State ex rel. Martin v. Zimmerman

• Decision Date: 16 January 1940
• Citation: 289 N.W. 662,233 Wis. 442
• Parties: STATE ex rel. MARTIN, Atty. Gen., v. ZIMMERMAN, Secretary of State.
• Court: Wisconsin Supreme Court

233 Wis. 442

289 N.W. 662

STATE ex rel. MARTIN, Atty. Gen.,

v.ZIMMERMAN, Secretary of State.

Supreme Court of Wisconsin.

Jan. 16, 1940.

Original action for a declaratory judgment brought pursuant to leave of the court. On December 2, 1939, the attorney general of the State of Wisconsin filed a petition with this Court for leave to commence an original action for a declaratory judgment declaring that the governor's act in partially approving and partially disapproving Bill No. 563, S, was in all respect valid and that ch. 533, Laws of 1939, as approved by the governor, is in all respects a valid law. The parties thereafter stipulated that the petition stand as and for the complaint in said action, to which, defendant demurred on the ground that the complaint failed to state a cause of action.

The complaint alleges that the legislature of the State of Wisconsin, prior to sine die adjournment at 4:15 o'clock P. M. on October 6, 1939, duly enacted Bill No. 563, S, and caused the bill to be presented to the governor for his approval at 10:40 o'clock A. M. on October 7, 1939. The governor approved the bill in part and disapproved it in part within 6 days (Sundays excepted) after it had been presented to him. On October 14, 1939, at 10:16 o'clock A. M. and within 6 days (Sunday excepted) after the bill had been presented to him for approval, the governor deposited the bill in the office of the secretary of state in the form in which it was so approved. The secretary of state refused to cause the bill to be published pursuant to the provisions of sec. 35.64, Stats., upon the ground that the governor's act in partially approving and partially disapproving the bill was unconstitutional and void.

An original action was then instituted in this court for the purpose of requiring the secretary of state to publish those parts of the bill which the governor had approved, that this Court, on November 16, 1939, issued a peremptory writ of mandamus directing the secretary of state to cause the bill, as approved by the governor, to be published. State of Wisconsin ex rel. John E. Martin, Atty. Gen., v. Fred R. Zimmerman, Secretary of State, Wis., 288 N.W. 454. Those parts of the bill which had been approved were then published in the official state paper on November 18, 1939 as ch. 533, Laws of 1939.

Upon the assumption that those parts of the bill which had been approved by the governor and published had become law, the state department of public welfare on November 21, 1939, requested the secretary of state to transfer the sum of $115,000 from the appropriation made by sec. 20.18 (1), Stats., as amended by ch. 533, Laws of 1939, to the appropriation provided for by sec. 20.18(5), Stats. as amended by ch. 142, Laws of 1939, all in accordance with the provisions of ch. 40, Laws of 1939. At the same time the state department of public welfare requested the secretary of state to certify to the social security board at Washington, D. C., the amount of moneys appropriated as aid for dependent children. Such certification required the secretary of state to determine whether the appropriation made by sec. 20.18 (1), Stats., as amended by ch. 533, Laws of 1939, was valid. The secretary of state refused to transfer the funds as requested by the state department of public welfare and has refused to certify the amounts appropriated by sec. 20.18 (1), Stats., as amended by ch. 533, Laws of 1939.

The sections, subsections, and paragraphs of Bill No. 563, S., vetoed by the governor are set out in ch. 533, Laws of 1939.John E. Martin, Atty. Gen., James Ward Rector, Deputy Atty. Gen., and N. S. Boardman, Asst. Atty. Gen., for plaintiff.

R. M. Rieser, of Madison, for defendant.

MARTIN, Justice.

The defendant contends, (1) that the power of partial veto does not exist after the legislature has adjourned sine die, and (2) that, if the governor has such veto power, the exercise of it in the instant case so changed the legislative program or policy as to render the parts approved invalid.

