*1 ex rel. William T. et al. Brotherton, Jr., etc., C. A. Blankenship, Clerk, etc.
(No. 13514) January 30, Decided 1975. *4 Harvey petitioners. McCarty, M. for M. Robert
Jack Chauncey Browning, Attorney General, Henry H. C. Bias, Jr., Deputy Attorney General, respondent.
Spilman, Thomas, Klostermeyer, Battle & W. Victor Moore, Jr., Ross for intervenor Arch A. W. Va.
Haden, Chief Justice: 4, 1974, relators, September
On the the Honorable Wil- Brotherton, Jr., liam T. as a member and President Virginia, the Senate of West and the Honorable Lewis N. McManus, Speaker as a member and of the House of Delegates Virginia, of West both and as citizens and State, taxpayers sought of the original to invoke the jurisdiction through of this the Court of a issuance writ require respondent, the Blankenship, C. A. Clerk of Delegates and, such, the keeper House of the rolls and the custodian and Acts Joint Resolutions Legislature, publish of the “to the true Act such manner purposes as to include the and full lawful appropriated and without the void deletions, attempted reductions and vetoes the Gov- giving ernor and without effect unlawful and un- constitutional figures additions and changes amendments attempted by the copies Governor and to furnish Petitioners true published....” Act as so
Thereafter, September 9, 1974, on acting this Court upon allegations petition, issued a rule re- September 24, turnable 1974. The Arch Honorable A. Moore, Jr., Virginia then, Governor of the State of West September on filed a praying motion that he be granted leave to intervene proceeding party as a respondent. granted by That motion was this Court. On September 25, 1974, upon petition exhibits, respondent, demurrer the intervenor’s demurrer separate answer with opposition exhibits filed in petition, joint stipulation parties,
395 respective parties, and arguments briefs and oral Seibert, George H. of Honorable the brief amicus curiae Minority Leader the House of as member of Jr. and taxpay- Delegates Virginia, a citizen and of West and as relators, State, upon reply brief the of er of the and for this was decision. case submitted 1974, Court, by order, granted 6, this On November instances, such relief prayed relief for in certain denied give instances, the writ in and molded others other questions presented. required appropriate relief 5, respondent, 1974, and the relators On December Clerk, aggrieved deeming Blankenship, A. themselves C. rulings previous in the order of this contained rehearing, Court, separate petitions assigned filed for requested order, purported the face said and errors on of in the former order be set the matters contained rehearing, a full this correct down for Court prayed order, originally grant the relief former petitioners. petition of the This Court denied for in the rehearing separate petitions for on December the two 13, 1974. purpose stating the opinion is filed now for
This
upon
for, clarifying,
elaborating
the hold-
reasons
6, 1974.
ings
order of November
in the
Court,
former cases decided
As
true
two
was
Blankenship,
253,
Browning
Va.
v.
154 W.
ex rel.
State
(1970)
ex
Brotherton
172
rel.
S.E.2d
(1973),
_ W. Va _,
Blankenship,
The referred to for Senate No. Substitute Committee Budget Bill, providing budget herein for the Virginia year State West for the fiscal 1974-1975. presented Bill was then to the Governor provisions his consideration in accordance with the Virginia Constitution, VI, the West Article Section D(ll). July 15, 1974, Subsection signed On *6 Budget approved the Bill as with reductions and dele- tions and Message returned it with Executive No. 6 to Legislature the by for further body consideration upon its return from Both Legisla- recess. houses of the gave ture then consideration to the veto of actions the regard Budget Bill, Governor in in doing but so to failed muster required the two-thirds vote of both of houses the to override the veto actions of relators, being the Governor. The not par- satisfied with Budget by ticular Bill modifications made the Governor through actions, his believing veto and those vetoes to unconstitutional, be unlawful and instituted this action praying for a writ compel of mandamus the Clerk to publish Budget the Act unaffected such veto actions.
Although
authority
the
of the relators
to maintain
proceeding
this
capacities
in the official
as President
of
Speaker
the Senate and
the
Delegates,
House of
re-
spectively,
appear,
they
does not
nevertheless
demon-
proper
standing
strate
taxpayers
citizens
and
proceeding
validity
maintain
to test
the
of the veto
affecting
public
See,
actions
the
revenue.
Delardas
_
County
Monongalia County,
Court
_,
W. Va.
(1972).
