State v. Holder

76 Miss. 158 | Miss. | 1898

Lead Opinion

Woods, C. J.,

delivered the opinion of the court.

The most difficult and delicate duty that ever falls to the lot of the court of last resort is ours to-day. In interpreting various provisions of our constitution, we are called upon to declare the boundaries beyond which executive action may not pass, and to fix the limitations upon the executive authority to veto the declared will, of both houses of the legislature.

On the eighth day of February, 1898, the following bill was passed by the house of representatives, viz.:

AN ACT to appropriate money for the support and maintenance of the industrial institute and college for the years 1898 and 1899.

“ Section 1. Be it enacted by the Legislature of the State of Mississippi, That the following sums of money be, and the same are hereby, appropriated out of any money in the treasury not. otherwise appropriated, for the support and maintenance of the industrial institute and college: For salaries of teachers and officers for the year 1898, $20,190; for the year 1899, $20,190; for extending sewer, $1,600; for painting building and repairs, $1,000; trustees’ meetings, commencement exercises, printing, etc., $800.

“All of said amounts to be drawn by draft of the president of the college, approved by the governor and the auditor of public accounts, and the auditor shall issue his warrant on the state treasurer for said several sums; Provided, That no part of the money hereby appropriated for wages or salaries shall be available unless the board of trustees shall first adopt and enact rules and by-laws to the following effect: (1) Conferring upon the president of the college the power to recommend to the board of trustees all the teachers who may hereafter be employed, and to select and remove other employes who are not teachers, and giving the president the authority, for sufficient cause, in his discretion to remove or suspend any member of the faculty subject to the approval of the trustees. (2) Conferring upon the president of the college the authority, subject to the approval of the trustees, to arrange and specify the course of study and to fix the schedules of studies and classes, and to establish rules of discipline for the government of the pupils. (3) By-laws providing for equal dormitory privileges to all pupils, whether taking industrial or academic courses, singly or together, and by-laws to enforce the faithful discharge of duties of all officers, professors or employes, and before the auditor shall issue any warrant under this act the board of trustees shall file with the auditor a certified copy of their action complying with the above conditions. All of said. money to be expended under the direction or approval of the trustees of the college and a report of the expenditures made to the legislature. ’ ’

This bill passed the senate February 9, 1898, and was duly presented to the governor for his action. On February 11, 1898, the governor made this indorsement and qualified approval upon the bill, in words following, and thereafter, on •the same day, caused the same to be filed in the office of the-secretary of state, viz.:

£ £ I approve that part of this bill preceding the word £ provided ’ in the first section, and I approve the suggestion in said section that by-laws provide for equal dormitory privileges to all pupils, whether taking industrial or academic courses, singly or together, and I approve that part of said section providing for the expenditures of said money under the direction or approval of the trustees, and for report thereof to the legislature, and I approve section 2. The other parts, by authority of section 73 of the state constitution, I disapprove.

££ 10:45 a.m., February 11, 1898.”

The sections of the constitution necessary to be at all considered are sections 69, '72, and 73, and they are as follows, respectively, viz.:

££ Sec. 69. General appropriation bills shall contain only the appropriations to defray the ordinary expenses of the executive, legislative and judicial departments of the government; to pay interest on state bonds and to support the common schools. All other appropriations shall be made by separate bills, each embracing but one subject. Legislation shall not be engrafted on appropriation bills, but the same may prescribe the conditions on which the money may be drawn, and for what purposes paid. ’ ’

££Sec. 72. Every bill which shall pass both houses shall be presented to the governor of the state. If he approve he shall sign it; but if he does not approve, he shall return it, with his objections, to the house in which it originated, which shall enter the objections at large upon its journal and proceed to reconsider it. If, after such reconsideration, two-thirds of that house shall agree to pass the bill, it shall be sent, with the objections, to the other house, by which likewise it shall be reconsidered, and, if approved by two-thirds of that house, it ¡shall become a law; but in all such cases the votes of both ¡houses shall be determined by yeas and nays, and the names of persons voting for or against the bill shall be entered on the journal of each house respectively. If any bill shall not be returned by the governor within five days (Sundays excepted) after it has been presented to him, it shall become a law in like manner as if he had signed it, unless the legislature, by adjournment, prevent its return, in which case it shall be a law unless sent back within three days after the beginning of the next session of the legislature. No bill shall be approved when the legislature is not in session.

