State ex rel. Brotherton v. Blankenship

• Citation: 158 W.Va. 390,214 S.E.2d 467
• Decision Date: 04 February 1975
• Docket Number: No. 13514,13514
• Parties: STATE ex rel. William T. BROTHERTON, Jr., etc., et al. v. C. A. BLANKENSHIP, Clerk, etc.
• Court: Supreme Court of West Virginia

Page 467

214 S.E.2d 467

158 W.Va. 390

STATE ex rel. William T. BROTHERTON, Jr., etc., et al. v. C. A. BLANKENSHIP, Clerk, etc.

No. 13514.

Supreme Court of Appeals of West Virginia.

Feb. 4, 1975.

Dissenting Opinion Feb. 5, 1975.

Syllabus by the Court

1. Subject to the limitations of West Virginia Constitution, Article V, Section 1 and Article VI, Section 51, only the Governor is authorized to prepare and submit the Budget Bill and Document.

2. Although the Governor may veto an entire appropriations bill, that office is limited by West Virginia Constitution, Article V, Section 1, the Separation of Powers Clause, in the exercise of authority to disapprove items or parts of items and does not possess the authority under Article VI, Section 51, D(11) of the Constitution to disapprove or reduce items or parts of items contained in the Budget Bill which were prepared and certified to the Governor by the Legislature as that body's estimates of need for its internal operations.

3. Inasmuch as the Budget Bill provides an expenditure plan for the entire operations of government within a fiscal period, West Virginia Constitution, Article VI, Section 30 does not apply to require that language or objects germane to the Bill and its purpose be set forth with particularity in the title.

4. Inasmuch as West Virginia Constitution, Article V, Section 1 prohibits one branch of government from invading the powers of another, statutes may not be construed to authorize the budget officer for the executive department to control or impede the general plan of expenditures for necessary internal operations of the legislative and judicial departments.

5. 'The words 'shall not', as used in the first paragraph of Section 51, Article VI, West Virginia Constitution, should be given their general and ordinary meaning, and read as prohibiting the Legislature from appropriating any money out of the treasury, except in accordance with the provisions of Section 51.' Syllabus point 9., State ex rel. Trent v. Sims, 138 W.Va. 244, 77 S.E.2d 122 (1953).

6. The authority granted to the Legislature by West Virginia Constitution, Article VI, Section 51, B(5) to amend the Budget Bill by increasing or decreasing 'items' is limited to increase or decrease of the monetary amounts submitted by the Governor.

7. Subject to the limitations of West Virginia Constitution, Article VI, Section 51, C(7), the Legislature may originate and enact supplementary appropriation bills.

8. 'The words 'Neither House shall consider other appropriations until the budget bill has been finally acted upon by both Houses,' contained in Sub-Section C, Section 51, Article VI, West Virginia Constitution, mean that the Houses of the Legislature shall not consider other appropriations until the budget bill has been finally acted upon by both Houses, and this clause prohibits the Legislature from considering other appropriations until a constitutional budget bill has been finally acted upon.' Syllabus point 10., State ex rel. Trent v. Sims, 138 W.Va. 244, 77 S.E.2d 122 (1953).

9. The Governor is authorized by West Virginia Constitution, Article VI, Section 51, D(11) to disapprove unauthorized amendments inserted into the Budget Bill after its preparation and introduction as an appropriations measure.

10. Because West Virginia Constitution, Article VI, Section 51, B(5) permits the Legislature to amend the Budget Bill by increasing or decreasing items therein if a deficit is not thereby created and because the Legislature's internal budget estimates are protected by Subsection D(10) of Section 51, Supra, and by Article V, Section 1, Supra, the Governor does not possess veto authority to reduce increased amounts appropriated by the Legislature for its own internal operations within a fiscal period.

11. Where the word 'item' appears in the context of West Virginia Constitution, Article VI, Section 51, D(11), it means and embraces a subject or purpose and an amount; in an appropriation bill, such 'item' may occur in an enumeration, account or total, and may be any separate subject or purpose and amount within an account or total.

12. Consistent with the disapproval authority granted by West Virginia Constitution, Article VI, Section 51, D(11), the Governor may delete language of purpose, finding, direction and condition from the Budget Bill and, nevertheless, retain money totals appropriated in partially disapproved accounts.

13. While the Governor has the authority to delete language of purpose, finding, direction and condition from an item and thereby accomplish disapproval of part of an item, he may not exercise disapproval in a manner which would permit him to retain an appropriated amount unrelated to an ascertainable classification of subject or purpose.

