STATE of Oklahoma ex rel. William J. WISEMAN, Jr., Petitioner, v. OKLAHOMA BOARD OF CORRECTIONS, and Oklahoma Department of Corrections, Respondents.
No. 52532.
Supreme Court of Oklahoma.
Dec. 15, 1978.
Order of Jan. 31, 1979. As Corrected On Denial of Rehearing July 15, 1980.
614 P.2d 551
Larry Derryberry, Atty. Gen. of Oklahoma, Gerald E. Weis, Asst. Atty. Gen., Chief, Civil Div., Oklahoma City, for respondents.
IRWIN, Justice.
On the last day of the 1978 regular session of the Legislature, the Senate and House of Representatives passed and presented to Governor David L. Boren Enrolled House Bill No. 1567. Within fifteen days thereafter the Governor approved and signed the bill except he specifically vetoed and disapproved section 17. This section, inter alia, required the Board Of Corrections to establish criteria for recommending inmates to be considered for parole by the Pardon and Parole Board; and required the Department of Corrections to certify to the Pardon and Parole Board the total inmate population incarcerated in the various institutional facilities under their custody. Neither the Board of Corrections nor the Department of Corrections (respondents) complied with section 17 because of the Governor‘s veto.
In this original proceeding, William J. Wiseman, Jr., (Petitioner) seeks a Writ of Mandamus directing respondents to comply with section 17 notwithstanding its veto by the Governor.
This is a matter of great public concern. Accordingly, we assume jurisdiction under the rationale of Phillips v. Oklahoma Tax Commission, Okl., 577 P.2d 1278 (1978).
House Bill 1567 contained several general legislation (non-appropriation) sections of provisions relating to the operation, duties and responsibilities of the Board of Corrections and the Department of Corrections and their officials and employees. It also contained several sections or provisions making appropriations of money embracing distinct items. Section 17, which the Governor vetoed, involved general legislation as distinguished from an item of appropriation.
The force and effect of the Governor‘s veto of section 17 and his approving and signing HB 1567 in all other respects is the fundamental issue presented.
The parties concede the Governor‘s power to approve or disapprove (veto) bills, or parts thereof, is limited by the Constitution and he can act only in the manner specified and can exercise only those powers granted him.
“APPROVAL OR VETO OF BILLS—PASSAGE OVER VETO—FAILURE TO RETURN BILL. Every bill which shall have passed the Senate and House of Representatives, and every resolution requiring the assent of both branches of the Legislature, shall, before it becomes a law, be presented to the Governor; if he approve, he shall sign it; if not, he shall return it with his objections to the house in which it shall have originated, who shall enter the objections at large in the Journal and proceed to reconsider it. If, after such reconsideration, two-thirds of the members elected to that house shall agree to pass the bill or joint resolution, it shall be sent, together with the objections, to the other house, by which it shall likewise to reconsidered; and, if approved by two-thirds of the members elected to that house, it shall become a law, notwithstanding the objections of the Governor. In all such cases, the vote in both houses shall be determined by yeas and nays, and the names of the members voting shall be entered on the Journal of each house respectively. If any bill or resolution shall not be returned by the Governor within five days (Sundays excepted) after it shall have been presented to him, the same shall be a law in like manner as if he had signed it, unless the Legislature shall, by their adjournment, prevent its return, in which case it shall not become a law without the approval of the Governor. No bill shall become a law after the final adjournment of the Legislature, unless approved by the Governor within fifteen days after such adjournment.” (emphasis ours)
“APPROPRIATION BILLS—APPROVAL OR DISAPPROVAL—EMERGENCY BILLS. Every bill passed by the Legislature, making appropriations of money embracing distinct items, shall, before it becomes a law, be presented to the Governor; if he disapproves the bill, or any item, or appropriation therein contained, he shall communicate such disapproval, with his reasons therefor, to the house in which the bill shall have originated, but all items not disapproved shall have the force and effect of law according to the original provisions of the bill. Any item or items so disapproved shall be void, unless repassed by a two-thirds vote, according to the rules and limitations prescribed in the preceding section in reference to other bills: Provided, That this section shall not relieve emergency bills of the requirement of the three-fourths vote.” (emphasis ours).
This Court discussed the application of
“Section 11 above applies to all bills as a whole. That is, bills in their entirety. No bill in its entirety becomes a law without compliance with the provisions of
said section. Any bill becomes a law as a whole when such provisions are complied with. The provisions are plain and, in our opinion, need no construction further than that they mean what they say.”
The Court observed with respects to
“* * * [the Constitutional Convention] in order to relieve such a bill from the restrictions imposed under Sec. 11, supra, and to free it from danger of being defeated as a whole, made provisions whereby separate items in such a bill may be disapproved and cut out by the Governor without affecting the bill in its entirety.”
Another distinction between
HB 1567, now under consideration, not only contains several sections or provisions “making appropriations of money embracing distinct items,” but also contains several general legislation sections or provisions which may be categorized as “non-appropriation” sections or provisions. It necessarily follows that parts of HB 1567 are dealt with by
Regents of State University v. Trapp, 28 Okl. 83, 113 P. 910 (1911), and Peebly v. Childers, 95 Okl. 40, 217 P. 1049 (1923), clearly show a distinction between the operative effect of
“Section 12, Art. 6, Const., providing that the Governor may disapprove any item of a bill making appropriations of money embracing distinct items, does not apply to a special appropriation bill containing only one item of appropriation for the support and maintenance of the State University; and the act of the Governor approving the bill in part and disapproving other parts thereof, directing how the funds appropriated shall be apportioned, is a nullity.”
