Commonwealth v. Dodson

Decision Date14 October 1940
Citation11 S.E.2d 120
PartiesCOMMONWEALTH. v. DODSON, Clerk of House of Delegates.
CourtVirginia Supreme Court

[COPYRIGHT MATERIAL OMITTED].

[COPYRIGHT MATERIAL OMITTED].

HUDGINS, J., dissenting in part.

Mandamus proceeding by the Commonwealth of Virginia, on the relation of its Attorney General, against E. Griffith Dod-son, Clerk of the Llouse of Delegates, etc.

Writ of mandamus granted in accordance with opinion.

Argued before CAMPBELL, C. J., and HOLT, HUDGINS, GREGORY BROWNING, EGGLESTON, and SPRATLEY, JJ.

Abram P. Staples, Atty. Gen., Joseph L. Kelly, Jr., Asst. Atty. Gen., and Walter E. Rogers, Sp. Asst. Atty. Gen., for petitioner.

Tazewell Taylor, of Norfolk, C. O'Con-or Goolrick, of Fredericksburg, Frank W. Rogers, of Roanoke, and Leon M. Bazile, of Richmond, for respondent.

HOLT, Justice.

At the 1940 Session of the General Assembly there was passed an appropriation bill covering the fiscal years ending June 30, 1941, and June 30, 1942, respectively. The title reads:

"An Act to appropriate the public revenue for the two years ending respectively on the thirtieth day of June, 1941, and the thirtieth day of June, 1942, to prescribe the provisos, terms, conditions and provisions with respect to the items of appropriation, and their payment, and to repeal all acts wholly in. conflict with this act, and all parts of all acts-inconsistent with this act to the extent of such inconsistency."

This undisputed statement is taken from respondent's brief: The General Assembly passed the appropriation act, which has been printed as Chapter 425 of the Acts of 1940. This bill was submitted to the Governor on March 23, 1940, on or about the hour at which the General Assembly for 1940 adjourned sine die. The Governor was, therefore, afforded no opportunity to return the bill to the House in which it originated with his objections thereto. The Governor, after examination of the bill, reaching the conclusion that seven certain items thereof were in violation of section 52 of the Constitution, proceeded to veto them and, after having done so, approved the remainder of the bill. These items are set forth in full in the petition and designated as Veto No. 1, Veto No. 2, Veto No. 3, Veto No. 4, Veto No. 5, Veto No. 6, and Veto No. 7. Other defenses are urged, and it is also contended that certain items vetoed are "items" which the Governor is given power to disapprove by a provision in section 76 of our Constitution.

All this the petitioner, the Commonwealth, at the relation of its Attorney General, has challenged. The time, man-ner and form of these vetoes is not questioned.

First we are to determine the power given to the Governor by this excerpt from our Constitution, said section 76, which declares that "the governor shall have the power to veto any particular item or items of an appropriation bill, but the veto shall not affect the item or items to which he does not object."

We are dealing with an appropriation bill. The Governor is given power to veto any item or items thereof, subject to this limitation noted: " * * * but the veto shall not affect the item or items to which he does not object."

If he were given power to veto an item without more, plainly such a veto would not affect an appropriation bill otherwise unconditionally approved. This limitation cuts down the items which may be vetoed but does not change or qualify its effect. The bill with an unconditional approval, together with valid vetoes, becomes a valid statute. The effect of vetoes not authorized will be considered later.

This illustration serves to show the application of this limitation and its wisdom:

If the Commonwealth were to determine to erect a library building and were to set apart a certain sum for structural steel, another for a heating plant, etc., and were finally to provide for a supervising architect at a stated salary, plainly the Governor could not, by veto, dispense with the services of an architect, although the sum to be paid for his services might, in a limited sense, be regarded as an item. That term, as used in the Constitution, refers to something which may be taken out of a bill without affecting its other purposes or provisions. It is something which can be lifted bodily from it rather than cut out. No damage can be done to the surrounding legislative tissue, nor should any scar tissue result therefrom.