Due to in the manner which the Governor altered the Budget Bill passage after Legislature, the and challenges due the relators, made following presented basic are issues proceed- for resolution in this ing:
I. Does the Governor have the constitutional author- ity Budget under the Modern Amendment at the veto stage any part to veto of the accounts of operation Virginia of that appropriated for of West Budget Bill? government as contained branch the constitutional author- have II. Does veto ity Budget Amendment at under the Modern Budget language pur- stage to delete from condition, finding, and nevertheless pose, direction purposes moneys appropriat- expenditure retain Budget Bill? ed in certain accounts power Does have the constitutional III. the Governor stage at Amendment the veto under Modern purpose itemization to delete thereto, in an relating contained account amounts lump lan- Budget Bill thereafter reinsert sums and subject relating guage purpose thereto such account? author- Does have the constitutional
IV. ity reduce under the Modern Amendment money in Bill and accounts amount modify account of new thereafter such insertion *7 parts and language, of items new amounts items or therein? substantially stated are in a form
The issues thus relators, opinion in this we shall presented the and a state- to treat and resolve those issues with endeavor appli- giving facts rise to each issue and the law ment of seriatim. cable thereto
I Budget in the Bill are and 103 Accounts Nos. operation for appropriations providing the account the separate Legislature, as a branch of Virginia the West year Incident government, fiscal 1974-1975. for Budget Budget Document and the preparation accounts, companion like accounts for Bill, these those government, prepared are and judicial branch the Budget inclusion in the to the Governor for submitted way. special particular in a and Bill preserve integrity independence In order to the and separate government the branches in the context of budget-making process, people the the ratification D(9) provided Budget Subsection of the Modern plan Amendment gov- to insure that each branch of rightful ernment prerogatives would exercise its and no more, though even the Governor was authorized and charged responsibility with the prepara- the' overall Budget tion and submission the and Doc- provides: ument. That section purpose up making budget, “For the the governor power, shall have and it be shall his duty, require proper officials, from the state including departments, herein all executive all and officers, bureaus, executive administrative boards, agencies expending commissions and supervising of, expenditure and all institu- applying moneys tions for appropria- state and tions, such itemized estimates and other infor- mation, such form and at such times as he shall legislative direct. The estimates de- for partment, presiding each certified officer of house, judiciary, provided by law, and for auditor, shall be transmitted certified governor in such at such times as he form direct, shall be budget.” shall included in the (Emphasis supplied.) above,
Pursuant Legislature, through officers, appropriate prepared expenditures its estimated year for the 1974-1975 fiscal and transmitted them to inclusion Document turn, Governor, pursuant Bill. In di- D(10) B(3) rections of Subsections of the Modern Budget Amendment, expendi- included the estimated *8 legislative for department tures the government Budget provides, the Bill. That latter section inter alia: budget
“Each shall embrace itemized esti- appropriations, mate of the in such form and de- governor tail may as the shall determine or as be (a) prescribed legislature law: For the as cer- governor tified to the in the manner hereinafter provided; ...
And, with the proposed appropriations other for the ex- department judicial ecutive department and the gov- ernment, the budget transmitted as direct- following language B(4) ed of Subsection of the Modern Amendment: governor
“The shall presiding deliver to the officer of each budget house the and a bill all for proposed appropriations budget clearly of the classified, itemized and in such form and detail governor as the may shall determine or as be prescribed by law; presiding and the officer of promptly each house shall cause the bill to be therein, introduced and such shall be bill known ” ‘Budget as the Bill.’ After prepared, had been transmitted proposed and introduced a appropriation measure with directives, accordance these Leg- constitutional purported islature 101, 102, amend its Accounts Nos. by expanding adding, and 103 respects, in several language new Bill as introduced. Two of subject issue; those modifications are the of the first corresponding regard and the Governor’s action With predicate thereto of this issue. 101, appropriation
In Account No. account for the operation Senate, appro- in Account No. priation operation account for the of the House of Dele- gates, appropriation Account No. account funding joint expenses of the Senate and operating annually the House unified branch government, inserted additional would have, upon corresponding conditions, required certain that “the state auditor shall transfer amounts between protect items of the total in order efficiency increase of service.” The effect of the quoted language appropriate was to authorize ad- *9 accomplish Legislature officers of
ministrative expenditure appropriations item transfers” “line year without further amend- during the purposes fiscal designat- regard to Budget and without Bill ment of within the provided for appropriation ed classifications services, expenses, personal current Budget as Bill such equipment, etc. Ac- that, further amended
Beyond following appro- language adding the count No. 103 priation: normally allocated to those funds
“In addition Line 3 Legislative Auditor’s office from hereby appropriated additional above, there is making $250,000 purpose of a for the amount of analysis and state examination continuous expenditures, depart- and budget, revenue during programs and between sessions mental Legislature.” quotation, a line above,” refers within “Line 3 on Gov- as follows: “Joint Committee $1,585,513.” ernment Finance — containing this and passage of the Upon Governor, through the language, exercise new other veto, language permitting line partial excised a and, 101, 102, Nos. item transfers Accounts seemingly appro- well, deleted or struck $250,000 a priating to fund continuous an additional analysis by Legislative Auditor. budgetary the office of D(ll), exercising when veto required Subsection As accompanied partial veto of authority, his objections or a reasons with statement these accounts with the and transmitted same ex his veto actions. See State Budget Bill as modified Blankenship, supra. Browning rel. authority as that of- chief executive derives such Bill, Legisla- passed
fice has to veto
D(ll) of
ture,
provisions of Subsection
the Mod-
from the
state,
ern
which
Amendment
inter alia: “The
governor may
bill,
may
veto the
or
disapprove
he
or
parts
reduce items
items contained therein.” This
authority,
broadly
veto
although
expansively
grant
ed,
limits,
is not without
however. Relevant
to the issue
discussion,
under
this Court held in
ex rel.
Brother
Blankenship,
*10
_ W. Va. _,
(1973)
ton v.
“The authority Governor does not the provisions under the of Article Section 51 of Virginia the West Constitution disapprove to parts reduce items or of items contained in the Bill, Budget by as Legislature, enacted the judiciary department.” which relate to the Sylla- 5., point bus id.