The Court said that
“* * * grants to the Governor the legislative power of the veto. By reason of that section no bill which is sent to the Governor less than five days before the adjournment of the Legislature can become a law without the approval of the Governor, unless passed over his veto; and it cannot become a law with his approval, unless approved by him within 15 days after such adjournment. By the veto power conferred upon the Governor by this section, he is authorized to approve or disapprove an act only in toto. He may not approve a part and disapprove a part, but section 12, art. 6, Const., provides for an exception, in that by it power is conferred upon the Governor to approve some items of certain bills and disapprove others.” (emphasis ours)
Since the Legislative bill in Trapp contained only one item of appropriation and came within the purview of
In Peebly, supra, the Legislature had passed and presented to the Governor what was generally known as the “Institution bill“, which made appropriations for numerous institutions within the State, among these being an appropriation for salaries to the State University of $700,000.00 for the year ending June 30, 1924, and $720,000.00 for the year ending June 30, 1925. The Governor, after the final adjournment, drew a line through the $700,000.00 and the $720,000.00 appropriations and then wrote “approved in the sum of $500,000.00 only.” After reducing other items of the bill in the same manner and disapproving other items in full, the Governor appended thereto the following words in reference to the State University appropriation.
“Approved * * * except as to item stricken and specifically disapproved and except as to the following items: Page 2, State University * * * salaries $700,000.00 reduced to $500,000.00 and $720,000.00 reduced to $500,000.00. Signed J. C. Walton, Governor.”
The plaintiff in Peebly, supra, who sought to enjoin the payment of salaries for the University under the “Institutional bill“, urged that Trapp, supra, was applicable and that under Trapp, the appropriation bill was a nullity.
The Court in Peebly said that under
Most certainly the Governor could have successfully exercised the partial veto as to the entire $700,000.00 appropriation for the fiscal year of 1924 or the entire $720,000.00 appropriation for the fiscal year of 1925, but he could not reduce those appropriations and as reduced approve the bill. Since the governor had no authority to partially veto each separate appropriation and since
The Trapp and Peebly cases support the following:
Since Trapp involved an appropriation bill containing only one item of appropriation and Peebly involved an institutional bill “making appropriations of money embracing distinct items“, neither decision discussed the specific kind of bill presented in the case at bar, i. e. a bill containing several general legislation sections or provisions and several sections or provision making appropriations of money embracing distinct items. The Governor did not disapprove (line item veto) an appropriation of money embracing a distinct item in the case at bar but vetoed a general legislation provision. Query: When a bill is presented to the Governor which contains general legislation provisions and other provisions making appropriations of money embracing distinct items, is the Governor‘s power of veto prescribed by
In our opinion, neither
Since
Were we to hold the Governor‘s power to veto was controlled entirely by
Since the Governor had to affirmatively approve all of the general legislation provisions of HB 1567 for such provisions to become law, and the Governor‘s approval was qualified by reason of his vetoing sec. 17, his qualified approval was a nullity. The Governor, having failed to approve HB 1567 within fifteen days after the adjournment of the Legislature, the general legislation sections or provisions of HB 1567 failed to become law. Since none of the general legislation provisions of HB 1567, including sec. 17, became law, petitioner is not enti-
Respondent argues that sec. 17 of HB 1567 bears no legitimate connection with or natural relation to the appropriations made by HB 1567, or for that matter, any of the general legislation sections of the bill. Respondent contends sec. 17 is invalid under the one subject standard set forth in
The orderly administration of our state government, and in particular the operation of the Oklahoma Board of Corrections and the Oklahoma Department of Corrections, require the effective date of this decision be postponed until some future date. It is therefore ordered that this decision shall become effective at 12:01 o‘clock A. M. Thursday, February 1, 1979.
APPLICATION TO ASSUME ORIGINAL JURISDICTION GRANTED; PETITION FOR WRIT OF MANDAMUS DENIED.
Justice Denver N. Davison, having certified his disqualification by reason of his pending retirement, District Judge Charles L. Owens was appointed Special Justice in his stead. Justice Rudolph J. Hargrave, Justice Davison‘s successor in office, honored the special appointment and did not participate.
Justice William A. Berry, having certified his disqualification by reason of his pending retirement, District Judge Alma J. Wilson was appointed Special Justice in her stead. Justice Marian P. Opala, Justice Berry‘s successor in office, honored the special appointment and did not participate.
HODGES, C. J., LAVENDER, V. C. J., BARNES, J., and OWENS, Special Justice, concur.
WILLIAMS, SIMMS and DOOLIN, JJ., and WILSON, Special Justice, dissent.
WILSON, Special Justice, joins with SIMMS, J., concurring in the dissenting views filed and promulgated herein by DOOLIN, J.
WILLIAMS, J., presents dissenting opinion for filing and promulgation.
Thereupon, Rehearing is denied.
DOOLIN, Justice, dissenting:
The majority‘s analysis of the governor‘s attempted veto, and his power and lack of power in respect to it, is strikingly accurate under
There is no doubt a chief executive may partially disapprove a general appropriation bill under
The majority‘s structured anomaly is in direct conflict with
“The general appropriation bill shall embrace nothing but appropriations for the expenses of the executive, legislative, and judicial departments of the State, and for interest on the public debt. The salary of no officer or employee of the State, or any subdivision thereof, shall be increased in such bill, nor shall any appropriation be made therein for any such officer or employee, unless his employment and the amount of his salary, shall have been already provided for by law. All other appropriations shall be made by separate bills, each embracing but one subject.” (Emphasis supplied).
“Every act of the Legislature shall embrace but one subject, which shall be clearly expressed in its title, except general appropriation bills, general revenue bills * * *.”
This court should not create confusion by making two bills out of HB 1567, then ignore constitutional sections which appear to invalidate its construction. The majority holds at least a portion of the bill has become law. Thus its constitutionality is an issue. HB 1567 either covers two subjects or it does not. If it encompasses two it violates
In Regents of State University v. Trapp, 28 Okl. 83, 113 P. 910 (1911) this court said a governor‘s power of partial disapproval under
Under
The majority further seeks to soften the effect of its decision by postponing the effective date until after the Legislature convenes. This same “postponement” if valid,1 could be used if the entire bill was invalidated because of improper use of the veto.