What does "item" mean? It has been defined in Juan Bengzon v. Secretary of Justice & Insular Auditor, 299 U.S. 410, 57 S.Ct. 252, 253, 81 L.Ed. 312, 313.

The Philippine Retirement Gratuity Law provided for the payment of a retirement gratuity to certain officers of the insular government, including justices of the peace, among whom was the petitioner. This was to be paid out of any fund in the insular treasury not otherwise appropriated. That act was approved by the Governor-General, who, ' however, vetoed this provision:

"The Justices of the Peace who must relinquish office during the year nineteen hundred and thirty-three in accordance with the provisions of Act numbered Thirty-eight hundred and ninety-nine, shall also be entitled to the gratuities provided for in this Act."

The Organic Act conferred upon the Governor-General ordinary veto powers, but in it was this provision:

"The Governor General shall have the power to veto any particular item or items of an appropriation bill, but the veto shall not affect the item or items to which he does not object." 48 U.S.C.A. § 1052.

The language of our Constitution, as we have seen, is that the "veto shall not affect the item or items to which he does not object." Indeed, one provision seems to have been copied from the other.

The court itself tells us what it had to decide: "Did the bill which became Act 4051 constitute an appropriation bill; and, if so, was section 7 [the section vetoed], within the meaning of the foregoing provision of the Organic Act, an item of such bill?"

The court said that it was not an appropriation bill. It also said:

"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 of its use, becomes non-effective."

It then went on to tell us what considerations govern in determining whether or not a provision is an item within the purview of the Constitution:

"If the Governor-General had power under the foregoing clause of section 19 of the Organic Act to veto section 7 of the gratuities bill, he had like power to veto section 2, granting preferences to certain classes of officers and employees; or section 4, allowing a choice between the gratu-ity granted by the act under review and a gratuity granted by some other act; or section 5, according a right of succession to unpaid gratuities in case of death; or section 6, providing for conditional reappointment of persons separated or retired under the act; or to veto as many of them as he saw fit. No more than any of the designated section does section 7 constitute an item of apropriation. All of them are distinct parts of an act of general legislation. The elimination of any by an exercise of the veto power, with the going into effect of the remaining portions of the bill as a consequence (if the veto be not overruled by a two-thirds vote of each house), would result in the enactment of a general law in an emasculated form not intended by the Legislature and against the will, perhaps, of a majority of each house. This would not be negation of an item or items of appropriation by veto but, in effect, affirmative legislation by executive edict.

"So, even if it be conceded that the bill could be characterized as an appropriation bill, section 7 is not an 'item' within the meaning of section 19 of the Organic Act. An item of an appropriation bill obviously means an item which in itself is a specific appropriation of money, not some general provision of law which happens to be put into an appropriation bill. Provisions granting power to the executive to veto an item or items of an appropriation bill are to be found, in various forms of expression, in many of the state constitutions. Their object is to safeguard the public treasury against the pernicious effect of what is called 'log-rolling--by which, in order to secure the requisite majority to carry necessary and proper items of appropriation, unnecessary or even indefensible items are sometimes included."

In support of its conclusions it cites with approval State v. Holder, 76 Miss. 158, 180, 181, 23 So. 643, 644, and calls attention to the fact that the Constitution of Mississippi gave to the Governor power to veto parts of any appropriation bill. "Parts" is a word capable of wider application than "item" or "items, " yet it did not give to the Governor power to veto an objectionable provision. In that case, the Mississippi Legislature made an appropriation for the Industrial Institute & College, setting apart certain sums for certain appropriate purposes but declared that payments to officers and employees should not be available unless the power of approval should be conferred upon the president by the board of trustees. This provision, as to the president, the Governor vetoed. The court said that he had no power to transform a contingent or conditional appropriation into an absolute one and that the power given "was not designed to enable the governor to veto objectionable legislation in appropriation bills, " and that this power applied to parts so separable and complete within themselves that they may be taken from the bill without affecting others.

The Bengzon case, though late (decided January 4, 1937), is now leading. It is a decision of all the justices who sat. Mr. Justice Stone did...

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