State ex rel. Sandaker v. Olson

• Decision Date: 09 April 1935
• Docket Number: 6320
• Citation: 260 N.W. 586,65 N.D. 561
• Court: North Dakota Supreme Court

260 N.W. 586

65 N.D. 561

STATE OF NORTH DAKOTA EX REL. A. M. SANDAKER, Appellant, v. OLE H. OLSON, as Acting Governor, Berta E. Baker as State Auditor, Robert Byrne as Secretary of State, Alfred S. Dale, State Treasurer, and Adam Lefor as State Bank Examiner of the State of North Dakota Comprising the State Auditing Board and Berta E. Baker, as State Auditor of the State of North Dakota, Respondents

No. 6320

Supreme Court of North Dakota

April 9, 1935

Rehearing Denied April 27, 1935.

Syllabus by the Court.

1. The Governor has the constitutional power to disapprove of any item in any bill enacted by the legislative assembly making appropriations of money embracing distinct items, and such item or items disapproved are void and remain void until reconsidered by the Legislature and passed over his veto in the same manner as any bill which the Governor may veto.

2. Where an appropriation bill enacted by the legislative assembly is not submitted to the Governor of this state within three days prior to the adjournment of the legislative assembly, the Governor of this state may consider such bill after the adjournment.

3. Where the Governor of this state considers an appropriation bill after such adjournment, he may disapprove any item therein and file his objections in the office of the Secretary of State in the same manner as he is required to do with any other bill passed by the legislative assembly and vetoed by him, and the items disapproved are thereafter void.

4. Chapter 43 of the Session Laws of 1915 does not violate section 61 of the Constitution, which provides that " no bill shall embrace more than one subject, which shall be expressed in its title," as the various propositions and topics embraced in the act, when taken together, constitute but one subject.

5. Chapter 196 of the Session Laws of 1933 is not an appropriation bill.

Appeal from District Court, Burleigh County; Fred Jansonius, Judge.

Mandamus proceeding by the State of North Dakota, on the relation of A. M. Sandaker, against Ole H. Olson, as Acting Governor, and others. From a judgment denying the writ, the petitioner appeals.

Affirmed.

Hyland & Foster and W. E. Matthaei, for appellant.

P O. Sathre, Attorney General, and Chas. A Verret, Assistant Attorney General, for respondent.

Burr, J. Burke, Ch. J., and Christianson, Morris and Nuessle, JJ., concur.

OPINION

BURR

The petitioner seeks to mandamus the state auditing board to approve and allow his vouchers for salary as assistant dairy commissioner during the months of July to December, 1933, inclusive, and the state auditor to issue warrants in payment of the same. The vouchers were disapproved and warrants denied on the ground that there is no legislative appropriation made to pay the salary; that the legislature, by chapter 16 of the Session Laws of 1933, made an appropriation for salary for the biennium but this item was vetoed by the governor. The district court denied the writ and petitioner appealed.

Petitioner contends that the veto is void; that in any event chapter 196 of the Session Laws of 1933 fixes the salary of the assistant dairy commissioner at $ 1350 per year; and also, that prior to the enactment of chapter 43 of the Session Laws of 1915 there was a standing appropriation for the salary of the assistant commissioner, and though such chapter assumes to repeal the appropriation, nevertheless it is unconstitutional as embracing more than one subject.

Chapter 16 of the Session Laws of 1933, in subdiv. 16, made provision for the dairy division of the department of agriculture and labor. This subdiv. contains twelve items. Among the items is the item of $ 6,960 for assistant dairy commissioners; an item of $ 3,584 for the salary of the dairy commissioner and other items. This chapter is the general budget for the expenses of the executive, legislative and judicial departments of the state government and for the public schools. It is a general appropriation bill. On March 18, 1933, the Hon. Wm. Langer, governor of the state, approved the bill in part and vetoed, or attempted to veto, certain items. In his veto he stated he struck out from the bill the items for salary of assistant dairy commissioners, for stenographers, for office supplies, etc., vetoed all of the appropriation for the department except the appropriation for dairy commissioner, specifying each item which, as he said was "struck out by me."