I am authorized to state that SIMMS, J. and WILSON, Special Justice, concur in the views expressed herein.
ORDER
It is hereby ordered that the date of February 1, 1979, specified in the opinion promulgated and filed in this cause on December 15, 1978, as the effective date of such opinion, be and the same is postponed until the further order of this Court.
WILLIAMS, Justice (dissenting):
I respectfully dissent to the opinion of the majority promulgated in this case for the reasons hereinafter stated.
Petitioner (hereinafter State, petitioner or relator)1 asks this Court to assume original jurisdiction and issue a writ of mandamus2 directing the respondents, the Oklahoma Board of Corrections (Board) and the Oklahoma Department of Corrections (Department), to comply with Section 17 (Section 17) of Enrolled House Bill No. 1567 (H.B. 1567), Ch. 273, O.S.L.1978,3 passed by the 36th Legislature on April 28, 1978, the last day of the second period of the regular session, and thereafter approved by the Governor except for the simultaneous pur-
Notes
I
Respondents admit that the first six sections of H.B. 1567 made appropriations to the Department. However, in briefs and oral presentation they argue that the bill is not an appropriation bill as contemplated by
Governor within fifteen days after such adjournment“.
Respondents cite the opinion of the U. S. Supreme Court in the case of Bengzon v. Secretary of Justice, 299 U.S. 410, 413, 57 S.Ct. 252, 81 L.Ed. 312 (1937) where that Court said, “An appropriation bill is one the primary and specific aim of which is to make appropriations of money from the public treasury“.9
In Bengzon, supra, at page 414 of the U. S. Report, 57 S.Ct. at page 254, the Supreme Court had occasion to speak to this very subject. It there said:
The term “appropriation act” obviously would not include an act of general legislation; and a bill proposing such an act is not converted into an appropriation bill simply because it has had engrafted upon it a section making an appropriation. An appropriation bill is one the primary and specific aim of which is to make appropriations of money from the public treasury. To say otherwise would be to confuse an appropriation bill proposing sundry appropriations of money with a bill proposing sundry provisions of general law and carrying an appropriation as an incident. (Emphasis added.)
To be noted is the fact that the very first section of the bill, Section 1, alone appropri-
ed, That if any subject be embraced in any act contrary to the provisions of this section, such act shall be void only as to as much of the law as may not be expressed in the title thereof.
ated twenty-nine million-plus dollars from monies in the General Revenue Fund of the state treasury to the Department. Section Two appropriated a total of more than one and a half million dollars to it and Sections Three through Six made appropriations ranging from one hundred thousand dollars to in excess of one million nine hundred thousand dollars to the Department. Altogether, H.B. 1567 appropriated to Department for the fiscal year ending June 30, 1979, approximately $34,000,000.00.
In my view the various sections to which I have referred, respectively appropriate different amounts of money for the several indicated purposes of the overall corrections budget and pursuant to
II
One argument advanced by respondents is to the effect that § 17 is an “item” that may be disapproved by the Governor under
manner, and purpose of the various items of expenditure.” (Emphasis added.)
See also Don Muyskens’ article, Item Veto Amendment to Iowa Constitution, 18 Drake Law Review 245, 249 (May 1969) citing Dammann, supra, this note, State v. State Bd. of Fin., 69 N.M. 430, 367 P.2d 225 (1961), and adding, “and any other matters germane to the appropriation,” (E.A. citing State ex rel. Teachers, Officers v. Holder, 76 Miss. 158, 23 So. 643 (1898)).
Also see annotation, 35 A.L.R. 600 (1925), supplemented in 99 A.L.R. 1277 (1935) and cases cited therein.
In the Bengzon case, supra, cited by respondents, the Supreme Court of the United States said the Supreme Court of Texas in Fulmore v. Lane, 104 Tex. 499, 512, 140 S.W. 405, clearly pointed out the distinction between the veto power in respect of a bill in the general sense and a bill making appropriations. Quoting the Texas Court with approval the U. S. Supreme Court said,
Nowhere in the [Texas] Constitution is the authority given the Governor to approve in part and disapprove in part a bill. The only additional authority to disapproving a bill in whole is that given to
245, 251 (May, 1969), Item Veto Amendment to Iowa Constitution by Don Muyskens; Thirteenth Guam Legislature v. Bordallo, Gov., 430 F.Supp. 405, 415 (D.C.1977), aff‘d., 588 F.2d 265 (9th Cir.).
The Supreme Court of Idaho recently had before it the precise problem with which we now are confronted. In Cenarrusa v. Andrus, 99 Idaho 404, 582 P.2d 1082, 1090, that Court said: “The Governor argues that nothing in the language of the section [of the Idaho Constitution authorizing the Governor, as in Oklahoma to “disapprove” “any item or items” of a “bill making appropriations of money embracing distinct items“] requires the item veto to be limited to money items. We think that upon close examination of the language it is clear that this proposition is incorrect. The phrase ‘embracing distinct items’ modifies the phrase ‘appropriations of money.’ Thus, the words ‘any bill making appropriations of money embracing distinct items’ clearly refers to items of appropriation of money. Obviously the word item can not be given different meanings within the same sentence. We hold that the language empowering the Governor to ‘disapprove
object to an item or items where a bill contains several items of appropriation. It follows conclusively that where the veto power is attempted to be exercised to object to a paragraph or portion of a bill other than an item or items, or to language qualifying an appropriation or directing the method of its uses, he exceeds the constitutional authority vested in him, and his objection to such paragraph, or portion of a bill, or language qualifying an appropriation, or directing the method if its use, becomes noneffective. (Emphasis added.)11
That language is considered particularly applicable here.
