Fairfield v. Foster

• Decision Date: 14 April 1923
• Docket Number: Civil 2150
• Citation: 25 Ariz. 146,214 P. 319
• Parties: CHARLES W. FAIRFIELD, as Auditor of the State of Arizona, Appellant, v. JAMES H. FOSTER, Appellee
• Court: Arizona Supreme Court

214 P. 319

25 Ariz. 146

CHARLES W. FAIRFIELD, as Auditor of the State of Arizona, Appellant, v. JAMES H. FOSTER, Appellee

Civil No. 2150

Supreme Court of Arizona

April 14, 1923

APPEAL from a judgment of the Superior Court of the County of Maricopa. Frank H. Lyman, Judge. Judgment reversed, with orders to dismiss action.

Mandamus by James H. Foster to require Charles W. Fairfield, as Auditor of the State of Arizona, to audit, allow, and draw a warrant on the state treasury. Judgment for plaintiff, and defendant appeals.

Reversed and remanded, with instructions to deny writ and dismiss action.

Mr John W. Murphy, Attorney General, and Mr. A. R. Lynch and Mr Earl Anderson, Assistant Attorneys General, for Appellant.

Messrs Baker & Whitney, for Appellee.

OPINION

LOCKWOOD, Superior Judge.

This is a proceeding in mandamus, commenced in the superior court of Maricopa county, praying that the state auditor be required to audit, allow and draw a certain warrant on the state treasury.

Plaintiff claims that his demand was made under the authority of subdivision 5, section 1, chapter 42, of the Session Laws of the Fifth Legislature of the State of Arizona, Special Session of 1922. Defendant answers, setting up that the particular provision of said chapter 42 relied on by plaintiff was vetoed by the Governor.

The record was brought to this court on a stipulation of fact, and it was agreed in said stipulation:

"That the only issue in this case is whether the Governor legally vetoed a part of subdivision 5 of section 1, chapter 42, Session Laws of the Fifth Legislature of the State of Arizona. The appropriation bill and the attempted veto of a part of the same was filed in the office of the secretary of state of the state of Arizona in due time, and are fully set out in pages 268-296 of said Session Laws."

While, of course, a stipulation of this kind cannot bind this court as to what the legal issues found in the record really are, yet there is no doubt that in this case it correctly states them.

The action is one of extreme importance to the state, involving, as it does, a delimitation of the veto power of the Governor. For this reason we have determined to consider it as though a matter of first impression in this jurisdiction, and review the case of Callaghan v. Boyce, 17 Ariz. 433, 153 P. 773, where the question presented herein was partially considered.

In order that we may do this properly, it is necessary that we first analyze the veto power and determine its nature. As is well known, our forefathers adopted most of their political institutions from England, adapting them to the changed circumstances under which they found themselves, and it is a notorious fact that the veto power granted the chief executives by the federal and various state Constitutions was originally based on a similar power exercised by the English sovereign.

Now this power, though exercised by an officer whose functions were principally executive, was essentially legislative in its nature. 1 Blackstone, Com. 361. And it has never been seriously questioned that the veto power of our Governors was of the same kind, though negative only in character. Blackstone, Constitutional Law, § 67; Cooley, Constitutional Law, 2d ed., 49; Stuart v. Chapman, 104 Me. 17, 70 A. 1069; State v. Deal, 24 Fla. 293, 12 Am. St. Rep. 204, 4 So. 899; State v. Junkin, 79 Neb. 532, 113 N.W. 256. Under our system of government in Arizona, it is as necessary that the Governor act on a law as that the legislature itself do so. Even though a bill carry unanimously in both houses, it must still go to the Governor for his approval or diapproval, and, in case of the latter, must follow the constitutional course before it becomes a law.

But this power, conferred by a Constitution, must be exercised only in the cases and the manner provided by that Constitution, and in Arizona it is governed by the provisions of section 7, article 5, of our fundamental law.

