State ex rel. Sego v. Kirkpatrick

• Decision Date: 19 July 1974
• Docket Number: No. 9973,9973
• Citation: 86 N.M. 359,1974 NMSC 59,524 P.2d 975
• Parties: STATE of New Mexico ex rel. William A. SEGO and William A. Sego, Petitioners, v. Robert E. KIRKPATRICK, Drector, Department of Finance and Administration of the State of New Mexico, et al., Respondents.
• Court: New Mexico Supreme Court

Page 975

524 P.2d 975

86 N.M. 359

STATE of New Mexico ex rel. William A. SEGO and William A.

Sego, Petitioners, v. Robert E. KIRKPATRICK, Drector, Department of Finance and Administration of the State of New Mexico, et al.,

Respondents.

No. 9973.

Supreme Court of New Mexico.

July 19, 1974.

Bigbee, Byrd, Carpenter & Crout, Harry L. Bigbee, Paul D. Gerber, Andrew M. Ives, Jr., Santa Fe, for petitioners

David L. Norvell, Atty. Gen., Thomas L. Dunigan, Thomas Patrick Whelan, Jr., Jane E. Pendleton, Andrea Buzzard, Asst. Attys. Gen., Santa Fe, for respondents.

OPINION

OMAN, Justice.

This is an original proceeding in mandamus. We heretofore entered an alternative writ and subsequently a peremptory writ commanding the Governor, the Director of the Department of Finance and Administration and the Chief of the Division of Financial Control, Department of Finance and Administration, to permanently treat as nullities certain vetoes attempted by the Governor. We also quashed portions of the alternative writ whereby certain other vetoes were questioned, and stated we would subsequently issue this written opinion.

We are here concerned with vetoes and attempted vetoes of certain language contained in the General Appropriations Act of 1974, commonly and hereinafter referred to as House Bill 300 (Ch. 3, Laws of 1974, passed by the Special Session; § 11--4--4, N.M.S.A.1953 (Int.Supp.1974). In accomplishing these vetoes and attempted vetoes, the Governor was acting under the authority vested and claimed to be vested in him by Art. IV, § 22, Constitution of New Mexico, which provides:

'Every bill passed by the legislature shall, before it becomes a law, be presented to the governor for approval. If he approves, he shall sign it, and deposit it with the secretary of state; otherwise, he shall return it to the house in which it originated, with his objections, which shall be entered at large upon the journal; and such bill shall not become a law unless thereafter approved by two-thirds of the members present and voting in each house by yea and nay vote entered upon its journal. Any bill not returned by the governor within three days, Sundays excepted, after being presented to him, shall become a law, whether signed by him or not, unless the legislature by adjournment prevent such return. Every bill presented to the governor during the last three days of the session shall be approved by him within twenty days after the adjournment and shall be by him immediately deposited with the secretary of state. Unless so approved and signed by him such bill shall not become a law. The governor may in like manner approve or disapprove any part or parts, item or items, of any bill appropriating money, and such parts or items approved shall become a law, and such as are disapproved shall be void unless passed over his veto, as herein provided. (As amended September 15, 1953.)' (Emphasis added)

It is the emphasized language of this section of our constitution with which we are particularly concerned. The disapproval by the Governor of an item or part of a bill under this authority is commonly referred to as a 'line item veto.' However, the word 'line' does not appear in the constitutional language conferring this authority, and the use thereof in relation to a veto under this authority is misleading and has caused some confusion.

Not all of the vetoes by the Governor of items or parts of the General Appropriations Act of 1974 have been questioned by petitioner. Before considering each of the questioned vetoes or attempted vetoes, we must first resolve the threshold questions of (1) whether mandamus is an appropriate proceeding by which to test and resolve the constitutionality of the questioned vetoes and (2) whether petitioner has standing to seek such a writ for this purpose.