In Carter v. Rathburn, 85 Okl. 251, 209 P. 944, 946 (1922) this Court stated “* * * Sections 11 and 12, Art. VI, of the Constitution confer certain powers upon the Governor, known as the veto powers, and prescribed the manner of exercising such powers.”
of any item or items’ of an appropriation bill means that he may disapprove only items of appropriation of money.”
A detail or particular item with expressed amount and purpose is still “an item irrespective of the fact that it may be included within a larger, more general item.” See Green v. Rawls, 122 So.2d 10, 11, 16, 20 (Fla.1960), in turn cited in Welden v. Ray, Gov., 229 N.W.2d 706, 712-713 (Iowa 1975).
III
In connection with one argument already discussed (that H.B. 1567 allegedly is not a general appropriation bill as contemplated in
Respondents say that as the opinion in Trapp held the attempted reduction by the Governor of “apportioned” amounts of a single-item appropriation amounted to a disapproval of the whole bill, so here we should hold the purported veto of Section 17 in this case was a valid disapproval of the
He possesses only such powers and duties as are vested in him by constitutional or statutory grant. State ex rel. Charlton v. French, 44 N.M. 169, 99 P.2d 715, 720 (1940).
Section as a provision of general law contained in a general legislative act under Section 11 (which we already have declined to do) or as an “item” under Section 12 of Article VI (which likewise we have declined to do), or failing that, they argue that pursuant to the holding in Trapp, we should decide that the partial attempted veto of H.B. 1567 did not amount to an unqualified approval and that the whole bill failed to become a law.
The opinion of this Court in Trapp in effect held that under
IV
Another assertion respondents make is that H.B. 1567 is a “hybrid” or “split” bill partaking in minor part of the nature of a bill appropriating money whose items are subject to the Governor‘s veto power under
Trapp was cited recently by the Supreme Court of Idaho for the statement that “an item veto provision applying to ‘[e]very bill passed by the Legislature making appropriations of money embracing distinct items’ [applied] only to those bills where more than one item of appropriation was made“. Cenarrusa v. Andrus, Governor, 99 Idaho 404, 582 P.2d 1082, 1089, 1090, 1091 (1978).
an “item” that was disapproved under
Respondents rely on Peebly v. Childers mainly for its holding the Governor may not reduce items. However, it is to be noted that respondents incidentally reiterated the substance of language employed in both the body and in the 5th paragraph of the syllabus of that case indicating the Governor need not sign the bill for the remaining items to be enacted.16
Respondents’ reference to the 1923 opinion of this Court in Peebly v. Childers on the basis it held a Governor could not lawfully reduce the amount of respective items in appropriation bills “embracing distinct items” is of little avail to them. Section 17 did not, as I have stated, constitute such an item. The holding is inapposite as the principle there announced is not deemed to be dispositive of any issue involved in the present case,17 as H.B. 1567 was approved.
bill’ not contemplated by the Constitution. It is only logical that the general legislative provisions of H.B. 1567 be subject to [veto under] Section 11 of Article VI and that its appropriation provisions be subject to [veto under] Section 12 of Article VI. Otherwise, by using the device of a ‘split bill‘, the Legislature could nullify the clear intent of Section 56 of Article V, and the clear intent of Sections 11 and 12 of Article VI, as expressed in the decisions in Regents for State University v. Trapp, 28 Okl. 83, 113 P. 910 (1911); and Peebly v. Childers, 95 Okl. 40, 217 P. 1049 (1923).”
The language from Peebly v. Childers that no affirmative approval by the Governor was required to enact the appropriation of distinct items in a bill embracing such items not vetoed, was this Court‘s interpretation there of the language from the second sentence of Section 12, “[but] all items not disapproved shall have the force and effect of law according to the original provisions of the bill.” The Court already had held in the case that the attempted reduction of the described items of appropriation was void. In accord, see our decisions in Regents v. Trapp, supra, (overruled herein in another aspect, but) holding 113 P. at pages 910 and 913 that by
The Court was not required under the facts existing in Peebly v. Childers to interpret the language at all because the Governor had signed the bill as above stated. In our view, the language was surplusage and definitely constitutes obiter dictum.
The statement that no affirmative approval by the Governor of items not vetoed in the bill under consideration in that case was required, may or may not have been the correct interpretation to give the language of the Constitution in the setting in which it is found and may not be repeated when a proper case arises specifically requiring that the language be construed.
There are at least three cogent and strong reasons why a consideration of the meaning of such language of
In such a case, the Court well may find the real meaning of the subject language of
Sketchily and succinctly stated those reasons are: (1), application of the principle of pari materia since the bills relate generally to the same subject matter, see, e. g., Fitzpatrick v. McAlister, 121 Okl. 83, 248 P. 569, 572 (1926); (2), consideration of the clear and specific language of the two sections, including internal cross-references (see the Sections quoted supra in notes 5 and 6), indicating that possibly if not probably all bills including
Nor have we found a single appropriation bill enacted since Statehood which was not signed by the Governor and yet to which validity was sought to be ascribed.
Other courts and writers, relying on the language in Peebly v. Childers we have distinguished as being dictum inapplicable to the facts of that case, have classified Oklahoma as having a constitutional provision that allows items of a bill making appropriations of money embracing distinct items, not disapproved by the Governor to become a law without his approval. See State ex rel. Jamison v. Forsyth, St. Aud., 21 Wyo. 359, 133 P. 521, 531 (1913) and Mills v. Porter, Auditor, “The Veto Case“, 69 Mont. 325, 222 P. 428, 432, 433 (1924).
