Original proceeding in mandamus. Art. IV, § 26, Mo.Const., V.A.M.S., authorizes the Governor to veto all or part of any item of money in an appropriation bill. The basic issue for decision herein is whether that section also allows the Governor to strike words which set out the purpose of an appropriation bill without vetoing the money appropriated. We hold that it does not.
On April 26, 1973, Relators, as taxpayers and as members of the 77th General Assembly, sought from this Court a writ of mandamus directing that authorization and issuance of warrants for expenditures under specified sections of Conference Committee Substitute for House Bill No. 16 of the 77th General Assembly (C.C.S.H.B. 16) be limited to those purposes specified in said sections as enacted by the General Assembly. The requested writ also would direct that Respondents give no effect to the deletion of words from those enumerated sections as set out in the Governor’s April 3, 1973, veto message to the House of Representatives.
Relators named as Respondents the Honorable Christopher S. Bond, Governor, in his capacity of Acting Commissioner of Administration, 1 Honorable James I. Spainhower, State Treasurer, and Governor Bond in his official capacity as Governor of the State of Missouri. No relief of any kind was sought by Relators against Governor Bond as Governor. We issued our alternative writ of mandamus directed to the Acting Commissioner of Administration and the State Treasurer and they have made return thereto. In addition, the parties have filed a Stipulation of Facts which resolves the factual issues raised by the pleadings. Subsequent references to Respondents relate only to the Acting Commissioner of Administration and the State Treasurer.
Relators, as taxpayers, have standing to maintain this action. Miller v. Ste. Genevieve County,
*387 The current General Assembly adopted C.C.S.H.B. 16, an appropriation bill providing funds for emergency and supplemental purposes. It then was sent to the Governor, who, on April 3, 1973, returned the bill which he had signed after making partial vetoes of certain sections. The details of those vetoes were set out in a message to the House of Representatives which accompanied the bill when it was returned.
C.C.S.H.B. 16 consists of 49 sections numbered from 16.010 to 16.530. The Governor totally vetoed §§ 16.460 and 16.-470. No question as to that action is raised in this proceeding. In addition, the Governor struck from §§ 16.490, 16.495, 16.500, 16.515 and 16.520 certain language pertaining to the purpose of these appropriation items. He did not veto or reduce the sum appropriated in each of said sections.
The following seriatim recital shows the sections in question, the words stricken by the Governor, his explanation of the reason for each of the vetoes (from the Governor’s message of April 3, 1973, to the House of Representatives) and information from the Stipulation of Facts which discloses any payments heretofore made:
“Section 16.490. To the Bi-State Development Agency
Fee partial payment of principal and ■interest en Equipment -Trust Note
From General Revenue ... $48,520.00”
“Section 16.490. I hereby veto and delete from Section 16.490 the words, ‘For partial payment of principal and interest on Equipment Trust Note’ for the reason that the note became due and payable on March 31, 1973, and Bi-State will divert other funds to insure that its equipment will not be seized or other action taken. If the note is not paid, these funds will be used for this purpose. If the note is paid, these funds will be used to replace the funds that were diverted for that purpose.”
By stipulation, the parties agree that the money appropriated by § 16.490 was expended prior to the institution of this suit for partial payment of principal and interest on Equipment Trust Note, $48,520.00.
“Section 16.495. To the Bi-State Development Agency
For meeting the operating deficit of the transit system fee the period end-⅜ ⅝-⅝ Or» *¾0_ ,HV77
111^ wTtJ T5^tv
From General Revenue .. $166,936.00
“Section 16.495. I hereby veto and delete from Section 16.495 the words ‘for the period ending June 30, 1973’ for the reason that the language would prevent payment of these funds to the Bi-State Development Agency until after June 30, 1973.”
By stipulation, the parties agree the money appropriated was not expended prior to the institution of this suit; however, they also agree the money has since been expended in accordance with the provisions of the alternative writ.
“Section 16.500. To the Office of Administration
For Capitol Building Renovation •{West Side}
From General Revenue .. $1,100,000.00”
“Section 16.500. I hereby veto and delete from Section 16.500 the words ‘(West Side)’ for the reason that the renovation needs of the Capitol Building are not limited to the West Side.”
By stipulation, the parties agree the money appropriated was not expended prior to the institution of this suit and to date has not been expended.