“Sec. 73. The governor may veto parts of any appropriation bill, and approve parts of the same, and the portions approved shall be law. ’ ’

Section 73 of the constitution relates to general appropriation bills, or those containing several' items of distinct appropriations—that is to say, special appropriation bills, with distinct items of appropriation. It applies to such as are made up of parts and consists of portions separable from each other as appropriations. It was not designed to enable the governor to veto objectionable legislation in appropriation bills, for that is provided for in section 69. Section 73 was framed with a view of guarding against the evils of omnibus appropriation bills, securing unrighteous support from diverse interests, and to enable the governor to approve and make law some appropriations, and to put others to the test of securing a two-thirds vote of the legislature as the condition of becoming law. Thus viewed, section 73 is eminently wise, and will prove useful in •practice as corrective of an evil, but if a single bill, making one whole of its constituent parts, “fitly joined together,” and all necessary in legislative contemplation, may be dissevered by the governor, and certain parts torn from their connection may be approved, and thereby become law, while the other parts, unable to secure a two-thirds vote in both houses, will not be law, we shall have a condition of things never contemplated, and appalling in its possible consequences.

Every bill of the character in question has three essential parts: The purpose of the bill, the sum appropriated for the purpose, and the conditions upon which the appropriation shall become available. Suppose a bill to create a reformatory for juvenile offenders, or to build the capitol, 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 vote of both houses ? This would be monstrous. The executive action alone would make that law which had never received the legislative assent. And after all and despite the pragmatic utterances of political doctrinaires, the executive, in every republican form of government, has only a qualified and destructive legislative function and never creative legislative power. If the governor may select, dissect, and dissever, where is the limit of his right? Must it be a sentence or a clause, or a word ? Must it be a section, or any part of a section, that may meet with executive disapprobation ? May the governor transform a conditional of a contingent appropriation into an absolute one in disregard and defiance of the legislative will ? That would be the enactment of law by executive authority without the concurrence of the legislative will and in the face of it. The true meaning of section 73 is that an appropriation bill made up of several parts—that is, distinct appropriations, different, separable, each complete without the others, which may be taken from the bill without affecting the others, which may be separated into different parts complete in themselves—may be approved and become law in accordance with the legislative will, while others of like character may be disapproved and put before the legislature again, dissociated from the other appropriations. To allow a single bill entire, inseparable, relating to 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 others 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.

The bill in question is an entire thing, inseparable in its provisions and to be approved or disapproved as such, and not having been signed as a whole, was not made law by the partial and qualified approval which it received. It cannot be law, for that would be to make law of what has not been concurred in by the legislature and the governor.

Section 69 of the constitution does not forbid all legislation in appropriation bills. It prohibits general, foreign and incongruous legislation, but distinctly authorizes legislation prescribing conditions on which money appropriated may be paid out. Restricting the prohibition of section 69 and the provision of section 73 to general appropriation bills, or bills containing distinct and separable items of appropriation, all difficulty is removed, harmony is established, and the several provisions made intelligible and useful.

The idea of section 73 was probably borrowed from the constitution of the Confederate States, where plainly different appropriations were had in view, and it seems irrational to apply it to other and different appropriations. If section 72, which requires bills vetoed by the governor to be returned to the house in which they originated, does not apply to bills parts of which are approved and parts disapproved under section 73, our interpretation of these sections is powerfully strengthened. It is by section 72, if at all (as to which we are required to say nothing), that the parts vetoed are to be submitted to the legislature. Section 72 speaks of a bill in its entirety, it appears, and may not be applicable to the state of case contemplated by section 73. If the vetoed parts of a bill are not required to be submitted to the legislature (as to which we express no opinion), then the governor’s approval of parts of a bill, and his disapproval of other parts, may make that law which.the legislative will never sanctioned, and which, by a two-thirds vote of both houses, the proper law-making power was ineffective to prevent becoming law.

The signing of the bill by the governor was qualified in the act and on the enrolled bill, and did not become law, in part, because it was not an approval of parts and disapproval of parts of such a bill as is in view in section 73 of the constitution, the bill in this case, in the parts vetoed, not being an appropriation bill within its meaning, and not being a veto of parts of distinct and separable appropriations. To hold that the bill became law as a whole would be to make it so without the governor’s approval, and in the face of his disapproval of the conditions. Both legislative declaration and executive approval are essential prerequisites to the enactment of any law.