As to the propriety of mandamus proceedings as a means by which to test the constitutionality of the questioned vetoes, respondents contend the Governor cannot be compelled to exercise his veto power or to exercise it in a particular manner, and that an exercise of the veto power by the Governor requires the exercise of judgment and discretion, which is not a subject of judicial control. We fully agree that the exercise of the veto power requires judgment and discretion on the part of the Governor and that he cannot be compelled by the Legislature or by this Court to exercise this power or to exercise it in a particular manner. We do not agree, however, that the manner in which the Governor exercises the power is beyond judicial review or judicial control, if the manner in which it is exercised is beyond the Governor's constitutional authority. The power of veto, like all powers constitutionally conferred upon a governmental officer or agency, is not absolute and may not be exercised without any restraint or limitation whatsoever. The very concept of such absolute and unrestrained power is inconsistent with the concept of 'checks and balances,' which is basic to the form and structure of State government created by the people of New Mexico in their constitution, and is inconsistent with the fundamental principle that under our system of government no man is completely above the law. See Jenkins v. Knight, 46 Cal.2d 220, 293 P.2d 6 (1956). We have heretofore recognized the power of the courts to pass upon the validity of a Governor's veto, although not in a mandamus proceeding. Dickson v. Saiz, 62 N.M. 227, 308 P.2d 205 (1957). This Court exercises constitutionally invested original jurisdiction in mandamus against all State officers, boards and commissions. Art. VI, § 3, Constitution of New Mexico; State ex rel. L. v. Marron, 17 N.M. 304, 128 P. 485 (1912). We have recognized mandamus as a proper proceeding in which to question the constitutionality of legislative enactments. State v. Mechem, 56 N.M. 762, 250 P.2d 897 (1952). We fail to understand why it is not a proper vehicle by which to test the constitutionality of vetoes or attempted vetoes by the Governor. Other jurisdictions have utilized it for this specific purpose. State ex rel. Cason v. Bond, 495 S.W.2d 385 (Mo.1973); Fulmore v. Lane, 104 Tex. 499, 140 S.W. 405, 1082 (1911); Commonwealth v. Dodson, 176 Va. 281, 11 S.E.2d 120 (1940).

The next question presented is whether petitioner has standing to seek a writ of mandamus for the purpose of testing the constitutionality of the questioned vetoes. The entire question of standing in New Mexico is somewhat in a state of confusion, and it is impossible to reconcile in principle the many decisions of this Court upon this question. For excellent articles in which the problem is discussed in some depth see Utton, Law of Standing in New Mexico, 2 N.M.L.Rev. 171 (1972); Muir, Ad Valorem Tax Status of a Private Lessee's Interest in Publicly Owned Property: Taxability of Possessory Interests in Industrial Projects Under the New Mexico Internal Revenue Bond Act, 3 N.M.L.REv. 136, 174--180 (1973). However, as conceded by respondents, since State ex rel. Castillo Corp. v. New Mexico St. T. Com'n, 79 N.M. 357, 443 P.2d 850 (1968), and State v. Campbell, 75 N.M. 86, 400 P.2d 956 (1965), it has been clearly and firmly established that even though a private party may not have standing to invoke the power of this Court to resolve constitutional questions and enforce constitutional compliance, this Court, in its discretion, may grant standing to private parties to vindicate the public interest in cases presenting issues of great public importance. There is no claim that the issues here presented are not of great public interest or importance, and we consider them of sufficiently great importance and interest to the public to grant standing to petitioner to raise and present them in these proceedings.

Respondents urge us to follow the course taken in State ex rel. Overton v. New Mexico State Tax Com'n, 81 N.M. 28, 462 P.2d 613 (1969). We decline to do so. Here, as already stated, we are presented with unquestioned issues of great public importance and interest.

Petitioner is a citizen, an elector, a taxpayer, a State Senator, a member of the Senate Finance and Rules Committee, and a member of the Legislative Finance Committee. By failing to predicate our holding as to standing on one or more of these facts, we in no way suggest that one or more thereof would not be sufficient to give petitioner standing in these proceedings. We simply elect to confer standing on the basis of the importance of the public issues involved.

Petitioner's challenges of the vetoes of Subsection L, Section 3, General Provisions, and Section 8, Contingency Clause, have now been abandoned and are no longer before us.

We shall next consider the remaining seven challenged vetoes. However, before undertaking an individual consideration of these challenged vetoes, a resolution, insofar as necessary, as to what is meant by the following quoted language from Art. IV, § 22, supra, would be helpful, since all of these vetoes and attempted vetoes were accomplished pursuant to the authority vested in the Governor by this language:

'* * *. The governor may * * * disapprove any part or parts, item or items, of any bill appropriating money, and such parts or items * * * as are disapproved shall be void unless passed over his veto, * * *.'

The legislative power of the State of New Mexico is vested in the Legislature. Article IV, § 1, Constitution of New Mexico. Except for interest or other payments on the public debt, money shall be paid out of the treasury of the State only upon appropriations made by the Legislature, and every law making an appropriation shall distinctly specify the sum appropriated and the object to which it is to be applied. Article IV, § 30, Constitution of New Mexico. The supreme executive power of the State is vested in the Governor, whose principal function, insofar as legislatively enacted law is concerned, is to faithfully execute these laws. Article V, § 4, Constitution of...