“Section 16.515. To the State Park Board
For Operation of the Lee Fine Airport foe equipment to comply with the F.A.A. Regulations
*388 From General Revenue_$3,500.00”
“Section 16.515. I hereby veto and delete from Section 16.515 the words ‘Operation of the’ and ‘for’ for the reason that there is a grammatical inconsistency in this section.”
By stipulation, the parties agree the money appropriated was not expended prior to the institution of this suit. The budget record shows as of May 11, 1973, total allotments of $3,500.00, unexpended balance of $3,500.00, outstanding orders of $3,076.56, and an unencumbered balance of $423.44.
“Section 16.520. To the Department of Agriculture
For payment te Ae iellewAg companies for work performed in connection with the 1972 State Fair and necessary operational expenses from March 4 Am June 3% 197-3
Danville Tent and Awning...⅛|$15;192.-58
■Lamberth Plumbing and Heating TmTrrrrrrr 3⅝⅞46.49
Queen €i-t-y Elect-rio .45;916.64
^ «x f 4lVirn-<-.a W 1 UcrctClUrl T il VJ11T lTXtvl“ir T Am Jttne3%4973} — —- -3⅜99⅜90
From General Revenue .. $130,942.68
Operation (from M-anch 4 Ann Jane 3⅝ 4973)
From State Fair Fees Fund . 40,448.00
Total . $171,390.68”
“Section 16.520. I hereby veto and delete from Section 16.520 the words ‘to the following companies’; ‘from March 1 thru June 30, 1973
Danville Tent and Awning $15,192.58
Lamberth Plumbing and Heating 30,840.49
Queen City Electric 45,916.61
Operation (from March 1 thru June 30, 1973) 38,993.00’;
and ‘(from March 1 thru June 30, 1973)’ for the reason that such language is unnecessary.”
By stipulation, the parties agree that prior to the institution of this suit the following amounts were expended: Danville Tent and Awning $15,192.58; Lamberth Plumbing and Heating $30,840.49; and Queen City Electric $45,916.61. Subsequent to the institution of this suit and to the issuance of the alternative writs, the $38,993.00 was credited to the operation account and some money was spent, leaving a current balance of $38,674.73.
At the outset, Respondents question our jurisdiction to grant the relief sought by Relators. This contention is based on the language of Art. II, § 1, Mo.Const., which relates to the separation of powers and provides as follows:
“The powers of government shall be divided into three distinct departments— the legislative, executive and judicial— each of which shall be confided to a separate magistracy, and no person, or collection of persons, charged with the exercise of powers properly belonging to one of those departments, shall exercise any power properly belonging to either of the others, except in the instances in this constitution expressly directed or permitted.”
We conclude that this section of the Constitution does not deprive us of jurisdiction in cases such as this. Prior decisions of this Court so establish. For example, in State ex rel. Donnell v. Osburn,
“Nor does the office occupied by respondent as speaker of the House put him beyond the jurisdiction of mandamus. In Marbury v. Madison,
“Our conclusion is that the speaker is an officer to whom we may properly direct our writ to command the performance of the ministerial duty involved.”
The doctrine of the Donnell case was recognized and reiterated in the recent case of In re Marshall,
Courts regularly pass upon the constitutionality of acts enacted by the General Assembly and signed by the Governor. This is a proper function of the judicial branch of government and does not violate the separation of powers provision in the Constitution. This was recognized in State ex rel. Jones v. Atterbury,
Relators cite and rely upon the case of State ex rel. Robb v. Stone,
We conclude that we do have jurisdiction to decide this case and, if appropriate, to issue a writ of mandamus.
This brings us to the basic issue herein, namely, whether Art. IV, § 26 of the Mo. Const., authorized the Governor’s partial vetoes of language relating to purpose in the heretofore enumerated sections of the emergency appropriation bill. Do the words “may object to one or more items or portions of items of appropriation of money” authorize the action of the Governor in striking words from §§ 16.490, 16.495, 16.500, 16.515 and 16.520?
*390 This is a case of first impression in this state on this precise issue. However, we find that the courts of other states have considered such questions and those decisions are helpful in the resolution of this case.
