropriated for the Legislature enjoy so sacrosanct a status that they may not be reached by the proper exercise of the Governor’s item veto power. Notwithstanding whatever may have been said in Dixon v. Shaw, 253 P. 500, 50 A.L.R. 1237 (Okla. 1927), Opinion of Justices, 96 A.2d 749 (Maine 1953) and State ex rel. Griffith v. Turner, 233 P. 510 (Kan. 1925), we hold as devoid of merit, the contention advanced by the Defendants that language other than that which we have held to have been properly vetoed by the Governor would authorize it to expend moneys from the total appropriation for its post audit division or on behalf of its Virgin Islands Delegate to the Congress. We do not suggest that the Governor may capriciously veto legislative appropriations. This we think the Governor himself recognizes, as is borne out by his solicitude for the Legislature in not desiring to, in any way, hamper the operation of that branch by reducing the total amount of its appropriation. In any event, impoundment of funds necessarily implies the existence of a lawful appropriation, that such funds are available, and that the Chief Executive has refused to release or expend them. Our holding that the Governor’s item veto was valid deprives the impoundment claim of its underpinning and consequently compels dismissal of Count II of the counterclaim.
What remains of the issues between these parties are those which surface in Count II of Plaintiffs’ complaint.
SEPARATION OF POWERS
On June 27, 1975, the Legislature passed Bill No. 6784
Section 2 directs that within 15 days of the Governor’s approval of Bill No. 6764, he submit details of proposed expenditures for the Department of Public Works, Education and Health to the Finance Committee of the Legislature for its “consideration”. The bill then gives the Finance Committee 15 days after receipt of the proposed expenditures “to either approve said expenditures as proposed or to submit a report and accompanying legislation for approval by the Legislature which would amend said proposed expenditures.” The failure of the Finance Committee to act within the 15-day period would cause the proposed expenditures to “be considered as approved by said Finance Committee”. According to the section there were to be no restrictions on expenditures by the affected departments during the 15-day period in which the Finance Committee had the proposed expenditures under consideration.
Section 4 created an “Emergency Expenditure Fund” within the office of the Governor to be “utilized for meeting unforeseen financial emergencies of the Government.” However, the money appropriated into that fund could not be spent “without the prior approval of the Governor and the Finance Committee of the Legislature.”
Section 10 established another fund and in the process amended Chapter 111 of Title 33 of the Virgin Islands
In essence, the contention of Plaintiffs is that insofar as the sections detailed above are concerned, Bill No. 6784 is in direct violation of the doctrine of separation of powers. Defendants it seems would make light of that doctrine, according it only passing significance, but that it is firmly rooted in the system of government which the Congress has provided for this territory is made clear by Municipality of St. Thomas & St. John v. Gordon, 78 F.Supp. 440 (D.C.V.I. 1948). That Virgin Islands decision, following Springer v. Philippines, 227 U.S. 189 (1928), by two decades has, we believe, firmly laid that matter to rest.
It may be stated, then, as a general rule inherent in the American constitutional system that unless otherwise expressly provided or incidental to the powers conferred, the Legislature cannot exercise executive or judicial power.
Springer, supra, at p. 201.
It follows, then, that unless we find explicit authorization by the Congress within the corners of the Revised Organic Act or discern, arguably, that such power falls within the scope of, and is incidental to the legislative function, the scheme devised under sections 2, 4 and 10 of Act No. 3718 cannot be permitted to stand. Finding no such authorization, explicit or otherwise, we hold that the three sections of the Act illicitly trespass on the executive preserve.
For us the lead to follow is that set by the court in State ex rel. Myer v. State Board of Equalization and Assessment, 176 N.W.2d 920 (Neb. 1970).
. . . the control of the purse strings of government is a legislative function. Indeed, it is a supreme legislative prerogative, indispensable to the independence and integrity of the Legislature, and not to be surrendered or abridged save by the Constitution itself.
Id., at p. 925. Going on, however, the court took cognizance of the fact that there are limits to that wide expanse of legislative authority.
The Legislature has plenary or absolute power over appropriations. It may make them upon such conditions and with such restrictions as it pleases within constitutional limits. There is one thing, however, which it cannot do, and this is inherent in Article II, section 1, Constitution of Nebraska [embracing the doctrine of separation of powers]. It cannot through the power of appropriation exercise or invade the constitutional rights and powers of the executive branch of the government. It cannot administer the appropriation once it has been made. When the appropriation is*85 made, its work is complete and the executive authority takes over to administer the appropriation to accomplish this purpose, subject to the limitations imposed.
Id., atp. 926.
In the case before us, the fact that approval of the Finance Committee is either expressly ordained, or by implication calculated, suffices to command the declaration of a violation of our basic law for which the Plaintiffs contend. As the Springer court put it:
Legislative power, as distinguished from executive power, is the authority to make laws, but not to enforce them or appoint the agents charged with the duty of such enforcement. The latter are executive functions.
* * *
... the legislature cannot engraft executive duties upon a legislative office, since that would be to usurp the power of appointment by indirection....