These contentions necessitate a construction of art. V, sec. 10, of the Wisconsin Constitution (which is printed in the margin).¹

In State v. Wisconsin ex rel. John E. Martin, Atty. Gen., v. Fred R. Zimmerman, Secretary of State, Wis., 288 N.W. 454, 456 (decided November 16, 1939), the court said: “We do not need to consider in this case acts of the Legislature which become laws otherwise than by the approval of the Governor for the Governor in this case approved the act in part and the part approved thereby became a ‘law’ within the meaning of that term as used in Art. V, sec. 10 of the constitution.”

In the above case, the secretary of state contended, as he does in the instant case, that the power of partial veto vested in the governor by art. V, sec. 10, of the bill Wisconsin constitution can not be exercised after the adjournment of the legislature. The court there said: “We do not enter upon a consideration of the contention of the Secretary of State with respect to the validity of the act, because that question is not now before the Court. When the act is published and the interest of some officer or citizen is adversely affected by the act, that question may be presented in a proper case.”

We have not had occasion heretofore to decide the specific question of the governor's power to disapprove a part or parts of an appropriation bill after the legislature had adjourned sine die. In support of such power, the plaintiff cites State ex rel. Sandaker v. Olson, 1935, 65 N.D. 561, 260 N.W. 586, and Carter v. Rathburn, 85 Okl. 251, 209 P. 944. To the contrary, defendant cites May v. Topping, 65 W.Va. 656, 64 S.E. 848. None of these cases are directly in point because of the differences in the provisions of their constitutions with art. V, sec. 10, of the Wisconsin constitution.

The North Dakota constitution (sec. 79) provides that if any bill shall not be returned by the governor within 3 days (Sundays excepted) after presented to him, the same shall be a law, unless the legislature by its adjournment prevents its return, in which case, it shall be a law unless the governor files the same with his objections in the office of the secretary of state within 15 days after the legislature adjourned. Art. V, sec. 10, of the Wisconsin constitution provides that any bill not returned by the governor within 6 days (Sundays excepted) after presented to him shall be a law unless the legislature shall, by their adjournment, prevent its return, in which case it shall not be a law.

The West Virginia constitution prohibits the governor from vetoing a general appropriation bill, or any item of it, unless he communicates his reasons therefore to the legislature before its adjournment. The West Virginia court held in May v. Topping, supra, that the governor must exercise his veto before the legislature adjourns, or not at all.

The provisions of the Oklahoma constitution are quite similar to those of the West Virginia constitution. While there are a large number of cases sustaining the power of the governor to veto an item or items, part or parts, of an appropriation bill, and holding that the part or parts approved become law, the cases we have found, treating of the executive power to exercise such power after the legislature has adjourned sine die, are of no particular assistance because of constitutional differences.

[1][2]Art. V, sec. 10 of our state constitution is not ambiguous. As amended in 1930, it must be construed as a whole. In so construing it, we entertain no doubt either as to the reason for, or the meaning of, the 1930 amendment (see part in italics). Its purpose was to prevent, if possible, the adoption of omnibus appropriation bills, log-rolling, the practice of jumbling together in one act inconsistent subjects in order to force a passage by uniting minorities with different interests when the particular provisions could not pass on their separate merits, with riders of objectionable legislation attached to general appropriation bills in order to force the governor to veto the entire bill and thus stop the wheels of government or approve the obnoxious act. Very definite evils were inherent in the law-making processes in connection with appropriation measures. Both the legislature and the people deemed it advisable to confer power upon the governor to approve appropriation bills in whole or in part, and the 1930 amendment to art. V, sec. 10, of the constitution provides: “Appropriation bills may be approved in whole or in part by the governor, and the part approved shall become law, and the part objected to shall be returned in the same manner as provided for other bills.”

Art. V, sec. 10, further provides: “If any bill shall not be returned by the governor within six days (Sundays excepted) after it shall have been presented to him, the same shall be a law unless the legislature shall, by their adjournment, prevent its return, in which case it shall not be a law.”

The defendant argues that the word “it” in the last sentence of art. V, sec. 10 means that the entire bill must be returned by the governor to that house in which it originated. This interpretation would destroy the whole purpose and effect of the 1930 amendment. Furthermore, the argument entirely overlooks the following provision that “*** the part objected to shall be returned in the same manner as provided for other bills.” If the...