In the case of In re Opinion of the Justices,
Article 63, § 5 of the Massachusetts Constitution provided that “the governor may disapprove or reduce items or parts of items in any bill appropriating money.” The Massachusetts Court held that the action of the Governor in striking the language as to purposes of the appropriation was a nullity, saying,
“ * * * The fact that this action relates solely to appropriation bills, in conjunction with the word ‘reduce,’ indicates clearly that the expression ‘items or parts of items’ refers to separable fiscal units. They are appropriations of sums of money. Power is conferred upon the Governor to reduce a sum of money appropriated, or to disapprove the appropriation entirely. No power is conferred to change the terms of an appropriation except by reducing the amount thereof. Words or phrases are not ‘items or parts of items.’ This principle applies to the condition attached to the appropriation now in question. That condition is not an item or a part of an item. The veto power conferred upon the Governor was designed to enable him to recommend the striking out or reduction of any item or part of an item. In the present instance His Excellency the Governor did not undertake to veto the appropriation of $100,000 made by item 101, or any part of it, nor to reduce that amount or any part of it apportioned to a specific purpose. He sought, rather, as shown by his message, to enlarge the appropriation made by the General Court by throwing the $100,000 into a common fund to be used for any one of several different purposes. We are of opinion that the power conferred upon him by said article 63 does not extend to the removal of restrictions imposed upon the use of the items appropriated.”
Commonwealth v. Dodson,
“We think it is plain that the veto power does not carry with it power to strike out conditions or restrictions. That would be legislation. Plainly, money devoted to one purpose can not be used for another, and it is equally plain that power to impose conditions before it can become available is legislation.
“An item in an appropriation bill is an indivisible sum of money dedicated to a stated purpose. It is something different from a provision or condition, and where conditions are attached, they must be observed ; where none are attached, none may be added.”
Both of these cases considered constitutional provisions quite similar to Art. IV, § 26 of our Constitution. They construe “item” as referring to a sum of money ap *391 propriated. Both cases hold that the constitutional language authorizes veto action with reference to such appropriation item, but that it does not authorize deletion of purpose or condition language as to an appropriation item not vetoed.
Another persuasive decision is State ex rel. Teachers and Officers of Industrial Institute and College v. Holder,
“ * * * Suppose a bill to create a reformatory for juvenile offenders, or to build the capítol, containing all necessary provisions as to purpose, amount of appropriation, and conditions; may the governor approve and make law of the appropriation, and veto and defeat the purpose or the conditions or both, whereby the legislative will would be frustrated, unless the vetoed purposes or conditions were passed by a two-thirds veto of each house? This would be monstrous. The executive action alone would make law which had never received the legislative assent.”
Other cases which support the view expressed in the foregoing cases include Bengzon v. Secretary of Justice and Insular Auditor of the Philipine Islands,
Respondents rely upon 3 California cases. In Reardon v. Riley,
“This action upon his part did not, in our opinion, thereby improperly increase an appropriation without legislative action, nor did it constitute an unauthorized veto of conditional or provisional language used in connection with the specific and included items of appropriation. It was an ‘elimination’ of the specific and included items and a reduction of the general and inclusive item of appropriation. Such a conclusion appears to effectuate the intent of the Legislature without depriving the Governor of the full effect of the veto power granted him.” It will be noted that the Court said this was not “an unauthorized veto of conditional or provisional language” relating to the appropriation.
We have read the other two California cases, Railroad Commission of California
*392
v. Riley,
We hold that “item” as used in Art. IV, § 26, refers to a separable sum of money appropriated. It does not refer separately to words, phrases or sentences which express purposes or conditions with reference to the appropriation made. Consequently, when the Governor struck words from §§ 16.490, 16.495, 16.500, 16.515 and 16.520, leaving the appropriation itself standing, he exceeded the veto authority conferred by Art. IV, § 26 of our Constitution.
In reaching this conclusion, we take cognizance of the fact that when the Governor takes part in appropriation procedures, he is participating in the legislative process and the language conferring such authority is to be strictly construed. This fact was recognized by this Court in the case of Brown v. Morris,
“The veto power of the executive should not be construed to restrict the power of the general assembly or the people unless such intent clearly appears. Its nature and function is thus stated in 82 C.J.S., Statutes, § 52, p. 85: ‘The authority of an executive to set aside an enactment of the legislative department is not an inherent power, and can be exercised only when sanctioned by a constitutional provision, and only in the manner and mode prescribed. The executive’s veto power is a power conditionally to prevent legislation, but is not the power to enact new laws or to recall or modify old laws. The veto power is in derogation of the general plan of the state government, and provisions authorizing it must be strictly construed, so as to limit its exercise to the powers expressly enumerated or necessarily implied.’ ”
Paraphrasing what the Court said in the Donnell case, it thus is clear that by issuing our writ of mandamus herein, we in no way interfere with the executive function conferred by the Constitution on the Governor and the executive department of government.