* * *
... it is clear that they [duties which the legislature had attempted to devolve upon certain of its members] are not legislative in character, and still more clear that they are not judicial. The fact that they do not fall within the authority of either of these two constitutes logical ground for concluding that they do fall within that of the remaining one of the three among which the powers of government are divided.
This Court cannot do other than stand in the way of these attempted intrusions into the executive province.
The court wishes to acknowledge the helpful participation of amicus curiae, The League of Women Voters, and its counsel in briefing the second cause of action of the complaint. Our grateful thanks go out to amicus for its invaluable aid. We heartily congratulate, and highly commend The League for its civic-mindedness, and express the fervent hope that the capital example it has set, the first in my experience as practitioner and judge, will prompt other organizations to involve themselves before the Court in matters of pressing public concern.
See for example Green v. Rawls (Fla.); Commonwealth, v. Barnett (Pa.); Fairfield v. Foster (Ariz.); Fulmore v. Lane (Tex.); State v. Henry (Wis.); Sego v. Kirkpatrick (N.M.); In re Opinion of the Justices (Mass.), cited infra, to mention but a representative few.
Also to be contrasted with the Virgin Islands section 9(d) are: Turner v. State H’way Commission, 186 N.W.2d 141 (Iowa 1971); Patterson v. Dempsey, 207 A.2d 739 (Conn. 1965); Brown v. Ferguson, 291 N.E.2d 434 (Ohio 1972), by no means an exhaustive list.
For a more explicit and learned treatment of the subject see, Patterson v. Dempsey, supra, footnote 2, at p. 746; Commonwealth v. Barnett, 48 A. 976, 977 (Pa. 1901); State v. Holder, 23 S. 643, 644 (Miss. 1898); Caldwell v. Meskill, 320 A.2d 788, 792 (Conn. 1973).
Whereas the 1936 Act provided for a legislative override of the item veto, the 1954 Act did not. Prior to the 1954 Act it seems special sessions could be called by the legislative body. With the advent of the Revised Act, only the Governor could do so. The power of the legislators to fix their expenses and reasonable compensation under the 1936 Act was taken away, and in another important instance the 1954 Act strictly limited the regular ■ session of the legislature.
If any bill presented to the Governor contains several items of appropriations of money, he may object to one or more of such items, or any part or parts, portion or portions thereof, while approving [and approve] the other items, part, or portions of the bill. (The words emphasized are as they are contained in the Texas Constitution. The words in brackets are substituted in the Texas Constitution for the two words “while approving” which immediately precede the bracketed words.)
Our holding that the Governor has properly exercised his item veto with respect to the words “and its post audit division” and “Grant to the Virgin Islands Delegate” given its proper effect, will bar the Legislature from emasculating the item veto provision which result one is bound to conclude the Congress deliberately intended by the Revised Organic Act. We venture the opinion that, at the same time, it may well deprive the Congress of what it might view as cause for visiting this Government, through our basic law, with an even more iniquitous imposition, something that body has, in times past, at least, been prone to do.
See for example Bill No. 6764 in section (C) where an item for the Department of Education with an appropriation of $39,777 was item vetoed yet the overall appropriation for that department was maintained. The same holds in the following section where $24,900 was item vetoed from the Department of Public Works without a reduction of the lump sum. In this regard, see generally the Governor’s veto message on Bill No. 6764 dated July 7, 1975, which was attached to the Plaintiff’s complaint.
Section P.7. The sums transferred to the Department of Property and Procurement from various departments for operation of a central transportation service and deposited in the Transportation Fund herein shall be reallocated by the Governor to enable said departments to retain their own personnel and to make appropriate expenditures at a rate approximating the level of expenditures for such purposes made during the preceding fiscal year.
Section 2(b). The Governor is hereby authorized and requested to reopen negotiations with recognized government employee organizations with whom the Government of the Virgin Islands has entered into contracts of employment affecting salaries or compensation to be paid to member employees during fiscal year 1976, in order that certain amendments to those contracts might be effected in view of the current fiscal emergency.
Section 3. Notwithstanding any other provision of law to the contrary, the maximum amount which may be refunded or credited from the Reserve for Internal Revenue Tax refunds established pursuant to Title 33, Section 1102(b), Virgin Islands Code, for fiscal year July 1, 1975 to June 30, 1976, shall be $8,500,000.
Section 4. The estimated general fund revenues and contributions to be realized during the fiscal year July 1, 1975 to June 30, 1976 and to be drawn upon in funding Appropriation Bill Nos. 6762 (Legislature), 6763 (Interest Revenue Fund), 6764 (Executive Branch), 6765 (Municipal Court), and 6766 (College of the Virgin Islands), are as contained in Appendix I which is attached hereto and by this reference made a part of this Act.
The Legislature of the Virgin Islands seems to enjoy company of the highest standing in its attempt to insert a legislative Anger in the executive pie. Recently the Supreme Court of the United States has had occasion to turn hack an attempt at the same venture by The Congress, albeit in a different context. See Buckley, et al. v. Valeo, et al.,_ — U.S. — (Decided January 30, 1976). Lamentably, there seem to be additional, and equally futile attempts in the offing, at home and abroad.