Caldwell v. Meskill

• Decision Date: 24 January 1973
• Citation: 320 A.2d 788,164 Conn. 299
• Court: Connecticut Supreme Court
• Parties: J. Edward CALDWELL et al. v. Thomas J. MESKILL et al.

Page 788

320 A.2d 788

164 Conn. 299

J. Edward CALDWELL et al. v. Thomas J. MESKILL et al.

Supreme Court of Connecticut.

Jan. 24, 1973.

Joseph P. Flynn, Ansonia, for named plaintiff and others, with whom were Thomas F. Keyes, New Haven, for plaintiff City of New Haven, and John D. Mahaney, Waterbury, for plaintiff City of Waterbuty.

Raymond J. Cannon, Asst. Atty. Gen., with whom were Barney Lapp and Clement J. Kichuk, Asst. Attys. Gen., and, on the brief, Robert K. Killian, Atty Gen., for named defendant and others.

Francis J. McCarthy, Hartford, with whom was Richard R. Stewart, hartford, for intervening defendants Ives and others.

Before HOUSE, C.J., and SHAPIRO, LOISELLE, MacDONALD and BOGDANSKI, JJ.

HOUSE, Chief Justice.

This case concerns the validity and effect of a veto message delivered by the governor in which he disapproved two sections of the 1972 September Special Session House Bill No. 8022 and its statement of purpose and provisionally approved the three remaining sections of the bill. The plaintiffs, majority leaders of the 1972 General Assembly, the president pro tempore, the speaker and the cities of New Haven and Waterbury, instituted an action seeking a declaratory judgment as to whether the veto was valid, and, if not, what was the effect of the governor's action. The defendants are the governor, the secretary of the state, the commissioner of transportation and the comptroller. The minority leaders of the 1972 General Assembly were allowed to intervene as codefendants. The Superior Court, on the request of and with the consent of all the parties and the filing of a stipulation of facts, reserved the dispositive questions to this court. This court granted a motion to expedite a hearing on the reservation.

House Bill No. 8022 ¹ was passed by the General Assembly on September 19, 1972 and was duly presented to the governor. The statement of purpose appended to the bill indicated a legislative intention that the public service tax fund be used in the exercise of the transportation commissioner's powers under the provisions of § 13b-34 of the 1969 Supplement to the General Statutes and that the formula for the distribution of highway town aid be amended to provide for an increase in the grants to the towns. Section 1 of the bill contained a legislative finding that the operation of certain transportation facilities was in jeopardy, and that their operation was required by the general welfare of the state. Section 2, inter alia, directed the commissioner of transportation to exercise the authority granted in § 13b-34, as amended, of the General Statutes to ensure the operation of transportation facilities, stipulated to some extent the form of agreements to be made by the commissioner, and provided that expenditures incurred in carrying out the provisions of the enactment 'shall be charged to the resources of the public service tax fund available to the commissioner for such purposes.' The governor disapproved of these two sections of the bill and the statement of purpose. ²

The reserved question, ³ distilled to their essence, are whether the governor has the power to veto some sections of the bill and to leave others intact; if not, then what is the effect of his purported conditional veto of the entire bill; and whether the secretary of the state has the duty to record and certify the entire bill.

I

Article fourth, § 15, of the constitution of Connecticut confers on the governor the power to veto any bill passed by both houses of the General Assembly but confers no power to veto any bill except as an entirety. Patterson v. Dempsey, 152 Conn. 431, 436, 207 A.2d 739. Article fourth, § 16, confers a limited power of partial veto in the case of appropriation bills. He may 'disapprove of any item or items of any bill making appropriations of money embracing distinct items while at the same time approving the remainder of the bill.' Whatever power the governor has partially to veto any bill is derived solely from article fourth, § 16, of the constitution. Bengzon v. Secretary of Justice, 299 U.S. 410, 413, 57 S.Ct. 252, 81 L.Ed. 312; Patterson v. Dempsey, supra, 437-438, 207 A.2d 739.

Our decision of the reserved questions is governed substantially by the recent holdings of this court in Patterson v. Dempsey, supra. In that case the court had before it a factual situation similar in many respects to the present case. The governor had vetoed several sections of a bill that included both items of appropriation and general legislation. The vetoed sections were portions of the general legislation. Patterson v. Dempsey, supra, 152 Conn. 438, 207 A.2d 739. We held that even though the inclusion of general legislation in a bill also making appropriations violated § 2-35 ⁴ of the General Statutes, the governor nevertheless had no power on the grounds of that violation to veto the general legislation since the prohibition was statutory rather than constitutional in nature. In effect, the inclusion of both kinds of legislation in the same bill constituted a pro tanto repeal by implication. '(O)ne Legislature cannot control the exercise of the powers of a succeeding Legislature.' Patterson v. Dempsey, supra, 439, 207 A.2d 745.