Examination of this section discloses that two kinds of veto are bestowed on our Governor. The first is the original, historic method, where he either approves or rejects the bill as a whole. This, of course, is simple, and requires no other explanation than that set forth in the Constitution itself. But in the last paragraph of the section is contained the special veto power under consideration here. It is as follows:

"If any bill presented to the Governor contains several items of appropriations of money, he may object to one or more of such items while approving other portions of the bill. In such case he shall append to the bill at the time of signing it, a statement of the item or items which he declines to approve, together with his reasons therefor, and such item or items shall not take effect unless passed over the Governor's objections as in this section provided."

It is obvious that the construction of this paragraph depends on the meaning given to the words "several items of appropriations of money."

Provisions of this general character, practically unknown in our various state Constitutions until near the time of the Civil War, are now found in almost every state in one form or another, and the different Governors have exercised the rights given thereunder freely. In spite of this fact, there are but few decisions on such constitutional provisions, and among these we find considerable difference, both in reasoning and conclusions. Attempts are generally made to base the decision on the precise language of the particular Constitution construed, but a careful examination of the reasoning in each case will disclose that the conclusion is really based on the view the particular court takes as to the general nature of the veto power and the purpose to be accomplished by the special constitutional provision.

These divergent views may be divided into three general classes:

First, where it is held that the Governor, acting in his legislative capacity, may lower, though he may not raise, the amount of a particular appropriation, as well as strike out the items entirely. Commonwealth ex rel. Elkin v. Barnett, 199 Pa. 161, 55 L.R.A. 882, 48 A. 976.

Second, where it is claimed that, though he must either approve or reject any amount mentioned as a whole, yet, when the legislature sets aside a named amount to a named purpose, even though it be included within a general amount and purpose also, each detailed amount is an "item" and subject to a special veto. People v. Brady, 277 Ill. 124, 115 N.E. 204; State v. Jones, 99 S.C. 89, 82 S.E. 882; Fulmore v. Lane, 104 Tex. 499, 140 S.W. 405-421, 1082.

Third, where it is held that the word "item" applies only to a general subject of appropriation, which must be approved or rejected as a whole, and that the naming by the legislature of special objects and amounts of expenditure within the general purpose does not present "items" which the Governor can strike out separately. Regents, etc., v. Trapp, 28 Okl. 83, 113 P. 910.

While it is true that courts cannot go outside of the plain, unambiguous language of a statute or Constitution to determine its meaning, yet when the highest courts of the different states disagree as to the interpretation of the same phrase, used in the same context, it seems to me it is a proper case for the application of the rule that, where the language is ambiguous, we may consider among other things, the meaning previously given it by co-ordinate branches of the government, and the evil it was intended to remedy.

Particularly is this true with constitutional provisions, for, since broad subjects must be covered therein with few words, it is impossible for their framers to state explicitly every detail or shade of meaning intended. 12 Corpus Juris, p. 700, and cases cited.

So far as construction placed on it by co-ordinate branches of the government is concerned, we can get but little light. Our Constitution has been in force for only eleven years, and it is probable any action taken by the Governor since 1915 has been based on the decision in Callaghan v. Boyce, supra. It does not seem the argument of counsel that the State Financial Code defines what shall be considered an "item" needs much consideration. Laying aside the fact that this interpretation was immediately challenged by the executive branch of the government in the exercise of the veto power which is questioned in this very case, while it is true that legislative construction of a Constitution is sometimes given weight, particularly if that construction has been acquiesced in for many years, yet where it involves the limiting of the constitutional control of a co-ordinate branch of the government over the act of the very body which adopts the construction, I think the old rule of law that "no man should sit as judge in his own case" is very applicable.

We therefore should resort for our principal source of guidance to the apparent purpose of the framers of the Constitution, and here we can have but little doubt of the evil they foresaw, and how they desired to meet it. It is a matter of common notoriety that the reasons which placed this clause in our Constitution were the same as those which caused its insertion in every one which has a similar one -- reasons which have been again exemplified in the last session of the Congress of the United States.

I cannot better illustrate them than by the language of the court in Commonwealth ex rel. Elkin v. Barnett, supra:

"The legislature, in framing and passing a bill, had full control over every subject. . . that it contained, and the Governor as a co-ordinate branch of the law-making power, was entitled to at least a negative of the same extent. But by joining a number of different subjects in one bill the...