State ex rel. Wiseman v. Oklahoma Bd. of Corrections

• Decision Date: 15 December 1978
• Docket Number: No. 52532,52532
• Citation: 1978 OK 158,614 P.2d 551
• Parties: STATE of Oklahoma ex rel. William J. WISEMAN, Jr., Petitioner, v. OKLAHOMA BOARD OF CORRECTIONS, and Oklahoma Department of Corrections, Respondents.
• Court: Oklahoma Supreme Court

Page 551

614 P.2d 551

STATE of Oklahoma ex rel. William J. WISEMAN, Jr., Petitioner, v. OKLAHOMA BOARD OF CORRECTIONS, and Oklahoma Department of

Corrections, Respondents.

No. 52532.

Supreme Court of Oklahoma.

Dec. 15, 1978.

Order of Jan. 31, 1979.

As Corrected On Denial of Rehearing July 15, 1980.

Application to assume Original Jurisdiction and Petition for Writ of Mandamus directing the Oklahoma Board of Corrections and the Oklahoma Department of Corrections (Respondents) to comply with Section 17 Enrolled House Bill No. 1567 of the 1978 Legislature. Respondents had refused to comply with section 17 because the Governor had vetoed that section but had approved the bill in all other respects.

JURISDICTION ASSUMED; WRIT OF MANDAMUS DENIED.

M. David Riggs, Chapel, Wilkinson, Riggs, Abney & Keefer, Tulsa, for petitioner.

Larry Derryberry, Atty. Gen. of Oklahoma, Gerald E. Weis, Asst. Atty. Gen., Chief, Civil Div., Oklahoma City, for respondents.

IRWIN, Justice.

On the last day of the 1978 regular session of the Legislature, the Senate and House of Representatives passed and presented to Governor David L. Boren Enrolled House Bill No. 1567. Within fifteen days thereafter the Governor approved and signed the bill except he specifically vetoed and disapproved section 17. This section, inter alia, required the Board Of Corrections to establish criteria for recommending inmates to be considered for parole by the Pardon and Parole Board; and required the Department of Corrections to certify to the Pardon and Parole Board the total inmate population incarcerated in the various institutional facilities under their custody. Neither the Board of Corrections nor the Department of Corrections (respondents) complied with section 17 because of the Governor's veto.

In this original proceeding, William J. Wiseman, Jr., (Petitioner) seeks a Writ of Mandamus directing respondents to comply with section 17 notwithstanding its veto by the Governor.

This is a matter of great public concern. Accordingly, we assume jurisdiction under the rationale of Phillips v. Oklahoma Tax Commission, Okl., 577 P.2d 1278 (1978).

House Bill 1567 contained several general legislation (non-appropriation) sections of provisions relating to the operation, duties and responsibilities of the Board of Corrections and the Department of Corrections and their officials and employees. It also contained several sections or provisions making appropriations of money embracing distinct items. Section 17, which the Governor vetoed, involved general legislation as distinguished from an item of appropriation.

The force and effect of the Governor's veto of section 17 and his approving and signing HB 1567 in all other respects is the fundamental issue presented.

The parties concede the Governor's power to approve or disapprove (veto) bills, or parts thereof, is limited by the Constitution and he can act only in the manner specified and can exercise only those powers granted him. Secs. 11 and 12, Article 6, Const. are the only constitutional provisions that discuss a Governor's power to approve or disapprove a legislative bill presented to him. Section 11, Art. 6, Okl.Const. provides:

"APPROVAL OR VETO OF BILLS PASSAGE OVER VETO FAILURE TO RETURN BILL. Every bill which shall have passed the Senate and House of Representatives, and every resolution requiring the assent of both branches of the Legislature, shall, before it becomes a law, be presented to the Governor; if he approve, he shall sign it; if not, he shall return it with his objections to the house in which it shall have originated, who shall enter the objections at large in the Journal and proceed to reconsider it. If, after such reconsideration, two-thirds of the members elected to that house shall agree to pass the bill or joint resolution, it shall be sent, together with the objections, to the other house, by which it shall likewise to reconsidered; and, if approved by two-thirds of the members elected to that house, it shall become a law, notwithstanding the objections of the Governor. In all such cases, the vote in both houses shall be determined by yeas and nays, and the names of the members voting shall be entered on the Journal of each house respectively. If any bill or resolution shall not be returned by the Governor within five days (Sundays excepted) after it shall have been presented to him, the same shall be a law in like manner as if he had signed it, unless the Legislature shall, by their adjournment, prevent its return, in which case it shall not become a law without the approval of the Governor. No bill shall become a law after the final adjournment of the Legislature, unless approved by the Governor within fifteen days after such adjournment." (emphasis ours)