Respondents argue that the vetoes by the Governor did not change the purpose of the appropriations as directed by the General Assembly, and for that reason were in compliance with the Governor’s powers. They cite as an example a letter written by the Chairmen of the Appropriations Committees of the House and Senate concerning funds appropriated by § 16.500. That letter to the Governor’s Assistant stated that legislative intent with reference to the $1,100,000 appropriated by § 16.500 was that $1,004,000 was for renovation of the west side of the Capitol building and $96,000 was for improvements to provide for legislative office space and committee hearing rooms, including moving and rental expenses.
This contention by Respondents regarding legislative intent is not pertinent to the issue of whether mandamus will lie herein. The proceeding brought by Rela- *393 tors does not seek to have us determine the meaning of language in the appropriation bill. Instead, the petition seeks merely a determination that the Governor had no authority to strike purpose language from the appropriations in question, and asks that the Respondents be directed to issue and sign only warrants which are in conformity with the appropriation bill as enacted by the General Assembly. Hence, the issue is whether Art. IV, § 26 of the Constitution authorizes the partial vetoes which struck language as to purpose or terms of the appropriations, not what the language in the various sections means. Consequently, the letter from the two Appropriations Chairmen is not material to the issue we decide. 3
Certain other contentions by Respondents require some discussion. In the first place, they assert that Relators failed to demand of Respondents the relief prayed and hence a writ of mandamus should not issue. We overrule this contention. Paragraph 7 of the Agreed Statement of Facts recites that prior to institution of this suit, some of Relators made inquiry of Robert James, the Governor’s Assistant in charge of the Office of Administration, as to whether in the operation of that office he would give effect to the changes made in C.C.S.H.B. 16 by the Governor’s vetoes. Mr. James advised he would. Any further demand or request under such circumstances would appear to be useless and unnecessary.
Next, Respondents say that Rela-tors failed to exhaust their non-judicial remedies in that there was no attempt to override the Governor’s veto. We overrule this contention. The action of the Governor in striking merely purpose language is not an authorized veto under Art. IV, § 26. It is a nullity, as the Court observed in the Massachusetts case of In re Opinion of the Justices, supra. Hence, there is nothing to override, and such an attempt is not required. The Supreme Court of Illinois, in Fergus v. Russel, supra, overruled a contention that an attempt to override such action was necessary.
Next, Respondents claim that all issues are moot. As previously noted, the case is moot as to §§ 16.490 and 16.495 insofar as any further order by this Court is concerned, but the case is not moot as to the other sections. The fact that Respondents say that in future expenditures they will disburse funds as the General Assembly intended does not dispose of the case.
Finally, Respondents claim that the vetoes in question are valid on the basis of historical precedent. In support thereof, Respondents point to paragraph 6 of the Stipulation of Facts which recites various messages by a former Governor which struck purpose or directory language from appropriation items. Relators concede that such similar vetoes have occurred, but say that they are immaterial to the issue presented. We agree. Unquestionably, this is not the first instance in which a Governor of Missouri has stricken directory or purpose language with reference to an appropriation permitted to stand. However, those actions did not reach this Court for review. The fact of such prior occurrences cannot enlarge the constitutional authority of the Governor with respect to his right to make partial vetoes under Art. IV, § 26. They do not validate the vetoes here in question.
In view of the fact that Relators sought no relief against Governor Bond in his ca *394 pacity as Governor, we dismiss this proceeding as to him as Governor. As to the other Respondents, we make our writ peremptory with reference to the appropriations provided in §§ 16.500, 16.515 and 16.520.
Notes
. Presently, a vacancy exists in the office of Commissioner of Administration. Under § 26.300.9, Laws of 1971, the Governor is Acting Commissioner of Administration.
. This doctrine was articulated in the concurring opinion by Chief Justice James T. Blair, but an examination of the report discloses that this concurring opinion was concurred in by three other judges and actually became the opinion of the Court.
. Interpretation of statutes as well as constitutional provisions is a judicial function and may be made when raised in appropriate litigation. United States v. American Trucking Association, Inc.,