A further issue crucial to the disposition of the present controversy was decided in the Patterson case. The question was presented as to whether the governor had the power to veto any item or items in a bill which made appropriations, or whether the power extended only to specific 'items of appropriations.' The court held that an 'item,' to be subject to the power of partial veto, must in itself be a specific item of appropriation. Patterson v. Dempsey, supra, 439-443, 207 A.2d 739. Although there is authority in other jurisdictions to the contrary, ⁵ we see no reason to reverse the clear holding of the Patterson case. The court recognized that to some extent such a holding circumscribes the authority of the governor, but '(i)f the governor were allowed to disapprove or veto parts of a bill involving general legislation, he could, in the case of many if not most such bills, by the exercise of that power, eliminate selected portions of a bill in such a manner as to change its meaning and thereby, in effect, enact an entirely different bill. This would usurp the legislative function, which is committed to the General Assembly alone. But such legislative action through the use of the veto power would be impossible if the veto power were restricted to distinct items of appropriation in a bill, whether that bill did, or did not, include other items of general legislation.' Patterson v. Dempsey, supra, 442, 207 A.2d 746; see also Opinion of the Justices, Del., 210 A.2d 852; In re Opinion of the Justices, 294 Mass. 616, 2 N.E.2d 789.

The court recognized in the Patterson case that the primary evil intended to be curbed by the power of partial veto is the practice of log-rolling: Presented with a bill containing many items of appropriation, the governor may accept the essential and reject the frivolous. The governor in this context may thus control the amount of expenditure, but not the purpose. How much is spent is conceptually different from how an amount is spent. Patterson v. Dempsey, supra, 152 Conn. 441-442, 207 A.2d 739; Bengzon v. Secretary of Justice, supra, 299 U.S. 414-415, 57 S.Ct. 252.

II

If the vetoed sections of House Bill No. 8022 constitute distinct items of appropriation, then, their veto by the governor was valid. If, however, the sections are general legislation, the partial veto power was exceeded and further consequences follow.

The term 'item of appropriation' in the context of the partial veto power was also construed in Patterson v. Dempsey supra, 152 Conn. 438, 207 A.2d 745: "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.' Bengzon v. Secretary of Justice, . . . 299 U.S. 410, 414, 57 S.Ct. 252, 81 L.Ed. 312. 'An item in an appropriation bill is an indivisible sum of money dedicated to a stated purpose.' Commonwealth v. Dodson, 176 Va. 281, 296, 11 S.E.2d 120.' An item of appropriation is a 'specific sum of money for a specified purpose. . . . These two factors are the essentials of an item.' Green v. Rawls, 122 So.2d 10, 16 (Fla.). The item must be 'distinct.' Wood v. State Administrative Board, 255 Mich. 220, 224, 238 N.W. 16. Language merely imposing restrictions or conditions on the expenditure of money is not subject to the veto power, since it is not in itself a 'distinctly specified sum.' Black & White Taxicab Co. v. Standard Oil Co., 25 Ariz. 381, 218 P. 139; Opinion of the Justices, supra.

It is not seriously contended that the vetoed sections would operate expressly to appropriate a stated sum of money. The defendants, however, press an argument that relies heavily on a line of cases beginning with State v. Staub, 61 Conn. 553, 23 A. 924, in which this court has recognized the duty of state officials to act pursuant to legislative mandates, regardless of specific appropriations. An unequivocal direction to act was deemed to imply an appropriation from the general fund sufficient to cover the cost of so acting. The specific holding in the Staub case was that mandamus might properly compel an official to perform purely ministerial duties that were mandated by statute. The court there said (p. 563, 23 A. 926): 'In the absence of a special appropriation, the existence of a law requiring the expenditure to be incurred is an appropriation of money for that purpose, and the law imposes on the comptroller the duty of settling and adjusting demands against the state for such expenses.' See also Dowe v. Egan, 133 Conn. 112, 48 A.2d 735; Cummings v. Looney, 89 Conn. 557, 95 A. 19; New Milford v. Litchfield County, 70 Conn. 435, 39 A. 796; Williams v. New Haven, 68 Conn. 263, 36 A. 61; ...