Relying upon holding previous that in the Brotherton case, logically the relators contend that possess authority also does not provisions under VI, Virginia Article Section 51 of the West Constitution disapprove parts or reduce items or of items con- Budget Bill, by tained in the Legislature, as enacted legislative department. which relate to the case, In judicial department the 1973 Brotherton prepared budget proposal its it submitted integral parts Governor for introduction as of the Bud- get There, however, Document and the Bill. expenditures Governor reduced the estimates certi- by judiciary fied to his transmitting office before Legislature purpose same to the for the of introduction a Bill. His action in doing so was improper and the of its own motion restored by judiciary. the estimates submitted See Va.W. Const, D(10). VI, § veto, art. The Governor’s later again which in the judiciary same manner reduced the need, by estimates its financial was then struck down hand, present case, this Court. On other purported budget by to amend adding its additional thereto after introduction Legisla- original form which estimates prepared certified its had ture itself appear, in facts this a difference As will the Governor. calling for distinction. provided for in system balances” of “checks and and secured federal constitutions state and
American “Separation of Powers” government each branch courts, compels theoretically practically clauses any one upon, actions of to thwart unlawful when called impair the constitutional government which branch of coequal This responsibilities branch. and functions it was constitution- persuaded this Court rationale necessary expansive arro- ally to delimit the Governor’s colorably power him in rela- gation veto exercised budget. Unquestionably, judiciary’s own tion to the to invalidate principle cause this Court would also Legislature’s veto the esti- attempt opera- budgetary requirements internal mated body for inclu- prepared tions and submitted instance, V, Budget Bill. In either Article sion in the *11 VI, 1, provisions Article and the of Sec- Section several Constitution, relating preparation tion 51 of Budget Budget and Document and submission preserve, Bill, compel introduce the Governor budgetary proposals other the submitted of leave intact coequal government. of units reject
Consequently, the intervenor’s contentions we only Separation re- that of Powers doctrine acts to budgetary power applies veto as it strict the Governor’s Leg- government, that judicial branch of to the protect to otherwise own bud- islature is well-armed get proposals. latter is irrelevant in This contention constitutional context. supports legality intervenor, however, of his
The
101, 102, and 103
sever-
veto
on Accounts Nos.
on
actions
bases,
assumptively
appli-
not controlled
al other
Separation
of Powers
For exam-
cation
doctrine.
of
legal
ple,
that he had a sound
contends
support
legislative
basis to
his veto of the
accounts be-
merely striking
cause he
amendatory
was
invalid
ac-
tions
which would have
in
resulted
the inclusion of
budget
ger-
matters within a
bill not
budgetary
process
mane to the
specifically
and not
set
forth
budget
such,
in the title
bill. As
the Gover-
nor contends
that
these
Budget
additions
to the
were
VI,
invalid and unconstitutional
under Article
Sec-
position
tion 30 of the Constitution. This
in
untenable
previously
that
this Court has
held that
are
measures
not limited
this section of the Constitu-
tion. The
Key
Bond,
decision of State ex rel.
94 W. Va.
(1923)
255,
implicitly recognizes
404 statutory any constitutional
year, we are unaware prevent Legislature from which would inhibition its mo- transferring appropriations its on own line authority legislative prerogative, pure is tion. Such by legislation formally or authorized exercised whether joint legislative adoption or individual rule bodies. merit, foregoing without
Although the contentions are intervenor, nevertheless, successfully asserts a fur- partial legislative ac- veto of the ther reason for his necessary the issue it is discuss counts. To resolve VI, extensively provisions Article Sec- somewhat tion 51 of Constitution. authority ap- Legislature to enact an
The derives solely through grant power propriation measure pow- That given in the Amendment. Modern apparent appropriate has limitations is from the er to opening sentence of the Amendment. legislature ap- provides: shall the Amendment “The not any money treasury except propriate out of the in accor- provisions language, of this section.” This dance with provision predecessor to that found identical Amendment, has construed the Modern been Sims, rel. ex Trent v. 138 W. Va. this Court (1953). Syllabus decision, point that In 9. of S.E.2d provision precisely held this meant what Court it said: not’, as used in the first
“The words ‘shall VI, Virgin- paragraph Article West of Section Constitution, given general their ia should be prohibiting ordinary meaning, read any money Legislature appropriating from treasury, except with accordance out Id. provisions of Section 51.” B(5) Budget Bill, respects As Subsection permits to amend the Bill Amendment But, prepared and introduced Governor. authority “The restricted: shall not *13 budget amend may bill so as to create a but deficit by increasing any amend the bill decreasing or item Const, VI, 51,B(5). § therein: ...W. Va. art. In the first case, Caplan, speaking Brotherton majority Justice for a Court, provision thusly: this construed 51(5) “Article our Section Constitution permits Legislature by to ‘amend the bill increasing decreasing any therein’, or item so if it had increased or decreased the amount an item such as ‘Other Personal Services’ its action However, would be line with that allowed. Legislature when the expand to undertook on budget specifying positions Governor’s un- der desig- ‘Other Personal Services’ and therefor, began nated usurp salaries it to power executive reserved Constitution government. branch The Constitution clearly contemplates an budget executive ....” Legislature