It is alleged by the petitioner that while the governor has the constitutional power to veto items in an appropriation bill, he is not authorized to "reduce" an item. It is unnecessary to pass upon this proposition. It is clear from examination of the legislation the governor disapproved these items in toto. He did not reduce, or pare, or scale any of these to make an item less than what the legislature made. He struck out the items entirely.

Section 80 of the Constitution says: "The governor shall have power to disapprove of any item or items, or part or parts of any bill making appropriations of money or property embracing distinct items, and the part or parts of the bill approved shall be the law, and the item or items, and part or parts disapproved shall be void, unless enacted in the following manner: If the legislative assembly be in session he shall transmit to the house in which the bill originated a copy of the item or items, or part or parts thereof disapproved, together with his objections thereto, and the items or parts objected to shall be separately reconsidered, and each item or part shall then take the same course as is prescribed for the passage of bills over the executive veto." The salary for four dairy commissioners is one of the items in the bill. By striking it out the governor disapproved of it. That is the plain intent of the executive of the state, even if he did not use the term "disapprove." It is true he said the total appropriation was reduced to $ 3,584 by his act; but this is immaterial. This was merely his answer to a problem in subtraction. The fact is, he disapproved of each of the items in that subdivision except the item of $ 3,584. The effect of this was to cut the appropriation for that department to $ 3,584.

However petitioner says these items were not legally and constitutionally vetoed. It is the claim of the petitioner that because § 80 of the Constitution, dealing with the power of the governor to disapprove an item, says: "If the legislative assembly be in session he shall transmit to the house in which the bill originated a copy of the item or items, or part or parts thereof disapproved, together with his objections thereto, and the items or parts objected to shall be separately reconsidered, and each item or part shall then take the same course as is prescribed for the passage of bills over the executive veto."

Therefore, an attempted veto of an item must be made before the legislature adjourns; and that the legislature, by its adjournment, constitutionally prevented the governor from vetoing this item because it made it impossible for him to transmit the disapproved item to the house in which the bill originated, and give the legislature an opportunity to override his veto.

It is clear from the argument, in fact it seems to be conceded, that this appropriation bill did not reach the governor until less than three days prior to the adjournment of the legislature. In other words the governor did not have this appropriation bill presented to him until the time, or about the time, the legislature adjourned so that he did not have "three days (Sundays excepted) to consider the same."

Section 79 of the Constitution says: "If any bill shall not be returned by the Governor within three days (Sundays excepted) after it shall have been presented to him, the same shall be a law unless the legislative assembly, by its adjournment, prevent its return, in which case it shall be a law unless he shall file the same with his objections, in the office of the secretary of state, within fifteen days after such adjournment." The bill was considered by the executive and items vetoed on March 18, 1933, at 11:50 A.M. within fifteen days after adjournment of the legislature. Ordinarily if he does not veto the bill it becomes a law, even if he does not approve it, except in cases where the legislature adjourns without giving him these three days in which to consider the bill. If the legislature so adjourns then the executive has fifteen days after the adjournment to consider the measure. If he determines to veto the bill, or any item, then he files the bill with his objections in the office of the secretary of state within the period prescribed. This the executive did in the case at bar.

The petitioner says this constitutional provision found in § 79 does not apply to appropriation bills; that the executive control over appropriation bills is limited exclusively to the provision in § 80 of the Constitution, already quoted. We cannot agree with this construction of the two sections. These two §§, 79 and 80, must be taken together, and the purpose is plain. If petitioner's contention is to prevail then the legislature may present a general appropriation bill to the governor five minutes before adjournment, without giving him an opportunity to examine any of the items, and then immediately by adjournment prevent him from vetoing any item, as he could not return it to the legislature for consideration. Clearly it was not the intention of the people, when they adopted the Constitution to thus limit the power of the executive. Rather it was the intention that in case an appropriation bill was sent to the governor he could disapprove certain provisions thereof and allow the remainder without being required to veto or approve the bill as...