Section 12, Art. 6, Okl.Const. provides:

"APPROPRIATION BILLS APPROVAL OR DISAPPROVAL EMERGENCY BILLS. Every bill passed by the Legislature, making appropriations of money embracing distinct items, shall, before it becomes a law, be presented to the Governor; if he disapproves the bill, or any item, or appropriation therein contained, he shall communicate such disapproval, with his reasons therefor, to the house in which the bill shall have originated, but all items not disapproved shall have the force and effect of law according to the original provisions of the bill. Any item or items so disapproved shall be void, unless repassed by a two-thirds vote, according to the rules and limitations prescribed in the preceding section in reference to other bills: Provided, That this section shall not relieve emergency bills of the requirement of the three-fourths vote." (emphasis ours).

Section 11, relates to "Every bill which shall have passed the Senate and House of Representatives, and every resolution requiring the assent of both branches of the Legislature * * *." Sec. 12, relates to "Every bill passed by the Legislature, making appropriations of money embracing distinct items, * * *." The above quoted portion of Sec. 11 is general, and standing alone, would indicate that Sec. 11 would include every kind of bill, i. e., all general legislation bills and all appropriation bills. This is particularly true since Sec. 11 makes no reference to the kind of bills that come within its purview. However, that part of Sec. 12 quoted above particularizes and defines the kind of bills it deals with, i. e., "Every bill * * * making appropriations of money embracing distinct items." The presumption and legal intendment is that each and every clause in a Constitution has been inserted for some useful purpose and the entire Constitution must be construed as a whole. It would therefore follow that "Every bill * * * making appropriations of money embracing distinct items" is not within the purview of Sec. 11, but is governed by Sec. 12. At least the appropriation provisions or sections would be under Sec. 12.

This Court discussed the application of sections 11 and 12 in Carter v. Rathburn, 85 Okl. 251, 209 P. 944 (1922). In discussing Sec. 11, the Court said:

"Section 11 above applies to all bills as a whole. That is, bills in their entirety. No bill in its entirety becomes a law without compliance with the provisions of said section. Any bill becomes a law as a whole when such provisions are complied with. The provisions are plain and, in our opinion, need no construction further than that they mean what they say."

The Court observed with respects to Sec. 12 that an exception to the general provisions of Sec. 11 was created to specifically deal with an appropriation bill making appropriations for distinct items. The Court said: " * * * (the Constitutional Convention) in order to relieve such a bill from the restrictions imposed under Sec. 11, supra, and to free it from danger of being defeated as a whole, made provisions whereby separate items in such a bill may be disapproved and cut out by the Governor without affecting the bill in its entirety."

Another distinction between Section 11 and 12 should be mentioned at this time. Under Sec. 11 "No bill shall become a law after the final adjournment of the Legislature, unless approved by the Governor within fifteen days after such adjournment." Under this proviso an affirmative approval by the Governor is necessary for a bill to become law. Although Sec. 12 provides for the disapproval of a bill by the Governor "or any item, or appropriation therein contained," it contains a proviso that "all items not disapproved shall have the force and effect of law according to the original provisions of the bill." A fair reading of Sec. 12 indicates that any item not disapproved by the Governor shall have the force and effect of law.

HB 1567, now under consideration, not only contains several sections or provisions "making appropriations of money embracing distinct items," but also contains several general legislation sections or provisions which may be categorized as "non-appropriation" sections or provisions. It necessarily follows that parts of HB 1567 are dealt with by Sec. 11 and parts of it are dealt with by Sec. 12.

Regents of State University v. Trapp, 28 Okl. 83, 113 P. 910 (1911), and Peebly v. Childers, 95 Okl. 40, 217 P. 1049 (1923), clearly show a distinction between the operative effect of Secs. 11 and 12 when an appropriation bill containing only one item of appropriation is presented to the Governor and when a bill "making appropriations of money embracing distinct items" is presented. The appropriation bill in Trapp embraced only one item of appropriation and also contained a section setting forth how the appropriation would be apportioned. The bill was presented to the Governor less than five days before the final adjournment of the Legislature. The Governor, within fifteen days after the Legislature adjourned, reduced some of the items of apportionment, and, as thus reduced, approved the bill. In Trapp, the Court held:

"Section 12, Art. 6, Const., providing that the Governor may...