“... [T]he can then exercise its judgment figures as to whether the executive increased, should approved be or decreased submitted. Thus the is afforded the prerogative contemplated by the Constitution.” (Emphasis supplied.), Supra, at 434-35 of 207 Southeastern Second. view, Court,
In our preserve in order to for the department authority executive prepare its and sub- budget thereby amit insure initial consideration proposals priorities, relatively fiscal intact or without Legislature, substantial modification thereby clearly Legislature’s held authority increase or decrease items was limited to increase monetary originally decrease of amounts submitted by the Governor. hand,
On the prohibited other is not originating appropriation from an creating measure clearly item or of an It item. authorized frame pursuant priorities, Subsec- its own fiscal and enact C(7) sup- Amendment, through the vehicle of tion provision states: plementary bills. That appropria- shall consider other “Neither house finally budget acted until bill has been tions houses, appropri- other upon and no such both except with valid in accordance ations shall be (a) Every appro- following: provisions such *14 separate embodied in a bill priation shall be work, object purpose single to some limited supplemen- therein a therein stated and called (b) bill; supplementary tary appropriation each provide the revenue nec- appropriation bill shall thereby essary appropriation made pay the indirect, collected tax, to be laid and a direct or appears in the bill unless it be directed as shall budget there revenue is sufficient from such available.” concept
Nevertheless, preservation of an ex- B(5) C(7), budget, applying Subsections ecutive that, together, parts Amendment we hold other or decrease excepting amendments to increase item, required Legislature is otherwise of an amount upon take some form of action first consider and commencing of its own Budget Bill the exercise before position appropriation prerogatives. This is not novel. C(7), predecessor provision to Construing Subsection this Court held: consider oth-
“The words ‘Neither House shall budget has been appropriations until bill er Houses,’ finally upon contained acted both VI, C, Article West Vir- Sub-Section Section Constitution, mean that the Houses of the ginia appropria- other Legislature shall not consider finally budget bill has been acted tions until prohibits Houses, upon and this clause both considering appropri- other from budget bill has been until a constitutional ations 10., opon.” Syllabus point ex finally State acted Sims, supra. rel. Trent v. freely acknowledge potential
While we for the cre- “legislative” ation budget, opposed of to an “execu- budget, through tive” sup- enactment of a series plementary appropriation bills, the fact remains questioned amendments to Accounts Nos. 101, 102, 103, adding language subject, purpose or condition, were unathorized additions to the Bill.
Accordingly, we hold that power, Governor has the pursuant plain provisions D(ll), Subsection supra, disapprove and strike unauthorized insertions added to the preparation Bill after its and intro- duction as an proposal. Cf., ex rel. Blankenship, supra, Brotherton at the South- i.e., Reporter, eastern discussion therein contained on Legislature’s attempt colorable to amend inser- tion, which was disapproved. also noted,
As purported to amend Account by appropriating No. 103 an “additional amount $250,000 purpose making a continuous exami- *15 analysis budget, nation and of the state etc.” authority has the to increase amounts of long items so as no deficit is created and thus the addi- tional stands, although language of Const, subject purpose or V, falls 1,§ veto. W. Va. art. B(5). VI, 51, § petition art. rehearing, In the relators quarrelled with the correctness order Court’s modifying Legislative recognized Account No. 103 it as Legislature’s right appropriation, increase al- leging $250,000 that our order budget added to the total posture. cast it into a deficit Such was not our intention; merely the intention was to save unto the apparent ap- additional amount it had propriated account, “Joint Committee”. The there- fore, appropriated; stands in the amount appropriat- ed, See, 641, deficit no results. Account No. infra. previously
As noted with reference to “line item trans- authority, fer” we likewise believe the Governor’s veto 408 $250,000 appro- additional language “purposing”
of unavailing pre- if it done priation to been was have legislative prerogative. inherent vent exercise
II
concerning
au
the Governor’s constitutional
The issue
to delete
thority
Modern
Amendment
under
finding,
purpose,
direction
stage
at the veto
expenditure
retain for
and nevertheless
and condition
moneys
in certain accounts of
purposes
appropriated
year’s
highly
bud
reminiscent
last
Bill is
pause
reminiscent,
fact,
we
to wonder
get
So
case.
why
posited
rel.
a
time.
ex
Brother
it was
second
State
case,
relators,
Blankenship,
supra.
In that
ton v.
position
alignment
in the
occupying the
case
same
now,
explicit
language of
they
Sub
conceded
do
D(ll)
provided
the Amendment
Gov
section
disapprove
or reduce an
or
ernor could
then was the definition
item. The bone of contention
issue,
disposing
In
of that
the Court
“item”.
word
problem thusly:
quickly approached
handled the
acknowledged prerog-
“Let us now consider
‘disapprove
or reduce
of the Governor
ative
parts
in the
or
of items’ contained
items
the Governor exceed-
Act and determine whether
powers
the relator. The
his
as contended
ed
budget
em-
‘item’ wherein it relates
term
subject
purpose
and an amount.
braces
(Fla. 1960)
Rawls,
10;
v.
122 So.2d
ex
State
Green
245,
Ferguson,
v.
32
St.2d
291
rel. Brown
Ohio
(1972);
ex rel. Turner v. Iowa
434
N.E.2d
State
(Iowa 1971)
Commission,
Highway
Tremaine,
People
141;
v.