See also Don Muyskens’ article, Item Veto Amendment To The Iowa Constitution, 18 Drake Law Review 245, 247-248 (May 1969) for the statement, based on the dictum from Peebly v. Childers, classifying Oklahoma as a jurisdiction, “whose constitution requires the [G]overnor‘s affirmative disapproval (i.e., if he does nothing the bill becomes law), the attempted partial veto is ineffective and the bill as a whole becomes law.”
We have found no decision of this Court that involved the point that has so held.
“The [power to] veto is distinctly a negative, not a creative power.” Mills v. Porter, 69 Mont. 325, 222 P. 428, 430 (1924). State ex rel. Sego v. Kirkpatrick, 86 N.M. 359, 524 P.2d 975, 981 (1974). It may properly be exercised, only to cut out an item or items of appropriation in a bill embracing distinct items.
I believe H.B. 1567 is a single, unified bill appropriating some $34,000,000.00 to Department and that § 17 thereof merely enacted conditions pertinent, suitable general legislative qualifications, naturally and reasonably related to the expenditure of the funds therein appropriated.18
V
A further argument respondents advance is that both the body and the title of H.B. 1567 encompass two subjects and that the bill is void as being in violation of
“manifest impropriety” for the court to choose “between the two, and [hold] the act valid as to one and void as to the other.”
Respondents add that one reason they have failed to comply with Section 17, is that it is a non-appropriation section, and lacks a “logical or natural connection” when combined with the appropriation sections of H.B. 1567 and thereby goes beyond the one-subject limitation of the cited
The last sentence of
A proviso at the conclusion of
I have concluded H.B. 1567 is not a general appropriation bill such as is contemplated by
one thing, containing several provisions, all complementary of each other and constituting one whole, to be picked to pieces, and some of the pieces approved and other vetoed, is to divide the indivisible, to make one of several, to distort and pervert legislative action, and, by veto, make a two-thirds vote necessary to preserve what a majority passed allowable as to the entire bill, but inapplicable to a unit composed of divers complementary parts, the whole passed because of each.”
In the 1975 opinion of the Supreme Court of Texas, Jessen Associates, Inc. v. Bullock, 531 S.W.2d 593, 600, (further discussed hereinafter in Section VII), that Court was considering a “rider” to their general appropriation bill, which, under their Constitution differently from our general appropriation bills, may include general legislation. The Court there said, “Despite the apparent exception for general appropriation bills, . . . they too must be limited to a single subject, which is the appropriation of funds to be paid from the State Treasury.” “In determining whether a bill includes more than one subject, both the constitutional provision and the statute under consideration are to be liberally construed in favor of constitutionality.”
Respondents’ argument at this point to an extent necessarily overlaps some of those discussed earlier herein. What I al-
ready have said appears to adequately rebut the assertion that the body of H.B. 1567 contains statutory provisions pertaining to two subjects.
Based upon the foregoing treatment to this point of the several arguments advanced, I conclude the body of the bill does not violate the quoted pertinent language of the mentioned sections of Article V.
In connection with respondents’ alternative argument that the title of H.B. 1567 encompasses two subjects, we note that the first clause of that title recites, “AN ACT RELATING TO THE DEPARTMENT OF CORRECTIONS AND MAKING APPROPRIATIONS THERETO . . . .”21 Respondents cite cases,22 to the effect that the subject of an act must be expressed in its title, and as noted they assert neither the body nor title may lawfully encompass more than one subject.23
In National Mut. Casualty Co. v. Briscoe, 188 Okl. 440, 109 P.2d 1088 (1940), this Court in dealing with the one-subject requirement of
The term ‘subject‘, as used in these provisions, is to be given a broad and extended meaning, so as to allow the Legislature full scope to include in one act all matters having a logical or natural connection. If all parts of an act relate directly or indirectly to the general sub-
Also in the Briscoe case this Court said:
Considerable misunderstanding has arisen over use of the word ‘germane‘, which does not appear in the section. The germaneness which is required is that the body of the act be germane to its title.
Referring to the matters covered in the title of § 17, see footnote 4, supra, one of its twenty-four clauses is, “PROVIDING FOR THE ESTABLISHMENT OF CRITERIA FOR RECOMMENDING INMATES FOR CONSIDERATION FOR PROBATION AND PAROLE, . . . .” Upon comparison of the standards posed in respondents’ cases, the title of H.B. 1567 amply meets the requirement that the subject of the bill be clearly expressed in its title. See footnotes 21 and 23, supra. It is both sufficiently comprehensive and yet detailed generally, and also specifically as relates to Section 17, to fully comply with the Section to which respondents allude. Too, the matter in § 17 is covered in its title and is germane to the appropriation (
I deem Section 17 to have a “logical or natural connection” to the one subject (funding for Department and related directions as to duties and operations) contained in House Bill 1567. I further believe my stated conclusions to be aligned with those earlier decisions cited above, concerning the definitive scope of the word “subject” as it appears in
VI
Respondents argue that § 17 is an attempt to invade the province of the Governor‘s clemency powers and is therefore in violation of
In Oklahoma, the governmental powers are distributed among the three branches.
The legislative authority of the State, subject to the reservation of powers of initiative and referendum to the people, is vested in the Legislature,
The Legislature enacts laws specifying what acts constitute crimes and prescribing the punishment for commission thereof.
The Legislature under authority reserved to it may itself enact statute specifically providing for “good time” credits for “inmate(s) of a state correctional institution“.
In City of Sand Springs v. Dept. Public Welfare, 608 P.2d 1139 (Okl.1980), we recently said “The Legislature may delegate to an administrative body the power to determine some fact or state of facts upon which the law makes its operation depend.” See also
In addition to the credits for good conduct, blood donations, training program participation, jail-time and unrevoked parole time served, on prisoners’ time to be served which the Legislature itself has allowed by statute (
We note particularly that in the latter portion of
The delegation of authority there granted is very similar to that made in Section 17 of H.B. 1567. However, it is more far-reaching in both nature and degree. There, the grant was to an individual, the Pardon and Parole Officer. He must have inquiry made, render a report and “his findings . . . shall be considered as a basis for consideration of said person for recommendation to the Governor for parole.”
