State ex rel. Browning v. Blankenship

• Decision Date: 16 June 1970
• Docket Number: No. 12938,12938
• Parties: STATE ex rel. Chauncey H. BROWNING, Jr., Attorney General of West Virginia v. C. A. BLANKENSHIP, Clerk of the House of Delegates of West Virginia.
• Court: West Virginia Supreme Court

Page 172

175 S.E.2d 172

154 W.Va. 253

STATE ex rel. Chauncey H. BROWNING, Jr., Attorney General of

West Virginia v. C. A. BLANKENSHIP, Clerk of the House of Delegates of West Virginia.

No. 12938.

Supreme Court of Appeals of West Virginia.

Submitted May 6, 1970.

Decided June 16, 1970.

Syllabus by the Court

1. Mandamus is the proper remedy, at the instance of the Attorney General, to compel the Clerk of the House of Delegates, as keeper of the rolls, to publish the official Budget Act an to furnish the requested copies when such act has been officially determined in this proceeding.

2. In the exercise of the power of the Governor to veto a budget bill or any of its items or parts after the adjournment of the Legislature, the provision of the Modern Budget Amendment that the bill shall be filed in the office of the Secretary of State within five days after such adjournment with the objections of the Governor, must be literally complied with and the failure to file his objections with the bill in the office of the Secretary of State within the five day period renders his veto and the reduction or elimination of any item or part of the bill invalid and of no force and effect.

3. The word 'objections', as used in the Modern Budget Amendment, means a statement of an adverse reason in opposition to a budget bill, or its items or parts, and the action of the Governor in the elimination of the amount of an item in the bill by striking the amount by drawing a line through the figures or the substitution of a reduced amount and the addition of the initials of the Governor does not constitute the objections required by the Amendment.

4. The failure of the Governor to file his objections with the Budget Bill when it was filed in the office of the Secretary of State within five days after the adjournment of the Legislature renders the exercise of the veto power of the Governor ineffective and because of the ineffective exercise of that power, the Budget Bill as passed by the Legislature, and not as amended by the Governor, is the valid official Budget Act for the fiscal year 1970--1971.

Cletus B. Hanley, Deputy Atty. Gen., Victor A. Barone, Asst. Atty. Gen., Charleston for relator.

Jack McCarty, Asst. Atty. Gen., Charleston, for respondent.

Arch A. Moore, Jr., Governor, Charleston, for intervenor (Arch A. Moore, Jr.).

PER CURIAM.

This is an original proceeding in mandamus in which the petitioner, the Honorable Chauncey H. Browning, Jr., Attorney General of West Virginia, seeks a writ to require the defendant, the Honorable C. A. Blankenship, Clerk of the House of Delegates of West Virginia, to publish the true Budget Act passed by the Legislature of West Virginia at its regular session, 1970, to include the amounts as appropriated by the Legislature without the reductions made by the Governor, and to furnish the petitioner true copies of the Act as so published.

Upon the petition and its exhibits filed March 3, 1970, this Court, on March 9, 1970, issued a rule returnable May 5, 1970. Because of prior cases this proceeding was not called for hearing until May 6, 1970, at which time the Honorable Arch A. Moore, Jr., Governor of West Virginia, hereinafter sometimes referred to as Governor or intervenor, filed his motion for leave to petition this Court for permission to intervene as a party defendant in this proceeding which motion this Court sustained and permitted the movant, the Governor of West Virginia as intervenor, to be made a party defendant in this proceeding. At the same time, as intervenor, he filed his demurrer and answer to the petition of the Attorney General. To the answer of the intervenor the petitioner filed his demurrer, and the defendant, C. A. Blankenship, Clerk of the House of Delegates, hereinafter sometimes referred to as Clerk, filed his demurrer to the petition of the Attorney General and his replication to the answer of the intervenor and an exhibit with the replication.

Upon the foregoing pleadings and the typewritten briefs and the oral arguments of the attorneys in behalf of the respective parties this proceeding was submitted for decision on May 6, 1970.

The material facts are not disputed and the questions presented for decision are questions of law.

On February 14, 1970, the Legislature of West Virginia, during its 1970 regular session passed a Budget Bill, known as Enrolled Committee Substitute for Senate Bill No. 1, effective from its passage, which established the budget of the State of West Virginia for the next ensuing fiscal year 1970--1971, and thereafter adjourned sine die. The Budget Bill was presented to the Honorable Arch A. Moore, Jr., Governor of West Virginia, for his consideration, and on February 18, 1970, within five days after the adjournment of the Legislature, the Governor signed the Budget Bill with the notation 'approved with reductions' and filed it in the office of the Secretary of State. When the Budget Bill was filed with the Secretary of State, a letter signed by the Governor and a list of reduced account numbers were attached. The letter stated, in part, 'I herewith submit, in addition to the notations which I have made on the face of the bill and the reductions therein shown, a typewritten list of the account numbers so reduced.'