281 N.Y.
N.W.2d
(1939);
Riley,
and Reardon
10 Cal.2d
N.E.2d 891
(1938).”
supplied.)
(Emphasis
Id.
With any question thought forever to settle once and Court right an concerning either veto item the Governor’s part item, or of an part or to an reduce item or of an item. majority
Both Neely, dissent, and Justice in real- holding ized that that, this went to the heart of and any perhaps future, budget arising case in the context present provision. of the majority constitutional The be- lieved in the normal course of events the most oft-occurring type common and by of veto exercised budget on supplemental Governor a or bill presented by Legislature measure him would in- either part volve item reduction an or anof complete item, or the veto of an the veto of of an warrant, item. Because the conclusions and for the addi- judiciary tional reason that acting wishes avoid an annual referee to that which should be resolved interplay most often Legisla- active between the ture State, and chief executive of the this Court adopted simple, comprehensive but definition of the employed grant power word “item” as it is in the of veto D(ll) to the Governor found in Subsection of the Amend- Neely, ment. giv- Justice concerned with the active role people en the through Governor ratification Amendment, interpreted majority so Court, apprehensive being and at the somewhat power respect diminished of the to the Bill, expressed enactment of the himself in a very prepared ably exposited well dissent. That dissent year’s the views of the relators last case and this year’s case, served, by preciseness, sharpen import majority’s the thrust decision to ac- knowledge power protect his fis- priorities through strong pow- cal the exercise of a veto Neely upon er. Justice relied two decisions considered Court, majority strongly support- of this which were power respect ive of the budget appropriation measures, enactment greatly which minimized role the Governor or the budgetary process. chief executive in the Those deci- Opinion Justices, In sions were: Re 294 Mass. *17 410 Dodson, 176 v. (1936), and Commonwealth
2
789
N.E.2d
(1940).
cases,
other
and one
Those
11
120
Va.
S.E.2d
Bond,
here,
ex rel.
again
Cason
cited there and
(Mo. 1973),
view that
items
stand
Except foregoing limitations, for the and, this Court noted, parties, forthrightly acknowledged the Gover- right disapprove nor’s parts reduce items or *18 items otherwise contained in the Bill. In the presented now, case for decision there are several ac- solely appertaining counts department to the executive government upon which the Governor exercised power given D(ll) veto him in Subsection of the Modern accounts, Amendment. As to those the exercise power qualified Governor’s veto has not been by previously restricted the limitations noted. purposes For of illustration we hereinafter set forth reproductions facsimile questioned accounts and, enacted where stricken or modi- Governor, fied the veto actions of the Governor the manner exercised him. emerged
Account stage No. 350 from the veto in the following form: through illustrated, lined and struck
As subject would amount which containing items both County appropriations to Putnam specific made have $50,000 appropria- similar Library in the amount ap- beneficiary These specified libraries. to other tions Library be obtained from total propriations were to By $1,500,000. Matching in the amount Fund item particu- striking specified amounts dedicated thereby, effect, retained projects, lar $1,500,000 for the right expend the amount of Library Matching rather subject Fund general more legislative specific prior- the more giving than over clearly authorized Subsec- This action ities. veto D(ll) and on Amendment of the Modern tion approve it. that basis we action, appears as fol- after the veto
Account No. lows:
Thus, 485, vetoed the in No. the Governor Account “Airport Matching” appropriations specific items of “Beekley” “Keyser” in the “Logan”, amounts of $180,000, respectively, $514,000, $862,034, there- unrestricted, except expend, by right retained purposes, an of lawful within confines subject “Airport Matching” $1,500,000 with- for the Virginia. action, in the State of West This veto indistin- guishable principle in from the action veto exercised as respects Account No. is likewise authorized Sub- D(ll) section Budget and, of the Modern Amendment on basis, approved by this Court. In Section 5 of Title II Appropria- Bill — Fund, tions From Sharing Revenue following Trust portion of appears: the account with veto action
In appropriations IV, of Item Valley, Canaan in $715,000, the amount of Park, and Twin Falls State $300,000, the amount language purpose or condi- tion, directing money appropriated how for these spent, facilities should be was excised the Governor. clearly This veto action also authorized Subsection D(ll) of the Modern language Amendment purpose part item, or condition is a of an within the adopted in definition the first Brotherton case. Two other veto actions of the Governor are also con- principle allowing trolled disap- prove reduce an or a an item. Because respect the method of veto to Item No. and be- placement cause of the of the vetoed in the respects the item found “Sec. 3. Classi- Appropriations, etc.”, explanation fication of of these requires particular veto actions a somewhat more treat- previously approved. ment than those *20 In Account No. created and Budget Bill, following added to the appropriation subsequent appears: veto action purported all In this account the Governor to strike purpose which have language of would condition $4,500,000 op- the amount made Governor, only through highway his com- if the erable give