To the contrary, the grant of authority to and placement of duty on Board in Section 17 is merely to “establish criteria for recommending inmates to be considered for parole by the Pardon and Parole Board” in-
authority to suggest location of treatment center.
Whereas the quoted language of Section 332.7, supra, merely places before the Pardon and Parole Board the Pardon and Parole Officer‘s “findings” for their consideration, so Section 17 requires only that the Corrections Board “establish criteria for recommending inmates to be considered for parole by the Pardon and Parole Board“. The Pardon and Parole Board may then give the criteria such attention as it desires, if any. At most it would appear that the Pardon and Parole Board need give such “criteria” and any inmates, if any, presented to the Pardon and Parole Board as meeting any such criteria, “consideration” only.
To be noticed in this connection is the fact that
Parole is a matter of grace. Chase v. Page, 456 P.2d 590 (Okl.Cr.1969). “The Oklahoma statutory scheme” “does not establish a liberty interest.” Shirley v. Chestnut, 603 F.2d 805 (C.A. 10, 1979). The Pardon and Parole Board before the enactment of § 17, under
In this day of the operation of numerous phases of state government in compliance with Federal Court edict, the Legislature in the exercise of its broad prerogatives may well believe it important by the enactment of legislation, to add impetus to the prompt selection of those incarcerated felons thought more ready for consideration for clemency. I have mentioned (see Section V) the effect the reduction of the number of inmates being cared for would have on the funding the Legislature must provide to Board and Department. “Practical values or consequences are to be remembered.” Commonwealth v. Dodson, Clerk of House of Delegates, 176 Va. 281, 11 S.E.2d 120, 134 (1940).
Despite the slight, if any, enlargement of Pardon and Parole Board‘s authority and certainly no material infringement thereof
expiration of one-third of his maximum sentence in such a manner as the Board may determine;” (emphasis added) and that “pursuant to
No suggestion is nor indeed could be made that the Governor has been granted the power to pass on the prerogative of the Legislature to delegate authority to Board to “establish criteria for recommending inmates to be considered for parole by the Pardon and Parole Board” including “minimum percentage of a sentence to be served before recommendation” other than that of veto previously discussed throughout this opinion. Such delegation has been made by § 17. The granting of such authority does not “restrict or interfere with [the Governor‘s] power,” Ex parte Williams, see note 26, supra, any more than did the granting of “credits” by the Legislature.
Performance of Correction Board‘s duty under § 17, to establish criteria for recommending classes of inmates ready for consideration by Pardon and Parole Board, who in turn might or might not, in their sole discretion recommend to the Governor that clemency be granted, in my opinion is not the exercising of such measure of “meaningful decision-making authority“, as to amount to an invasion of the Pardon and Parole Board‘s authority, let alone the Governor‘s. See Sanders v. Benton, note 27.
The grant of any authority involved, if any, in making the simple mathematical reduction of the percentage of an inmate‘s time remaining to be served by 5%, in the statutorily prescribed circumstances (over 3500 inmate population) in the event they may arise, could not possibly be an infringement of the Governor‘s authority. It is not even a delegation of, or an infringement upon the Legislature‘s authority for that body has already by statute fixed the conditions and the percentage of reduction, all within the Legislature‘s rightful constitutional law-making sphere. Should the inmate population exceed 3500 on any report-
ing date the duties of Board at most will be ministerial in nature only and will be merely to report that fact and announce that a 5% reduction of minimum time required to be served has come about.
If the recommendations to the Pardon and Parole Board are merely for such Board‘s consideration and without persuasive force other than the validity of their own intrinsic merits, it would appear they surely could have no greater effect on the decisional authority of the Chief Executive. The ultimate exercise of the power to grant a parole or pardon is for the Governor, “subject to such regulations as may be prescribed by law“,
I conclude that the Legislature has lawfully delegated the authority to Corrections Board and may lawfully require it to “establish criteria for recommending inmates to be considered for parole by the Pardon and Parole Board,” [“including] minimum percentage of a sentence to be served before recommendation” and further directed that “the minimum percentage [of a sentence to be served] shall be reduced five percent (5%)” “if . . . the inmate population is greater [on a reporting date] that three thousand five hundred (3,500) . . .”
No infringement upon the Governor‘s constitutional prerogative to grant clemency has occurred, in my view.
VII
We move to a consideration of the effect the purported veto of § 17 had on the enactment of that and all other sections of H.B. 1567. The query arises as to whether H.B. 1567 including its § 17, became a law despite such purported veto. Petitioner contends that the Governor‘s “attempt to” veto Section 17 was ineffectual and the entire bill became law upon his approving it. I agree.
This Court has previously, in the case of Peebly v. Childers, 95 Okl. 40, 217 P.2d 1049,
The Supreme Court of North Dakota in State v. Olson, Gov., 65 N.D. 561, 260 N.W. 586, 591 (1935) quoted the above-stated principle of law (Governor may not reduce an item of appropriation) from Peebly v. Childers with approval.
Miss Ada E. Beckman in her Temple Law Review article31 states that Oklahoma is considered to be one of the “Other authorities” holding along with Virginia as expressed in Commonwealth v. Dodson “that an unconstitutional veto is no veto at all and at best is but an idle gesture; that the
items [partially] vetoed were in fact never stricken out and that an [otherwise] unequivocal and unconditional approval validates the bill as a whole.”
That writer continues, to the effect it appears “to be clear that the invalid disapproval of a condition is a nullity, and the majority of the courts have found that the invalid veto does not destroy the item [condition] and that it remains in force.”
