Arnett v. Meredith

• Decision Date: 04 November 1938
• Citation: 275 Ky. 223,121 S.W.2d 36
• Parties: ARNETT, Secretary of State, v. MEREDITH, Atty. Gen.
• Court: Kentucky Court of Appeals

121 S.W.2d 36

275 Ky. 223

ARNETT, Secretary of State, v. MEREDITH, Atty. Gen.

Court of Appeals of Kentucky

November 4, 1938

Appeal from Circuit Court, Franklin County.

Action by Hubert Meredith, Attorney General, against Charles D Arnett, Secretary of State, for a declaratory judgment directing defendant to furnish the public printer a copy of a bill passed by the General Assembly to be printed as a law of the Commonwealth. Judgment for plaintiff, and defendant appeals.

Affirmed.

S. H Brown, of Frankfort, for appellant.

Hubert Meredith, Atty. Gen., in pro. per., and Jesse K. Lewis, Asst Atty. Gen., for appellee.

THOMAS Justice.

At its regular 1938 session the General Assembly of this Commonwealth passed an act, chapter 275, amending and re-enacting section 551 of Baldwin's 1936 Revision of Carroll's Kentucky Statutes, which is a part of the chapter dealing with corporations. It was House Bill No. 189 and Senate Bill No. 44. After its final passage by both houses it was sent to the Governor for his approval or disapproval, but he did not attempt to act upon it until after the session of the Legislature had adjourned sine die. Before the time expired within which he might exercise his right of veto, or of express approval, he wrote on the bill as delivered to him, and subscribed his name officially thereto, these words: "This bill is hereby vetoed, this March 11, 1938".

Section 2438 of the same statutes imposes certain duties on the Attorney General of the Commonwealth with reference to printing of the acts passed by the General Assembly, and appellee and plaintiff below as such officer, conceiving that the Governor had not legally exercised his right of veto of the involved act, demanded of the Secretary of State a copy thereof to be published by plaintiff in discharge of his duties imposed by the statute. The request was refused followed by this declaratory judgment action filed by plaintiff in the Franklin circuit court against appellant and defendant below, Charles D. Arnett, the present Secretary of State for the Commonwealth of Kentucky.

The petition set out all the facts necessary to raise the only question involved in the case, which is: Whether or not the inserted and subscribed statement made upon the act by the Governor complies with his authority as defined by and set forth in section 88 of our Constitution? The prayer of the petition says: "Wherefore, plaintiff asks this Court for a declaratory judgment directing said Charles D. Arnett, Secretary of State, to furnish the public printer a copy of said bill for the purpose of having same printed as a law of this Commonwealth and he prays for all proper relief in the premises." The learned trial judge of the Franklin circuit court sustained the prayer of the petition and adjudged: "That the attempted veto by the Governor of Kentucky of House Bill No. 189 and copied in full in the petition herein was ineffective and illegal for the reason that his attempted veto thereof was not accompanied by a veto message as required by Section 88 of the Constitution of Kentucky." From that judgment defendant prosecutes this appeal.

Section 88 of our Constitution, in conferring power and authority on the Governor to approve or disapprove acts passed by the General Assembly, says: "Every bill which shall have passed the two houses shall be presented to the governor. If he approve, he shall sign it; but if not, he shall return it, with his objections, to the house in which it originated, which shall enter the objections in full upon its journal, and proceed to reconsider it. If, after such reconsideration, a majority of all the members elected to that house shall agree to pass the bill, it shall be sent, with the objections, to the other house, by which it shall likewise be considered and if approved by a majority of all members elected to that house, it shall be a law; but in such case the votes of both houses shall be determined by yeas and nays, and the names of the members voting for and against the bill shall be entered upon the journal of each house respectively. If any bill shall not be returned by the governor within ten days (Sundays excepted) after it shall have been presented to him, it shall be a law in like manner as if he had signed it, unless the general assembly, by their adjournment, prevent its return, in which case it shall be a law, unless disapproved by him within ten days after the adjournment, in which case his veto message shall be spread upon the register kept by the secretary of state. The governor shall have power to disapprove any part or parts of appropriation bills embracing distinct items, and the part or parts disapproved shall not become a law unless reconsidered and passed, as in case of a bill."