missioner, apply to em- these funds each were employed Department Highways as of a ployee of the percent per annum certain date a seven one-half year If compensation for fiscal 1974-1975. increase permitted partially action had been stand as this veto fol- disapproved it would have read as Highways Department No. “125 —State lows: —Acct. $4,500,000.” Comparatively, Account No. 641 The sum of IV, opinion under also treated in this Part infra operations for provides appropriations of the State $386,100,000. Department Highways amount of impossible make it Inasmuch the Governor’s actions what this Court or for determine for subject purpose classification is intend- classification appropriation, comparing it to when ed this modified larger appropriation Department much 670, majority Highways of this found in Account No. authority has the holds that while Court purpose or condition from an delete item, thereby disapproval accomplish a of an permit may will him to not in a manner which he do so appropriated amount without ascertainable retain an *21 subject purpose. As noted Justice or classification decision: Caplan in the first Brotherton budget must be in that “Reason dictates Legisla- inform the form and detail to sufficient expenditures are ade- proposed ture whether of that need- quate purpose or in excess for their Reporter. ed,” Supra, 435 of the Southeastern at Likewise, items altered would dictate reason identity subject pur- or sufficient veto should retain intelligent by the permit review pose and amount to veto actions of the Gov- Legislature when it reconsiders partial attempted we Accordingly, hold ernor. item, disapproval a veto of of an of the fails as retained, that, sought be and amount but when the appear, the veto must be subject purpose does not or item, as disapproval of the whole autho- as a construed D(ll) of the Modern rized under Subsection Amendment. opinion ap- I, supra, holding Part of this also
The this item veto. “The plies support and to validate pursuant plain provi- power, has the D(ll), supra, disapprove and sions Subsection Budget Bill insertions added strike unauthorized appropria- as an preparation and introduction after I, supra. proposal.” Part tion ruling foregoing
Parenthetically, we note that by any party proceeding to this construed should not be ability to condi- upon the passing personal the effectiveness tion by the expenditures in a manner determined services question the Executive. That rather than not be re- presented for resolution and need not was holding goes no foregoing opinion. solved upon constitutional basis rule than to further validity veto action. the Governor’s I Bill —General Title 3 of
In Section gener- in seven Provisions, appropriations are classified categories distinguished al defined from one other. Services”, That section defines “Personal “Cur- Expenses”, “Repairs rent Alterations”, “Equip- ment”, “Lands”, “Buildings”, “Appropriations Oth- Although normally erwise Classified”. one would not regard “place” said Section specific 3 as a appro- where priations found, are to be such was the occurrence this case and resulted in a contested veto action following Governor. The ap- illustrates propriation and the Governor’s veto thereon:
As with Account No. which related to a seven and percent salary department one-half increase for high- way employees, language inserted into providing section appropriation for an sufficient a percent salary include seven and one-half increase year fiscal 1974-1975 for employees. all other State language Governor purpose deleted this appropri- regard ation. The particular subissue to this veto has, action whether by inserting ap- propriation language into a classification or definition Budget, thereby section of protected it from a veto by D(ll) authorized Subsection Budget the Modern previous holding, Amendment. Our authorizing the Gov- ernor to strike unauthorized insertions into the action, veto question would in itself answer however, addition, it negative. In seems clear in the may language be excised from the the stricken D(ll) authority of the general Subsection under artfully disguised general rather Amendment. While section in the classification language within a definition Budget, of the stricken of the the effect clearly it of an “item” places within the ambit meaning Amendment. within the alignment corollary logical to this with a Court’s As “item”, definition of the term adoption Rawls, applied in the case of Green determined reasoning expressed adopt in the supra, we likewise assigned that case: fourth headnote legislature appro- states in an “Whenever specified money raised priation bill that a sum pur- spent specified a be taxation shall alone, men- pose, and that while other sums likewise, are to be used in the bill tioned bill, specified expenditure is an ‘item’ within may governor af- without vetoed be any con- fecting other items Id., § art. 18.” at therein. P.S.A.Const. tained 10. nearly point definition the word is the
Even more *23 157, Foster, 146, Ariz. adopted in v. 25 “item” Fairfield Rawls, 319, (1923), quoted v. and in 214 P. 323 Green supra:
“* * *
legislature
goes to the
[W]henever
appropriating money
saying
any bill
of
in
extent
money
specified
of
raised
taxation
that a
sum
purpose,
specified
a
and that
spent
be
shall
alone,
mentioned in
bill are
while other sums
otherwise,
language
it
matter what
used
no
be
nevertheless,
under,
is,
with-
may
disguised
it
be
Constitution,
spirit and letter of the
both
may
bill,
disapproved
and
be
an ‘item’ within
affecting
any other
without
the Governor
contained therein.”
appropriation
of
items
holding,
the cases of Wood
see also
like effect and
To
(1923)
293,
ex rel.