14. An attempted partial disapproval of an item of appropriation which eliminates the ascertainment of subject or purpose and retains only amount, must be construed as a disapproval of the entire item under West Virginia Constitution, Article VI, Section 51, D(11).

15. Whenever and wherever the Legislature amends the Budget Bill to require that an ascertainable sum of money shall be spent for a particular purpose, and that alone, while other sums appropriated are to be otherwise spent, it is, nevertheless, within the spirit and letter of Article VI, Section 51, D(11) of the Constitution, an 'item' or part of an 'item' within the bill, and may be disapproved by the Governor without affecting a general appropriation for that subject or purpose.

16. 'Under Article 6, Section 51 of the West Virginia Constitution, the Governor does have the authority to strike items or parts of items pertaining to the budget of the executive department and in lieu thereof to insert a lump sum figure equal to the sum of the parts of items stricken after the Budget Bill has been enacted by the Legislature and presented to him for approval.' Syllabus point 8., State ex rel. Brotherton v. Blankenship, W.Va., 207 S.E.2d 421 (1973).

17. Such authority as the Governor possesses to amend the Budget Bill is granted to that office by West Virginia Constitution, Article VI, Section 51, B(4).

18. As the Governor is authorized by West Virginia Constitution, Article VI, Section 51, D(11) to reduce items or parts of items which are not protected by Article V, Section 1 or other provisions of Article VI, Section 51, he may reduce amounts appropriated to the State Department of Education when such reduction does not effectively eliminate the operative capability of the free school system.

19. The Governor does not possess authority to amend the Budget Bill at the veto stage either by insertion of new language or by insertion of increased item amounts unless such language or amounts have been previously approved by the Legislature through enactment of the bill.

Jack M. McCarty, Charleston, Robert M. Harvey, Dunbar, for petitioners.

Chauncey H. Browning, Jr., Atty. Gen., Henry C. Bias, Jr., Deputy Atty. Gen., Charleston, for respondent.

Spilman, Thomas, Battle & Klostermeyer, W. Victor Ross, Charleston, for intervenor Arch A. Moore, Jr., Governor of W. Va.

HADEN, Chief Justice:

On September 4, 1974, the relators, the Honorable William T. Brotherton, Jr., as a member and President of the Senate of West Virginia, and the Honorable Lewis N. McManus, as a member and Speaker of the House of Delegates of West Virginia, and both as citizens and taxpayers of the State, sought to invoke the original jurisdiction of this Court through the issuance of a writ to require the respondent, C. A. Blankenship, Clerk of the House of Delegates and, as such, the keeper of the rolls and the custodian of the Acts and Joint Resolutions of the Legislature, 'to publish the true Budget Act in such manner as to include the full and lawful purposes and as appropriated by the Legislature without the void deletions, reductions and vetoes attempted by the Governor and without giving effect to the unlawful and unconstitutional additions of figures and language and amendments and changes in the Budget Bill attempted by the Governor and to furnish Petitioners true copies of the Budget Act as so published. . . .'

Thereafter, on September 9, 1974, this Court acting upon the allegations of the petition, issued a rule returnable September 24, 1974. The Honorable Arch A. Moore, Jr., Governor of the State of West Virginia then, on September 16, 1974, filed a motion praying that he be granted leave to intervene in this proceeding as a party respondent. That motion was granted by this Court. On September 25, 1974, upon the petition and exhibits, the demurrer of the respondent, the intervenor's demurrer and separate answer with exhibits filed in opposition to the petition, the joint stipulation of the parties, the briefs and oral arguments of the respective parties, and the brief Amicus curiae of Honorable George H. Seibert, Jr. as a member and Minority Leader of the House of Delegates of West Virginia, and as a citizen and taxpayer of the State, and upon the reply brief of the relators, this case was submitted for decision.

On November 6, 1974, this Court, by order, granted the relief prayed for in certain instances, denied such relief in other instances, and molded the writ in others to give appropriate relief required by the questions presented. On December 5, 1974, the relators and the respondent, C. A. Blankenship, Clerk, deeming themselves aggrieved by the rulings contained in the previous order of this Court, filed separate petitions for rehearing, assigned purported errors on the face of said order, and requested that the matters contained in the former order be set down for a full rehearing, that this Court correct its former order, and grant the relief as originally prayed for in the petition of the petitioners. This Court denied the two separate petitions for rehearing on December 13, 1974.

This opinion is now filed for the purpose of stating the reasons for,...