Section 27 of the same Constitution divides the powers of government of this Commonwealth into three distinct departments--the legislative, the executive and the judicial, and section 28 says: "No person, or collection of persons, being of one of those departments, shall exercise any power properly belonging to either of the others, except in the instances hereinafter expressly directed or permitted". In the case of Sibert v. Garrett, 197 Ky. 17, 246 S.W. 455, we designated such divisional structure as the "American Tripod form of Government", since the Federal Constitution and those of every state in the Union prescribe therefor in terms substantially the same as expressed by section 27 of our Constitution. Likewise a majority of State Constitutions also contain the negative terms found in our inserted section 28, supra.

All American courts before which the question has been submitted for determination--as well as all text writers on the subject--unanimously hold that the exercise by the Governor of the veto power conferred upon him by the local Constitution is a legislative act and involves an encroachment by the executive department upon the functions of the legislative department, and which is one of the exempted "instances hereinafter expressly directed or permitted", as is contained in section 28, supra, of our Constitution.

An example of the universal statement of text writers substantiating the above statement is found in 59 C.J. 575, section 101, saying: "Under the system of government adopted in this country the chief executive, either the president or a governor, is a part of the law-making power; and while engaged in considering bills which have been passed by the legislature and which are presented to him for approval or disapproval, the governor is acting in a legislative capacity, or is exercising a power which is essentially legislative in character, and is not acting in an executive capacity." Numerous cases from different courts are cited on page 576 of that volume--in notes 94 and 95 thereto--in support of that statement, among which is the case of Cammack v. Harris, 234 Ky. 846, 29 S.W.2d 567. The reader may readily locate those cases by consulting the reference page without our incumbering the opinion with their recitation. However, it truthfully may be said that there is no dissent with the courts or text writers on the correctness of the proposition, i. e., that the exercise of the right of veto, wherever it is conferred by the local Constitution, involves the performance of legislative functions instead of executive functions. Perhaps no principle embodied in our Constitution (and also in those of other states) is more emphatically cherished and guarded than that of the division of the government provided by the Constitution into the three separate branches, supra; and, therefore courts unanimously announce the rule to be that all provisions for such permitted encroachments by one department in the exercise of functions properly belonging to another, that may be found in the Constitution, are not only mandatory, but should be strictly construed.

The text in volume 1 of Cooley's Constitutional Limitations, 8th Edition, beginning on page 320 substantiates what we have thus far said with reference to the nature and character of the veto power conferred upon the Governor, and on page 324 of the same volume the learned author says: "A constitutional provision requiring the governor, if he desires to effect the veto of a bill, to file the bill, with his objections thereto, in the office of the Secretary of State, within a prescribed period after the adjournment of the legislature, is mandatory, in respect to both the time and the manner of exercising the power."

The West Virginia case of Capito v. Topping, 65 W.Va. 587, 64 S.E. 845, 22 L. R.A., N.S., 1089, is cited in support of that text. That opinion is a learned one and we commend it to all those interested in the questions discussed. The question involved in that case substantially parallels the one involved in the instant one, and in speaking of the rule that should be followed by courts in interpreting such constitutional provisions as is here involved the West Virginia court said [page 847]: "So they [such constitutional provisions] necessarily stand on a much higher plane than mere statutes, and the courts as a rule do not feel warranted in upholding deviations from them in respect to the manner and time of the performance of acts prescribed or required by them. Wolfe v. McCaull [supra], 76 Va. 876; Cooley, Const.Lim. (7th Ed.) 114, 219; Lewis' Suth. Stat. Con. § 164, p. 109."

All other authorities are to the same effect and we have found none to the contrary, nor has any been cited to us in briefs of counsel. The West Virginia opinion continues: "Tested by its terms, the clause under consideration [the one...