Without further it is believed that foregoing clearly authorities compelling logic reveal requiring provision of consideration such a an as item or part Bill, an contemplated as VI, Article Having Section of our State Constitution. perceived thus the excised be an item or Bill, of an item in the the Governor’s veto approved. action was authorized Ill concerning authority The issue the Governor’s veto strike parts enumerated items or of items therein equal and in lieu thereof to reinsert sums parts sum of the of items directly and items stricken is unequivocally controlled the decision in the first case, supra. Brotherton
In Department Account No. Highways, prepared proposal submitted his follows:
“TO BE PAID FROM STATE ROAD FUND 386,100,000” 1. Unclassified — Total. Consistent with Section 3 of the General Provisions of Bill, permitting the submission of accounts Classified, etc.”, “Otherwise specify Governor did not any detail whatsoever high- further “breakout” way department budget requirements. did, He however, request follow this with extensive statement condition, purpose authority disposition Apparently these funds. being not satisfied with aggregate request Governor’s unclassified $386,100,000, inserted extensive itemiza- tion within reproduction account. The facsimile which follows Legislature’s demonstrates insertions by way specification and also the Governor’s veto *24 action and requested reinsertion of the total amount prepared submitted Bill:
419 Highways Department 127—State o/ Acct. No. 670 TO BE PAID STATE FUND FROM ROAD Total..$386,100,000 prov- again, constitutional we see Governor’s Once B(4)] improperly invaded ince of itemization [Subsection I, by legislative For stated Part insertions. reasons Nevertheless, proper. was supra, action the Governor’s propriety veto action inde- we also consider arising upon origin question pendently language. legislative itemiza-
By veto, all the Governor struck his subjects two retained Account No. 670 but tion from Programs” Aid Legislature: “Federal approved subjects, respective Operations”. To these “General $227,000,000 and the amounts reinserted original $386,100,000, $159,100,000, totalled which type request. of veto total This the unclassified amount of ex rel. specifically approved in State was action supra: Blankenship, Brotherton Virgin- the West Article Section “Under au- Constitution, have the the Governor does ia pertain- parts thority of items to strike items department budget of the executive ing to the figure lump sum to insert a in lieu thereof parts stricken of items equal sum by the enacted Budget Bill has been after approval.” presented to him for 8., Syllabus point id. supplied.) (Emphasis *25 The Governor’s veto actions on Account No. 670 are ac- cordingly approved constitutionally as exercised. naturally disposed
We observe that this Court to- giving ward highest most careful attention and the respect policy positions to the public as relators government. officials head who another branch of We particularly upon feel this burden when called to resolve dispute legislative a constitutional between the ex- government. Nevertheless, ecutive branches of regard particular attempt re-litigate to this recently an issue by explicit ruling Court, settled of this it is difficult to be precise specific more fashioning an answer con- cerning validity particular of a veto action without specifying law to thereby an extent it loses its precedential value under the doctrine of stare decisis.
IV Unlike the issues contained in Parts II and III of this opinion, legal respect contentions raised in Governor’s veto actions on present Account No. 295 new matters. preparation
In the of and submission of Account No. prepared the Governor the account as follows: things, contemplated, among other This submission percent salary profes- increase for and one-half seven separate ap- supporting personnel sional and school pro- propriation the amounts allocable items outside personnel services and other salaries fessional computed pursuant to the “School Foundation Formula” general provided under laws of this made and agreeing Chapter Although with 18 of the Code. personnel professional and other Department granted a seven of Education should be salary increase, percent and one-half *26 disagreed achieving that with the method of increase. provide approach in- Legislature’s The was to such Accord- the School Foundation Formula. crease within law, ingly, general Enrolled Legislature enacted 19, Senate Bill No. effective Substitute For Committee budget July 1974, amended the Governor’s and also specification by striking his proposal for Account No. 295 inserting, amend- within account and items accomplish ment, specification own itemization salary percent increase within the a and one-half seven salary insertion of the Foundation Formula” “School Foundation Formula. The within School increase necessary to Legislature it increase the total also found $193,946,319 to No. 295 from appropriation for Account Legislature’s $198,000,000. version of approximately subsequent veto the Governor’s Account No. account, appear as follows: upon action that amended seen, readily reduced the Governor As can be original to the appropriated amount previously $193,946,319 had submitted figure which he reduction, making Legislature, but upon expanded Governor, well, “and added the words A.A.M.Jr.” In accompanying letter attachment. (the letter”), “accompanying Message 6No. Executive in refer- objections legislative action his stating ence Account No. and in his reasons therefor, re-specified in a different but form, substantially similar his initial submission to the account, for this as follows: questions At involving first, least two arise the valid- ity of the reducing Governor’s veto action in the total approximately for Account No. 295 from $198,000,000 originally figure to his submitted $193,946,319, secondly, validity, any, if attempted Governor’s insertion new new item incorporation amounts into the through reference Message containing to his Executive *27 objections disapproval to and for legisla- reasons of the tive amendments to Account No. 295.
In decision, supra, the first Brotherton this Court held invalid the Governor’s which, veto Account No. 295 if permitted, wholly would provided have deleted the funds operation for public system the of the school in the There, majority State. the of the Court held: provides “Inasmuch as our Constitution in Ar- ticle Section 1 Legislature thereof that the provide thorough shall a system for and efficient schools, Governor, free the action of the in eliminating entirety in provided their the funds purpose, for that constitutes an abuse of discre- permitted.” Syllabus tion will 9., not be point Blankenship, State ex rel. Brotherton Supra.
423
rely
previous
and a
deci-
upon that decision
The relators
predecessor
to
construing
the
of this Court
sion
Amendment,
prior
In
Budget
in effect
to 1968.
Modern
Sims,
Va.