The action of the governor having been unconstitutional, and therefore void, his action in dealing with the bill was á nullity, but, the legislature having adjourned within five days after the presentation of the bill to the governor, the bill, in legal contemplation, must be held to be yet in the hands of the governor, and may become law unless sent back by him within three days after the beginning of the next session of the legislature. It follows from these views that the judgment of the court below must be

Affirmed.

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Dissenting Opinion

Terral, J.,

dissenting.

The act of the legislature of 1884, creating and establishing the Industrial Institute and College for the education of white girls, vested in the board of trustees thereof certain powers for the government and control of said institution; the appropriation bill for said Industrial Institute and College, passed on February 11, 1898, enacted that the sums of money for the payment of the salaries of the teachers and officers of said college should not be audited until the trustees of said college should enact by-laws granting said powers of government, or a large part of them, to the president of the college. The governor approved the appropriations of the bill, but vetoed those parts of the bill which required the trustees to enact by-laws vesting their own powers in the president of the college. An application for the warrant of the auditor for the salaries of the teachers and officers of the college has been made upon the auditor, and he refuses to audit said claim because of the want of the certificate of said board of trustees that they have enacted by-laws in compliance with the parts of the appropriation bill vetoed by the governor.

Upon this statement of the case, the question is whether the teachers and officers of the college, who have earned their respective salaries, and have furnished proper vouchers therefor, are entitled to a warrant or warrants for such salaries. Section 69 of the constitution provides: “ Legislation shall not be en-grafted on appropriation bills, but the same may prescribe the conditions on which the money may be. drawn, and for what purpose paid. ’’ Section 73 provides: ‘ ‘ The governor may veto parts of an appropriation bill, and approve parts of the same, and the parts approved shall be law.”

If the proviso of this bill be mere legislation, it must have been void, without the governor’s veto, by the force of section 69 of the constitution, otherwise the clause, that ‘ £ legislation shall not be engrafted on appropriation bills, ’ ’ would be nugatory and of no effect. Whether the proviso in the act before us, by the mere use of the word “ provided,” makes the subject-matter of the proviso a condition within the meaning of that term as used in section 69, and so subject to legislative imposition upon an appropriation bill, depends upon the meaning of the phrase, ‘ ‘ may prescribe the conditions on which the money may be drawn. ” I think it evident that the proviso in this bill is not a condition, within the meaning of section 69. The clause, £ £ may prescribe the condition under which the money may be drawn, and for what purpose paid, ’ ’ has reference, in my judgment, to satisfactory proofs of the legality of the claims presented for payment, and to the security of the vouchers offered therefor.

It is a principle of law in this state that no person, for any service however great and meritorious, can have a claim upon the public treasury, unless such claim be expressly provided for by statute, nor will it be allowed until the prescribed proof of it be presented to the court or the auditing officer. I think any provision of an appropriation bill which is intended to secure the payment of the claim only to the persons entitled thereto, and only on proof of the validity of such claim, and providing a voucher for the payment, would be conditions within the purview of section 69, and so inseparably connected with the appropriation itself that a veto of the conditions would destroy the whole bill. And I am content to believe that such are the conditions contemplated in section 69, for, if the meaning of it be stretched to include the vetoed parts of this appropriation bill, it is apparent that there is a repugnancy between the quoted clauses which renders them self-destructive. I look upon the vetoed parts of this bill as mere legislation, and as being, therefore void, or, if not ipso facto void, nullified by the veto of the governor.

The legislation which may not be engrafted on appropriation bills appears to me to be any matter not germane to such bills, nor designed to effect the purpose of having the money reach the person entitled to it: that the purposes to be accomplished by the vetoed parts of the bill is mere legislation is apparent. The powers and authorities, required by the vetoed parts of this appropriation bill to be conferred by the trustees upon the president of the college, were vested in these trustees by.the legislative act of 1884, and nothing of less force than a legislative act can divest them out of such trustees and vest them in the president of the college. It was not competent for the legislature, at its special session, to amend or alter the act of 1884, establishing the Industrial Institute and College, and it is evident that the legislature could not confer power on the board of trustees of the college to do what itself could not do. I am fiimily impressed that the governor has only exercised, in this matter, a constitutional prerogative, and if the college needs amendatory laws, it must wait with others for the time fixed by the constitution for their enactment. Section 73 of the constitution is wisely intended to prevent the evils of forcing legislation upon the country which could not be passed in the ordinary way, by tacking provisos to effect such purposes upon appropriation bills, and its beneficent purposes should be cherished and secured.

I am of opinion that the teachers -and officers of the college, upon the case made, are entitled to the relief sought at the hands of the court.