Miller v. Walley

• Decision Date: 24 May 1920
• Docket Number: 21372
• Citation: 122 Miss. 521,84 So. 466
• Court: Mississippi Supreme Court
• Parties: MILLER, Auditor, v. WALLEY

84 So. 466

122 Miss. 521

MILLER, Auditor, v. WALLEY

No. 21372

Supreme Court of Mississippi

May 24, 1920

March 1920

1 STATUTES. Act appropriating funds for support of charity hospital, and providing that superintendent should devote entire time to the office, held broader than constitutional provsion; when act does not become law stated.

House Bill No. 122, passed by the legislature and vetoed in part and approved in part, providing in section 1 "that the sum of forty-five thousand dollars for the year 1920 and a like amount for 1921 be and the same is hereby appropriated out of any money in the state treasury not otherwise appropriated, for the support and maintenance of the State Charity Hospital at Jackson, Mississippi: Provided, that this hospital shall be used only for charity patients: Provided further, that the superintendent shall devote his entire time to the duties of his office." is broader in meaning than section 267 of the state Constitution, providing that "no person elected or appointed to any office or employment of profit under the laws of this state... shall hold such office or employment without personally devoting his time to the performance of the duties thereof;" and said bill having failed to receive the Governor's approval, and not having been in his possession five day before the adjourment to the legislature did not become a law.

2 STATES. Constitutional provision relative to time to be devoted by public officers to their duties construed "devoting his time."

Section 267, providing that "no person elected or appointed to any office or employment of profit under the laws of this state... shall hold such office or employment without personally devoting his time to the performance of the duties thereof," means: "If the public duties of an officer require all the time of the public servant, then the whole time must be given. If all the time of the officer be not required for the complete and faithful execution of his trust, then he shall give such time and devote such service as shall suffice for the full and faithful discharge of the duties of his office." Fairley v. Western Union Tel. Co., 73 Miss. 6, 18 So. 796.

This section does not prevent the legislature from providing by statute that the entire time shall be given to the office or employment.

3. STATES. Meaning of requirement of officer's "entire time."

The word "entire" is defined as meaning: "Undivided, unmingled, complete in all its parts; whole; not participated in with others." 15 Cyc. 1054; 11 Amer. & Eng. Enc. Law, 48.

4. STATUTES. Governor cannot veto condition of appropriation act and approve appropriation.

Under section 73 of the state Constitution of 1890, the Governor cannot veto a condition of an appropriation act and approve the appropriation without the condition imposed by the legislature. State v. Holder, 76 Miss. 158, 23 So. 643.

HOLDEN, J., dissenting.

HON. W. H. POTTER, Judge.

APPEAL from circuit court of Hinds county, HON. W. H. POTTER, Judge.

Mandamus by Willis Walley against W. J. Miller, Auditor, to compel issuance of a warrant. Judgment for plaintiff, and defendant appeals. Reversed and dismissed.

Judgment reversed, and demurrer sustained, and suit dismissed.

Frank Robertson, for the state.

I must confess that I follow the reasoning of the lower court with very great difficulty. As has already been stated in order for the writ of mandamus to issue, there must be an appropriation bill, out of which the warrant could be paid. The only question then necessary for this court to decide is, did the bill become a law? If this court is of the opinion that the bill was never enacted into statute, then it is not necessary for this court to pass upon the question as to the meaning of the proviso.