The two important things about Peebly v. Childers are first, the correctness and validity of the rule of law proper, there announced and second, the result there reached, though based on dictum rather than the fact the Governor had actually approved the balance of the bill in writing.
All three branches of our State Government, apparently with but few exceptions, have recognized and followed that and other generally recognized principles of constitutional law, pertinent here.32
A majority of the jurisdictions with constitutional provisions similar to ours,
the same time enabling the Governors to consider them separately.
In all such bills the Legislature has either tersely or in a more detailed fashion as deemed appropriate, stated the purposes and placed whatever conditions and qualifications on the proposed expenditures as appeared appropriate.
For instance by S.B. 24, O.S.L.1929, p. 57, the Legislature appropriated $500,000.00 for construction of the Historical Building, and in a section thereof provided for submission by the contractor of an appropriate, adequate surety bond and further provided that no member of the State Historical Society, which along with the State Board of Affairs, was to supervise and approve the construction, could “draw any compensation” from the project “except necessary and reasonable expenses.”
As relates to general appropriation bills, the First Legislature, in S.B. 347, 1907-1908 S.L. p. 29, entitled, “An Act to Provide The Necessary Expenses of State Government and Making Appropriations Therefor From the State Treasury of Oklahoma” provided some $376,000.00 for the pay and expenses of thirteen named executive department officials, the Corporation Commission and the Supreme Court.
To be noted particularly, however, is the fact that H.B. 10, 1907-1908 S.L. 24, appropriated $100,000.00 for the per diem and expenses of the members of the first Legislature.
Other bills enacted during the same session supplemented the funds set aside for all those
As the Court in Thirteenth Guam Legislature v. Bordallo, Governor, 430 F.Supp. 405, 417 (D.C.1977), affirmed 588 F.2d 265 (9th Cir.) said, there is a “plethora of cases” so holding.33
purposes and appropriated funds for other purposes.
Through the years the Legislature has often enacted “Departmental Bills” with titles indicating funds were, by the respective bills, being appropriated for the operation of the “Legislative, Executive and Judicial Departments” e. g., S.B. 107, O.S.L.1923, p. 60, S.B. 240, O.S.L.1935, p. 359, and H.B. 14, O.S.L.1947, p. 631. However, the funds provided for operation of the Legislature apparently without exception were made available in separate bills.
From time to time the Legislature also has enacted “Institutional Bills” such as the one with which this Court was concerned in the Peebly v. Childers case.
The last time the Legislature enacted a semblance of a general appropriation bill was 1953. Commencing with the 1955 Session, all bills making appropriations of money apparently have been “separate bills, each embracing but one subject.” (
One bill, S.B. 715, O.S.L.1907-08, p. 264, authorized the transfer back to Oklahoma of convicts from the Lansing, Kansas, Penitentiary, created a Board to carry out provisions of the act, authorized it to “make and establish rules and regulations for the government, management and control of convicts,” gave the Board the authority to work convicts on “public roads, buildings and works” and appropriated $500,000 for the described transfer.
The Chief Executives likewise generally have followed the mandates of the Constitution. In Intervenor‘s, Board of Regents’ brief filed in Peebly v. Childers 95 Okl. at page 55, 217 P. 1049 are listed 4, 10 and 7 bills where Governors Cruce, Williams and Robertson respectively are said to have followed the practice of vetoing items only. No contrary instance has come to our attention.
Similarly this Court, as recited by Intervenor at page 56 of the same brief, citing Carter v. Rathburn, stated “all of our Governors have construed Section 12, Article 6, Constitution, as limiting their power to veto by disapproving by striking out entire items and that no one of the Governors has heretofore ever seriously con-
Some other jurisdictions permit reduction of items under constitutional provisions otherwise similar to ours but nevertheless hold the Governor still may not veto a qualification of an appropriation and the bill upon being approved otherwise, becomes law.34
Other jurisdictions with constitutional or organic act sections providing that the Governor need only return to the Legislature either entire bills vetoed or items of appropriation disapproved (and his approval of other items is not required for enactment)
tended that power vested in the Governor to reduce an item.” As argued by Senator Woods, amicus curiae, in Peebly, as a legislative officer, the Governor could no more reduce an item than could one branch of the Legislature without the concurrence of the other.
This Court until the present likewise has consistently followed the principle so announced in Peebly v. Childers. See Regents v. Trapp, 28 Okl. 83, 113 P. 910, 913 (1911); League v. Town of Taloga, 35 Okl. 277, 129 P. 702 (1913); Carter v. Rathburn, 85 Okl. 251, 209 P. 944 (1922); State v. Carter, 187 Okl. 421, 103 P.2d 518 (1940). As said in State v. Moore, 50 Neb. 88, 69 N.W. 373, 61 Am.St.Rep. 538, favorably quoted in Edwards v. Childers, 102 Okl. 158, 228 P. 472, 474 (1924), “The legislative, and not the executive, department of the state should say how much of the public funds should be expended for every purpose.”
Cases from other jurisdictions hold the Governor may not lawfully veto a general legislative provision of a general legislative bill, or a bill appropriating items, qualifying an item of appropriation included in the bill unless he vetoes the item and the bill upon approval otherwise becomes law despite the purported veto.36
Several earlier cases held that where the Governor otherwise approved the bill making appropriations, and the constitution or organic act did not permit item veto, attempts to veto items would fail and the bills become law.37
Some cases from certain other jurisdictions which have constitutional provisions unlike our Sections 11 and 12 of Art. VI, allowing the Governor to veto provisions of general legislation in general legislation bills, definitely are distinguishable and are not persuasive to our consideration of the present case.38
Other cases holding that the veto of some items and the attempt to reduce others, as in Mills v. Porter, and the veto of provisions qualifying items of appropriations without veto of the particular items as in State v. Holder, under constitutional provisions differing from ours, were not effective and that therefore the bills were not approved are considered to be distinguishable and not persuasive here.39 Likewise not deemed persuasive here are the holdings by another Supreme Court, pursuant to the constitutional provisions applicable in that jurisdiction, that the Governor‘s veto of a general legislative act is not an unqualified approval of a bill and it therefore fails of enactment.40
In Jessen, the Texas Legislature had included in the subject general appropriation bill a provision that an appropriation contained in the bill and bearing the specific approval of the Legislature for “Additions and Alterations to Law School” need not be approved by the “College Coordinating Board” as some other items had to be, before the funds could be obligated and spent for construction or major repair. Relying on purported veto of legislative waiver of Board approval, although the balance of the bill insofar as in pertinent here was approved by the Governor, Mr. Bullock, Texas Comptroller, refused to approve Jessen‘s $2500.00 claim for payment and mandamus issued.