Perhaps with the of that spe- Amendment of the Modern drafters any cifically proposal lan- that amendment omitted from Governor, prevent as successor guage which would Works, reducing estimates from to the Board of Public Department inci- him of Education submitted duty prepare and submit Governor’s dent to the presume Legislature. We such omis- Am.Jur.2d, intentional. Constitu- to have been sion (1964). regard, Trent decision § In this tional Law 80 or the inhibit either does not amendatory upon the action veto from the exercise of Department of Edu- budget proposals submitted Modern Bud- must now be made Reference cation. get Amendment. first deci- held in the Brotherton
Although this Court reducing abused his discretion sion *28 Department in Ac- of Education proposal for the count No. 295 to zero and his veto an was unauthorized act, authority void that case does not furnish to prevent or exercising inhibit the Governor from a veto by way reasonable of reduction an item or Viewing, do, power item. as we the Governor’s veto to be broad, expansively granted through Subsection D(ll) Budget Amendment, of the Modern we confirm his right appropriation to reduce the total in Account No. approximately $198,000,000 295 from approximately $194,000,000. reject, hand,
We out also the contention of the rela- law, general providing a tors that schools shall be manner, funded at certain level and in a certain which plain provisions with is inconsistent VI, of Article Virginia Constitution, 51 of the Section West inhibits pursuant constitutional veto actions exercised to Article VI, 51, supra. Section Serious contentions cannot be constitutions; made that statutes contrary control is obviously true. secondary
As
relating
issue
to the Governor’s
suggesting
affirmative
Department
action
moneys
its
appropriated
Education
Legisla-
expended
ture should be
accordance with
line
insertion
into his
Message
Executive
we
are
approach
confronted with a novel
in the exercise of
power.
a veto
early
As was
indicated
case
Mounts,
(1892),
W. Va.
425 ability Budget Bill its in to amend the after limited his by legislative the introduction for consideration bodies. B(4) explicitly provides, in the limitation of Subsection powers, Governor’s that: may, governor
“The with the consent of the by legislature, final thereon the before action budget legislature, supplement amend or the to oversight, provide funds contin- correct an or to legislation, gent passage pending on and in of may emergency, of deliver such an case an he presiding the supplement or to offi- amendment houses; sup- or cers of and the amendment both thereby plement a shall become bud- get to the items of the bill or bill as addition any of or a substitute for as modification may supplement the bill the amendment or of affect.” Mounts, general the of State v. su- with law
Consistent given authority by Mod- pra, not the the Governor was legislate subject or Budget to on a ern Amendment by previously approval made both not law of amount Legislature. power in- If had been such houses by tended, granted people the it the to would have been power to the explicitly. was not extended Governor Such by people. the comparison principle applied in the note for We opinion, supra, in the reaffirmance Part III decision, budget point holding syllabus 8. of the 1973 against any of the inhibition in manner violative not by in the Governor affirmative action noted, point Gov- process. syllabus As 8. authorizes ap- equal to up to and sums to reinsert amounts ernor Budget by in the Bill and propriated well, language or contemplates, the reinsertion as provided Budget in Bill submit- parts thereof however, principle, not con- does The “reinsertion” ted. Governor, lan- permit affirmative template, Budget Bill after guage amendment Legislature, approval prior without submission contemplate “appropriation”, it Gover- nor does monetary in ex- through amounts veto exercise nor previously approved by cess of that enactment Bill. Accordingly, if specification intended message thereby Account No. 295 his veto affirmatively, amend the he fails in that regard. directory only We view such Department surplusage of Education and as mere Bill. As enacted and later vetoed Governor, appropriates Account No. an unclassified $193,946,319 Department total of to the State of Educa- tion —State Aid Schools.
For opinion, the reasons stated in this the true Bud- get published Act shall be as follows:
(1) Wherein the altered, disapproved, Governor has not Act, Budget or reduced the published it shall be en- as by Legislature. acted
(2) altered, Wherein the Governor has disapproved, or Budget reduced the Act and the Governor’s veto actions by have not been overriden objected by relators, herein Act pub- shall be altered, disapproved lished by or reduced the Gover- nor.
(3) following The published accounts shall be al- approved by tered and 101, 102, Governor: Numbers 670, 350, 485, “Sec. Appropria- 3—Classification appropriation tions —an Services’, etc.”, for: ‘Personal Appropriations and “Sec. Sharing Revenue 5— from Fund, Department Trust Item of Natural Resources IV — (4)The following published account shall be or deleted opinion: as modified this Account No. 103 shall be Legislature’s restored reflect the increase addi- tion of an $250,000 unclassified to that expenditure account body according to its power inherent operations; conduct its internal lan- guage stricken the Governor’s veto shall be omitted from the account. appropria-
(5) as an shall be deleted Account No. 641 from Act. tion item respondent be praying that the writ of mandamus Act, publish compelled to the true as molded opinion, is awarded. as directed molded,
Writ, as awarded. Justice, dissenting:
Neely, majority holding respectfully from I dissent 6, 9, 11, 12, 15, syllabus points and 16 for of the Court Broth I dissented in ex rel. the same reasons that _ W. Va. _, Blankenship, 207 S.E.2d at v. erton (1973). upon p. myAs broad theoret dissent based regard appropriate divi ical considerations with upon history powers based sion of constitutional what reason, here in detail there is no need to reiterate I elsewhere. have articulated Sprouse M.
James Clay Communication, Inc.
(No. 13463) February 1975. Decided