From the copy of the Budget Bill filed as Exhibit 1 with the petition of the Attorney General, it appears that the Governor reduced the item under Account 240, Attorney General, 'Other Personal Services' from $583,360.00 to $280,626.00 or a reduction of $302,734.00, by striking the amount of 583,360.00 by drawing an inked line through it and inserting twice for that item the amount of $280,826.00 and adding to each, in pen and ink, the initials 'A.A.M.Jr.', and reduced the total of the appropriation for that account from $665,860.00 to $363,126.00 by striking the amount of $665,860.00 by drawing an inked line through it and inserting instead the amount of $363,126.00 and adding, in pen and ink, the initials 'A.A.M.Jr.' There is no other notation on the Budget Bill with respect to either of the foregoing items and the only indication of the reduction in each is that the amount of the original appropriation for each item is eliminated and the reduced amounts are substitutes for the original amounts in the manner indicated.

It also appears from the exhibit that the Governor reduced or eliminated, in the same manner, items in Accounts Numbers 120, Governor's Office; 150, Auditor's Office; 170, Sinking Fund Commission; 250, Secretary of State; 291, Educational Broadcasting Authority; 293, State Board of Education--Vocational Division; 296, Department of Education--Aid for Exceptional Children; 299, commission on Higher Education; 410 Department of Mental Health; 440, State Board of Education--Rehabilitation Division; 495, West Virginia Racing Commission; 513, Department of Agriculture--Division of Rural Resources; 514, Department of Agricultur--Meat Inspection; 565, Department of Natural Resources; and claim of Hibbard, O'Connor & Weeks, Inc. against the State Department of Education.

The Intervenor contends that as the Clerk has published or will publish the Budget Bill in both its original form as enacted by the Legislature and in its final form as amended by the Governor, the object of this mandamus proceeding has been accomplished and this proceeding is now moot. The Clerk denies that he has published or will publish the Budget Bill in both forms but states instead that he has prepared an informational galley of the Budget Bill solely for the purpose of informing persons, who inquire about the status of the Budget Bill, that a proceeding in mandamus with respect to that matter is pending in this Court and that his action in that respect did not constitute the performance of the act sought to be required of him in this proceeding. There is no merit in the foregoing contention of the intervenor.

It is clear from the pleadings in this proceeding that the Clerk has not made any official publication of the Budget Bill in either its original or amended form. Since he has made no such official publication he may be compelled, at the instance of the Attorney General, to publish the Budget Act in its official form as provided by Section 13, Article 1, Chapter 4, Code, 1931, when the official form of the Act is determined in this proceeding. Capito v. Topping, 65 W.Va. 587, 64 S.E. 845, 22 L.R.A.N.S., 1089; May v. Topping, 65 W.Va. 656, 64 S.E. 846. In the Capito case this Court held in point 1 of the syllabus that 'Mandamus is an appropriate remedy to compel the keeper of the legislative rolls to deliver to a citizen requiring it a copy of an act passed by the Legislature, and also to compel him to promulgate the same with the other acts passed by printing and binding it with them for distribution and sale.' In the opinion this Court used this language: 'Assuming the validity of the acts in question, the right of the applicants (Capito, Sutherland and Reese) to have copies thereof and the propriety of the remedy invoked are clear beyond doubt. As citizens and taxpayers, they have a sufficient interest, and the statute makes the clerk of the House the keeper of the rolls, and requires him to make and deliver a copy of any act to any person requiring the same on payment of the fee allowed therefor. Code 1889, c. 12, §§ 13, 14. That Mandamus is the proper remedy to enforce performance of this duty is obvious, in view of legal principles, and has been judicially declared. Wise v. Bigger, Clerk, 79 Va. 269; Wolfe v. McCaull, 76 Va. 876.' In the opinion in the May case this Court, referring to the Capito case, said that the right of petitioner to the remedy by mandamus to compel the certification and delivery to her of a copy of an act passed by the Legislature and to compel the keeper of the rolls to promulgate the act with the other acts passed had been determined and upheld in the cases of Capito, Sutherland and Reese and...