The same question has been before this court in the case of State v. Holder, 76 Miss. 158, 23 So. 643. That case was ably and exhaustively briefed and it appears from the official report that the learned circuit judge represented the teachers and officers of the Industrial Institute and College and unsuccessfully undertook to compel the auditor of public accounts to issue warrants for their salaries. I commend to the court the briefs of the counsel for appellee in that case, and it will appear that that case is on all fours with the case at bar. In that case, as in this, the then governor attempted to veto the part of the appropriation bill and approve a part. In no uncertain terms, the court, speaking through Chief Justice WOODS said: "The bill is an entire thing inseparable in its provisions, and to be approved or disapproved as such, and not having been signed as a bill, was not made by the partial and qualified approval which it received. It cannot be law, for that would be to make law which has not been concurred in by the Legislature and the Governor." The last paragraph in this opinion clearly decides the proposition that the governor when he attempted to veto a part of the bill and approve a part, in legal contemplation did nothing at all, but that the bill was still in his hands subject to be returned to the next legislature within three days after it shall have convened, due to the fact that the legislature adjourned within the five day period after the bill was placed in his hands for approval. The court said:

"The action of the Governor having been unconstitutional and, therefore, void, his action in regard to the bill was a nullity, but the legislature having adjourned within five days after the presentation of the bill to the Governor, the bill in legal contemplation must be held to be yet in the hands of the Governor, and may become law unless sent back by him within three days after the beginning of the next session of the legislature."

Unless the Holder case is to be overruled, the bill did not become law and, therefore, there is no fund available out of which a warrant could be paid . . . this is a necessary preliminary for the issuance of the writ of mandamus.

It is not necessary to determine the meaning of the proviso, or whether it is already the law, in this case, in order for this court to pass upon the question as to whether the bill became law or not. The sole question, as I see it, is, if the attempted action of the Governor in vetoing the bill was a nullity, then, under the Holder case, the bill is still in his hands. This, in my judgment, disposes of this law suit, and shows that the lower court erred in overruling the demurrer to the petition.

Counsel for appellee argue in the latter part of their brief that if the action of the governor in attempting to veto a part of the bill was a nullity that the bill as originally passed became the law and admits that this is in conflict with the holding in the Holder case, supra. The case of Porter v. Hughes, 32 P. 165, is quoted there as supporting this proposition. It will be noted that the case so cited was decided prior to the Holder case and was cited in the brief of counsel for the appellant in that case as will appear from page 162, 76 Miss. It will not be argued that the Holder case was not maturely and exhaustively considered by our court. I do not believe that this court will now overrule that case which has been the law in Mississippi for twenty-two years, and has been cited with approval in the following cases: Nowell v. Harrington (Maryland), 89 A. 1098; Lukens v. Nye (California), 105 P. 593; Regents of State University v. Trapp, State Auditor (Oklahoma). 113 P. 910.

I am so strongly convinced that this court will take the view that the sole and necessary question upon which it is called upon to decide, is, did the bill become a statute, and that it will follow the Holder case in holding that because of the attempted veto of the Governor that the bill is still in his hands, that I shall not prolong this brief at any very great length discussing what appears to me to be minor, immaterial and irrelevant questions in the case before the court.

It is stated in the opinion of the circuit Judge overruling the demurrer and in counsel's brief, that the proviso adds nothing to the bill, and since it adds nothing that is not already law, that the demurrer was, properly overruled. It is argued that section 267 of the constitution now requires any official of this state to personally devote his time to the performance of the duties thereof, and that the only difference in the constitutional provision and the bill in question is the addition of the word "entire." It is stated that that is the meaning of the constitution and therefore nothing new is added. The case of Fairley v. Western Union Telegraph Company, 73 Miss. 6, is cited in support of this contention. I submit with the utmost confidence that this is an unfortunate citation for the appellee. The same eminent jurist delivered the opinion in the Holder case, supra, as in the Fairley case. In that case section 267 of the constitution was before the court for interpretation. In the most emphatic language he said: "It forbids not only the farming out of a public office, but it requires that the official shall give his own time and personal service to the performance of the duties of his office. Having been elected or appointed to a public office because of his fitness for the proper performance of the duties of his place, the official himself, shall be required to give his time, his attention and his services to the discharge of his official duties." As to the amount of time that a public officer must devote to the position of his office, the court said that such a question must have reasonable answer, and the court held that officers should give such time as shall suffice for the full and faithful discharge of the duties of his office.

The legislature, for reasons...