Gov't of the Virgin Islands & Cyril E. King v. Eleventh Legislature of the Virgin Islands & Senator & President of the Legislature

• Decision Date: 21 April 1976
• Docket Number: Civil No. 75-474
• Citation: 13 V.I. 53
• Parties: GOVERNMENT OF THE VIRGIN ISLANDS and CYRIL E. KING, GOVERNOR OF THE VIRGIN ISLANDS, Plaintiffs v. ELEVENTH LEGISLATURE OF THE VIRGIN ISLANDS and SENATOR AND PRESIDENT OF THE LEGISLATURE, ELMO D. ROEBUCK, ET AL., Defendants
• Court: U.S. District Court — Virgin Islands

13 V.I. 53

GOVERNMENT OF THE VIRGIN ISLANDS and CYRIL E. KING,GOVERNOR OF THE VIRGIN ISLANDS, Plaintiffs v. ELEVENTH LEGISLATURE OF THE VIRGIN ISLANDS andSENATOR AND PRESIDENT OF THE LEGISLATURE,ELMO D. ROEBUCK, ET AL., Defendants

Civil No. 75-474

District Court of the Virgin Islands Div. of St. Thomas & St. John

April 21, 1976

Action seeking injunctive relief and judgment declaring duties, rights and relationship of executive and legislative branches of government. The District Court, Christian, Chief Judge, held that where legislature passed appropriations bill consisting of single section with five subsections, each stating purpose of particular subsection, at end of which there was total appropriation sum stated, purpose of which appeared to be to hamper governor's item veto power by drafting appropriations bill wherein separate and distinct items of appropriation were combined under guise of single item appropriation bill, and governor exercised what he viewed to be item veto power authorized by Revised Organic Act in striking phrase from one subsection and deleting another entire subsection of bill, and governor's authorization enabled him to veto item or part of item only if measure contained several items of appropriation, item veto in each instance was properly exercised by governor.

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VERNE A. HODGE, ESQ., Attorney General of the Virgin Islands, St. Thomas, V.I., for plaintiff

ALFRED L. SCANLAN, ESQ. (JOHN TOWNSEND RICH), Washington, D.C., ALEXANDER A. FARRELLY, ESQ., (BIRCH, DEJONGH & FARRELLY), St. Thomas, V.I., ATTY.

MARIA TANKENSON HODGE, St. Thomas, V.I., for defendants

BORNN, FINUCAN & BRUNO (EDITH L. BORNN, of counsel), St. Thomas, V.I., amicus curiae

CHRISTIAN, Chief Judge

OPINION

This cause found its way before the Court initially on a complaint brought by the Government of the Virgin Islands and Cyril E. King, Governor of the Virgin Islands, as Plaintiffs. Named as Defendants are the Eleventh Legislature of the Virgin Islands, the President of that body, members of the Legislature in various capacities, and the Executive Secretary of the Legislature.

In their first cause of action of the two-count verified complaint the Plaintiffs sought injunctive relief, as well as a judgment declaring the duties, rights and relationship of the opposing parties vis-a-vis section 9(d) of the Revised Organic Act of the Virgin Islands.

Similar relief is sought in the second cause of action. There, however, the Plaintiffs challenge the validity of an enactment of the Legislature, Bill No. 6784, which the Governor had vetoed and returned to the Legislature with his message of disapproval. Acting pursuant to its recognized authority, the Legislature overrode the Governor's veto and the bill became law as Act No. 3718. Claiming that the Act impermissibly trenches on executive powers, the Governor has prosecuted the cause of action stated in Count II of the complaint.

The Defendants, in addition to denying the material allegations on each of the two counts pleaded by the Plaintiffs, have launched a two-pronged attack of their own, in the first count of which they challenge the validity of several items vetoed by the Governor of various seg-merits of several appropriations bills. While Defendants do not deny that the item veto power reposes in the Chief Executive, they vigorously assert that he has invalidly attempted its exercise in these instances. In the second count of their counterclaim Defendants seek a declaratory judgment to the effect that the Governor proposes to impound funds appropriated by and to the Legislature in Bill No. 6762 (Act No. 3709), and that any such impoundment would be an unlawful undertaking, the Chief Executive being wholly powerless so to do.

