Peebly v. Childers
| Decision Date | 18 August 1923 |
| Docket Number | 14569. |
| Citation | 217 P. 1049,95 Okla. 40,1923 OK 595 |
| Parties | PEEBLY v. CHILDERS, STATE AUDITOR (REGENTS OF UNIVERSITY OF OKLAHOMA, INTERVENER). |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
The act of the Legislature involved herein is a bill making appropriations of money embracing distinct items, and the Governor's veto power in relation to such bill, or any distinct item thereof, is defined by section 12, art. 6 Williams' Constitution.
Except as provided in the Constitution of this state, the three departments of government, legislative, executive, and judicial, are required to be separate and distinct, so that neither shall exercise the functions properly belonging to either of the others.
While engaged in considering bills which have passed both houses of the Legislature, and which are presented to him for approval or disapproval, the Governor is acting in a legislative capacity and not as an executive.
While exercising this function, the Governor is a special agent with powers limited by the Constitution, and he can only act in the specified mode, and can exercise only the granted powers. If he attempts to exercise them in a different mode or to exercise powers not given, his act will be wholly ineffectual for any and every purpose.
Under section 12, which applies in the case at bar, no affirmative action on the part of the Governor is necessary to vitalize an appropriation bill embracing distinct items duly passed by the Legislature. But, in order to veto an item of an appropriation bill, the Governor is required to disapprove the objectionable item in toto.
A fair application of the foregoing fundamental principles to the plain provisions of section 12, art. 6, Williams' Constitution, leads to the conclusion that the action of the Governor in attempting to approve in part and disapprove in part distinct items of the institutional appropriation bill was an unauthorized and futile gesture, wholly ineffectual for any purpose.
For the reasons stated, the judgment of the trial court is affirmed.
Appeal from District Court. Oklahoma County; William H. Zwick Judge.
Suit by R. L. Peebly against C. C. Childers, State Auditor, in which the Regents of the University of Oklahoma intervened. From a judgment for defendant and intervener, plaintiff appeals. Affirmed.
Suits & Hall, of Oklahoma City, for plaintiff in error.
George F. Short, Atty. Gen., and G. B. Fulton, M. W. McKenzie, and John Barry, Asst. Attys. Gen., for defendant in error.
Paul A. Walker and Raymond A. Tolbert, both of Oklahoma City, and Elton B. Hunt, of Tulsa (Raymond A. Tolbert and Paul G. Darrough, both of Oklahoma City, Elton B. Hunt, of Tulsa, J. B. Sowder, of Cleveland, Charles B. Steele, of Okmulgee, Robert R. Pruett, of Waurika, P. D. Erwin, of Wellston, Thurman S. Hurst, of Pawnee, Jackman A. Gill, of McAlester, Ray Evans, of Shawnee, P. D. Sullivan, of Duncan, Paul A. Walker, of Oklahoma City, and C. Ross Hume, of Anadarko, Alumni of University of Oklahoma, of counsel), for intervener.
McPherren & Hannah, of Durant, and W. H. Woods, of Purcell, amici curiæ.
This was a suit in equity commenced by the plaintiff in error, plaintiff below, against the defendant in error, defendant below, for the purpose of enjoining the latter as state auditor from paying out or attempting to pay out any amounts or sums of the moneys appropriated by chapter 233, Sess. Laws 1923, for salaries and maintenance of the University of Oklahoma, for the years 1924 and 1925.
The contention of the plaintiff was that the action of the Governor in approving in part and disapproving in part the salary and maintenance items of the appropriation bill after the final adjournment of the Legislature was in effect a valid disapproval of the items, and therefore no funds whatever were available for salaries and maintenance for the years 1924 and 1925.
Subsequently the Regents of the University of Oklahoma intervened by leave of court. Counsel appearing for the Board of Regents contended that the action of the Governor complained of was unauthorized by the Constitution, and the effect of such action was to leave the entire sum appropriated by the Legislature for salaries and maintenance in full force and effect, and available for the payment of warrants properly drawn and presented for payment.
George F. Short, Attorney General, G. B. Fulton, M. W. McKenzie, and John Barry, Assistant Attorneys General, appeared for the defendant, the State Auditor, and in his behalf joined counsel for the Regents of the University of Oklahoma in their contention.
These several contentions were considered by the trial court upon demurrer to plaintiff's petition, and the court, after being fully advised in the premises, sustained the demurrer, and rendered judgment against the plaintiff and in favor of the defendant and the intervener, to reverse which this proceeding in error was commenced.
The facts out of which this controversy arose may be briefly summarized as follows:
The Legislature duly passed what is generally known as the "Institutional bill," which provided for an appropriation for salaries for the state University of $700,000 for the year ending June 30, 1924, and $720,000 for the year ending June 30, 1925, and presented it to the Governor for his consideration. The Governor, after the final adjournment of the Legislature, drew a line with red ink through each of these sums, and then wrote under these two items the following words:
After reducing other items of the bill in the same manner and disapproving other items in full, the Governor appended thereto the following words:
In this court, as in the trial court, counsel for the plaintiff contend that the action of the Governor in drawing a red line through the items of appropriation for salaries and substituting a different amount than that provided by the Legislature and then approving the substitute amount in the manner above indicated, constituted a proper exercise of his veto power under section 12, art. 6, of Williams' Constitution, which provides as follows:
In order to make the precise points of difference between counsel for the contending parties stand out as prominently as possible, we will first lay down without the citation of authorities the applicable preliminary principles of law concerning which counsel agree or over which there is no serious controversy.
Counsel agree that the act of the Legislature involved herein is a bill making appropriations of money embracing distinct items, and that the Governor's veto power in relation to such a bill or any distinct item thereof is defined by section 12, art. 6, Williams' Constitution, hereinbefore set out in full.
They also agree that, except as provided in the Constitution of this state, the three departments of government, legislative, executive and judicial, are required to be separate and distinct, so that neither shall exercise the functions properly belonging to either of the others; that, while engaged in considering bills which have passed both houses of the Legislature, and which are presented to him for approval or disapproval, the Governor is acting in a legislative capacity and not as an executive; that while exercising this function the Governor is a special agent, with powers limited by the Constitution, and he can only act in the specified mode, and can exercise only the granted powers; if he attempts to exercise them in a different mode, or to exercise powers not given, his act will be wholly ineffectual for any and every purpose.
Now as we understand it, while counsel for plaintiff concede the soundness of these fundamental general principles, they contend that the view they take of the question involved in the case at bar is supported by the decision of this court in the case of Regents of the State University v. Trapp, 28 Okl. 83, 113 P. 910, and that, if this case is followed in the case at bar no other conclusion can be logically reached. After quoting at considerable length from the opinion in the Trapp Case, counsel say:
"We submit that there is no escape from the conclusion that the action of the Governor can only have one effect, and that is to place his disapproval upon the items of appropriation for salaries."
We are wholly unable to agree with the conclusion reached by counsel as to the controlling effect of the Trapp Case. We think that, when the opinion in the Trapp Case is carefully analyzed and rightly understood, it furnishes a precedent against rather than in favor of counsel's...
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