The Texas Court under constitutional provisions reading just like ours, there held the Governor could lawfully veto only either an item or the whole bill; that the “rider” waiving College Coordinating Board approval and giving the Legislature‘s specific approval to expenditure of funds for construction and repair at the Law School “was intended merely to direct the use of those funds by giving express legislative approval to the projects specified,” was not “an item of appropriation,” that the Governor‘s attempt to veto it exceeded “the power granted to him,” “his actions therefore have no effect,” and the whole bill became law.
The opinion of the Supreme Court of Connecticut in a recent case involving a fact situation strikingly similar in essential aspect to that involved in our present case,
Caldwell v. Meskill, 164 Conn. 299, 320 A.2d 788, 793, 796 (1973) is most persuasive here. Section 4 of a bill there in suit appropriated an additional three million dollars to supplement funds already made available for assisting in operation of mass transportation facilities in Connecticut towns.
Section 2 of the bill provided that the Commissioner of Transportation, notwithstanding provision of one sub-section of a certain statute, “shall proceed in accordance with the provisions of” another subsection (granting the Commissioner several discretionary powers), “to ensure that motor carrier transportation facilities shall be operated in the manner required by the general welfare of the state.”
The Court there held the Governor‘s attempt to veto the quoted and other similar provisions of Section 2 which imposed general duties on the commissioner related to the whole appropriation but, as here, not restricted to particular items, was void and ineffectual and that the whole bill became law.
Likewise, some pertinent aspects of the 1974 New Mexico case of State ex rel. Sego v. Kirkpatrick, 86 N.M. 359, 524 P.2d 975, 983-985, 987 (1974) closely parallel our present situation. The Supreme Court there said the following language, to-wit: “None of the above appropriation [$688,800 to State Personnel Board] shall be spent for promulgating or filing rules, policies or plans which have significant financial impact or would require significant future appropriations to maintain without prior specific legislative approval“, which the Governor attempted to veto was not as respondents claimed, “an unconstitutional intrusion upon the executive rule making power” but rather, clearly was a “limitation . . . on the spending of funds from the appropriation for the promulgation or filing of rules” etc., “not the promulgation or filing thereof.” That Court said, apropos here,
ready created, etc. (
The Court in the same case likewise nullified an attempted veto of language of a prepositional phrase that “In categories wherein specifically authorized” that as applied to the appropriations under nine separately designated categories, “The department of finance and administration may approve budget increases in agencies in the category pursuant to” a designated statute. The Court held to permit the veto to stand would change the general provision applicable to the concerned appropriations in the General Appropriation bill (as distinguished from language effecting only items of appropriation), was void, ineffectual and became law, the bill having been otherwise approved.
As argued by petitioner,
We note that, outside of
In summary,42 as stated by Miss Beckman in her article “The Item Veto Power of the Executive“, 31 Temple L.Q. 27, 33 (1957), see note 31, this part, supra, it appears to be “clear that the invalid disapproval of a condition is a nullity, and the majority of the courts have found that the invalid veto does not destroy the item [condition] and that it
(3) that as stated by the Supreme Court of Idaho in Cenarrusa v. Andrus, Gov., 99 Idaho 404, 582 P.2d 1082, 1091 (1978) that State has a constitutional provision (
Similarly, the Supreme Court of New Mexico in State ex rel. Sego v. State, 86 N.M. 359, 524 P.2d 975, 982, 987 (1974), said, “The Governor may not distort, frustrate or defeat the legislative purpose by a veto of proper legislative conditions, restrictions, limitations or contingencies placed upon an appropriation and permit the appropriation to stand . . . [T]he attempted veto was invalid.” * * * “The final matter to be considered in these proceedings is respondent‘s contention that ‘a finding that the governor‘s veto authority has been unconstitutionally applied nullifies the Appropriation Bill [House Bill 300] as a whole.’ Respondents cite no authority for this contention, and we are not impressed with their arguments in support thereof. An unconstitutional veto must be disregarded and the bill given the effect intended by the Legislature.”
In the present case, the Governor‘s authority is not equal to that of the Legislature as in Wisconsin, see footnote 38. Instead, it extends only to vetoing either some objectionable item or the entire bill. In my view, H.B. 1567 as originally passed contained § 17 as a condition, qualification, restriction, the performance of which was required along with expenditure of the accompanying appropriation. To be borne in mind is the fact that the Legislature is not forbidden to enact such a provision if germane, and the Governor is not granted the authority to veto it.
To me, Section 17 was a lawful condition and qualification upon the several distinct items of appropriation to Department made in the bill. The unconditional approval oth- erwise by the Governor of H.B. 1567, despite what I conclude was an unauthorized, ineffectual and void attempt to veto § 17, pursuant to
I would concur in the assumption of original jurisdiction but would vote to issue writ of mandamus. I respectfully dissent.
RIFFE PETROLEUM CO., Appellant, v. GREAT NATIONAL CORP., INC., Appellee.
No. 51163.
Supreme Court of Oklahoma.
July 22, 1980.