[1] Plaintiffs' first cause of action, to which we now return, has already been decided by this Court, a decision now on appeal before the United States Court of Appeals for the Third Circuit. We there held that under section 9(d) of the Revised Organic Act, properly construed, the Legislature is completely without authority to override an item veto of the Governor. Since making that judgment, and in connection with the resolution of the remaining disputes between these parties, the Court has found what it conceives to be additional buttressing for its ruling in the provisions of the numerous state constitutions examined by the Court in which the state governors are granted the item veto power. Without exception those state constitutions provide in language, taking one form or another, that the item veto of the Governor may be overridden by the Legislature in the same manner as his general veto of an entire bill.¹ This circumstance besides lending support to the Court's earlier ruling takes on added significance with respect to some of the issues yet to be decided in this cause. Clearly the Congress of the United States in legislating section 9(d) of the Organic Act of this territory must be deemed to have been fully aware ofthe many state constitutional provisions permitting the override of an item veto. By using language which unmistakably, in our view, withheld such power from the Legislature of this territory, the Congress must be taken to have, with deliberate intent, decreed that for reasons best known to itself this was the situation it desired for this territory at that time. In so doing the Congress has, with a strong degree of certainty, it seems to us, placed the Chief Executive of this territory at an advantage over the supposedly co-equal branch, the Legislature, a circumstance which we constantly must bear in mind as we sift through issues raised by pleadings of these parties, and discussed in their briefs.

[2] Threshold questions were raised by the Defendants but hardly pressed in their written arguments. Perhaps, sub silentio, this is a concession on their part that Plaintiffs' position is worthy of full merit. These questions raised by Defendants to which I have adverted, contest the propriety of the Government of the Virgin Islands as a party plaintiff, the Governor of the Virgin Islands as a party plaintiff, and the standing of the latter to maintain this suit. We deal quite briefly with these arguments and hold that for the various reasons stated in the briefs of the Plaintiffs the motions to dismiss on those asserted grounds must be and are denied.

[3, 4] Putting aside case authority which supports the Governor as a party plaintiff, he could, at a minimum properly maintain this suit in this jurisdiction as a taxpayer. Defendants, in their contention that the Government of the Virgin Islands is not a proper party, seem to say that the Governor lacks the authority to bring a suit in the name of the Government of the Virgin Islands. In disposing of this assertion, suffice to say that the Attorney General of the Virgin Islands, a member of the Governor's cabinet, whose name is subscribed to thecomplaint, manifestly has the authority to bring such a suit in the name of the Government of the Virgin Islands. We have already so held (see discussion of this matter in Memorandum Opinion, Government of the Virgin Islands, et al. v. Puerto Rican Cars, Inc., Civil No. 52/1970, filed February 8, 1971, pages 6-14).

At the outset it seems appropriate to set out in its entirety section 9(d) of the Revised Organic Act of the Virgin Islands.

Every bill passed by the legislature shall, before it becomes a law, be presented to the Governor. If the Governor approves the bill, he shall sign it. If the Governor disapproves the bill, he shall, except as hereinafter provided, return it, with his objections, to the legislature within ten days (Sundays excepted) after it shall have been presented to him. If the Governor does not return the bill within such period, it shall be a law in like manner as if he had signed it, unless the legislature by adjournment prevents its return, in which case it shall be a law if signed by the Governor within thirty days after it shall have been presented to him; otherwise it shall not be a law. When a bill is returned by the Governor to the legislature with his objections, the legislature shall enter his objections at large on its journal and, upon motion of a member of the legislature, proceed to reconsider the bill. If, after such reconsideration, two-thirds of all the members of the legislature pass the bill, it shall be a law. If any bill presented to the Governor contains several items of appropriations of money, he may object to one or more of such items, or any part or parts, portion or portions thereof, [while approving] the other items, parts, or portions of the bill. In such a case he shall append to the bill, at the time of signing it, a statement of the items, or parts or portions thereof, to which he objects, and the items, or parts or portions thereof, so objected to shall not take effect.

We are first confronted, then, with the proper interpretation of the last two sentences of that section. The matter is one of the first impression in this jurisdiction and we are therefore left at sea insofar as local precedent is concerned. Item veto language is not at all uncommon as we have seen. It fairly abounds in state constitutions, as itdid, and still does, in the basic laws of past and present territories of the United States, as well. None of those, however, which have been construed by the highest courts having jurisdiction, insofar as our research has revealed, are couched in precisely the same language as is our section 9(d). Consequently, resort to such sources, while of some persuasive force, offer no ineluctable guide, nor can they be considered as fast binding precedental authority. By way of illustration, we mention briefly two or three of the item veto provisions which have been urged on us in various contexts by one side or the other as controlling on certain of the issues. In re Opinion of the Justices, 2 N.E.2d 789 (...