State v. French

• Decision Date: 03 July 1931
• Docket Number: 30,243
• Citation: 300 P. 1082,133 Kan. 579
• Parties: THE STATE OF KANSAS, ex rel. ROLAND BOYNTON, as Attorney-general, etc., Plaintiff, v. WILL J. FRENCH, as Auditor, etc., Defendant
• Court: Kansas Supreme Court

300 P. 1082

133 Kan. 579

THE STATE OF KANSAS, ex rel. ROLAND BOYNTON, as Attorney-general, etc., Plaintiff, v. WILL J. FRENCH, as Auditor, etc., Defendant

No. 30,243

Supreme Court of Kansas

July 3, 1931

Decided July, 1931.

Original proceeding in mandamus.

Writ issued.

SYLLABUS

SYLLABUS BY THE COURT.

1. STATUTES--Enactment--Approval by Governor. The governor, in attempting to veto a bill, or a separate item in an appropriation bill, is guided by the constitutional provisions relating thereto. They measure the extent and limit of his power and authority.

2. SAME--Veto of Item in Appropriation Bill--Sufficiency. A statement by the governor that he objects to certain items of an appropriation bill, without stating his reasons therefor is insufficient, under our constitution (art. 2, § 14), to constitute an effective veto of such items.

3. SAME--Attempt to Veto--Effect of Insufficiency. An appropriation bill was regularly passed by both houses of the legislature and duly presented to the governor. In due time he signed the bill. He noted objections to certain items without giving any reasons therefor, as required by the constitution. Held, the entire bill became a law.

Roland Boynton, attorney-general, and John G. Egan, assistant attorney-general, for the plaintiff.

Walter T. Griffin and Morris Garvin, both of Topeka, for the defendant.

OPINION

HARVEY, J.:

This is an original proceeding in mandamus to require the state auditor to audit a voucher in favor of C. S. Loper and draw his warrant therefor upon the state treasurer in payment for services rendered the state under the direction of the attorney-general in the case of the State of Colorado v. The State of Kansas and the Finney County Water Users Association, pending in the supreme court of the United States. The question raised is whether there is an appropriation from which the claim can be paid, and that depends upon whether an attempted veto by the governor of certain items of an appropriation bill is effective.

The legislature of 1931 (Laws 1931, ch. 8), in making appropriations for the attorney-general's department, included this item:

"For the purpose of defraying the expenses of contesting the suit of the State of Colorado v. The State of Kansas and the Finney County Water Users Association (unexpended balance at the end of the fiscal year, June 30, 1931, reappropriated for the fiscal year of 1932 and any unexpended balance at the end of the fiscal year 1932 is hereby reappropriated for the fiscal year of 1933), for 1931, $ 5,000; for 1932, $ 5,000."

The bill carrying this item regularly passed both houses of the legislature and was duly presented to the governor. In due time the governor signed the bill and returned it to the house of representatives with this notation:

"EXECUTIVE DEPARTMENT, March 16, 1931.

"To the House of Representatives:

"I am returning herewith house bill No. 663 signed, but with objections to the following items:

"The two items of $ 5,000 each for 1932 and 1933 for paying the expenses of contesting the suit of the State of Colorado v. State of Kansas and the Finney County Water Users' Association;

"The item of $ 900 to the state architect for the year 1931 for mechanical and drafting engineer.

HARRY H. WOODRING, Governor."

The question for our determination is whether this is an effective veto of the items referred to. Our constitutional provision (art. 2, § 14) relating to the governor's veto of a bill, or of separate items of an appropriation bill, reads as follows:

"Every bill and joint resolution passed by the house of representatives and senate shall, within two days thereafter, be signed by the presiding officers, and presented to the governor; if he approve, he shall sign it; but if not, he shall return it to the house of representatives, which shall enter the objections at large upon its journal and proceed to reconsider the same. If, after such reconsideration, two-thirds of the members elected shall agree to pass the bill or resolution, it shall be sent, with the objections, to the senate, by which it shall likewise be reconsidered, and if approved by two-thirds of all the members elected, it shall become a law; but in all such cases the vote shall be taken by yeas and nays, and entered upon the journals of each house. If any bill shall not be returned within three days (Sundays excepted) after it shall have been presented to the governor, it shall become a law in like manner as if he had signed it, unless the legislature, by its adjournment, prevent its return, in which case it shall not become a law. If any bill presented to the governor contains several items of appropriation of money, he may object to one or more of such items, while approving the other portion of the bill; in such case he shall append to the bill, at the time of signing it, a statement of the item or items to which he objects, and the reasons therefor, and shall transmit such statement, or a copy thereof, to the house of representatives, and any appropriations so objected to shall not take effect unless reconsidered and approved by two-thirds of the members elected to each house, and, if so reconsidered and approved, shall take effect and become a part of the bill, in which case the presiding officers of each house shall certify on such bill such fact of reconsideration and approval."

We are not concerned in this case with what is necessary to be done by the governor in order to veto a bill, for the objections of the governor here under consideration did not go to the bill as a whole. He signed the bill. It carried many items of appropriation. He made objections to but three of them. We are concerned here with that part of the constitution which pertains to a bill presented to the governor which contains several items of appropriation of money. The provision with respect to that is:

". . . he may object to one or more of such items, while approving the other portion of the bill; in such case he shall append to the bill, at the time of signing it, a statement of the item or items to which he objects, and the reasons therefor (italics ours) and shall transmit such statement, or a copy thereof, to the house of representatives, . . ."

It is obvious the governor did not fully comply with the constitutional provision. He stated that he objected to certain items, but he did not state the reasons therefor. Is it essential to an effective veto of an item in an appropriation bill that the governor state his reasons for his objection? It should be a sufficient answer to this question to say that our constitution specifically requires that the reasons for the objection be stated. Such has been the uniform practice in this state as shown by our legislative journals. Our federal constitution (art. 1, § 7) contains a provision with respect to vetoing a bill similar to that in our constitution, and it has been the uniform practice of the presidents, in vetoing an act of congress, to state reasons for the veto. (See "Messages and Papers of the Presidents.") There is a reason for this constitutional requirement. The reasons stated by the executive for his veto of a bill, or specific items, must be spread upon the journal, and they form the basis of further consideration of the bill or items for the purpose of determining whether, notwithstanding the objections and reasons therefor given by the executive, the legislature should enact the measure or approve the items by the necessary two-thirds vote. (See 1 Tucker on United States Constitution, § 213.)

In "Veto Power" by Mason, a Harvard historical monograph, tracing the development and operation of the veto power in the government of the United States in 1889, the use of the veto power in England and in the American colonies is discussed. It is pointed out that what was regarded in this country as the abuse of the veto power by the crown was so universally felt that the first clause in the Declaration of Independence set forth as a reason for the separation of the colonies from the mother country, "He [the King] has refused to assent to laws most wholesome and necessary for the public good." The exercise of the veto power by the colonial governors was even more objectionable than that of the crown. As a result of this feeling in the state governments which were formed after the breaking out of hostilities with England the veto power was greatly limited. In several states a commission took the place of a governor. In no state but Massachusetts did the governor have even a qualified veto on acts of the legislature, and that authority was not given until 1780 (§§ 7 and 8), and in Appendix E it is noted that (in 1890) in four states--Rhode Island, Ohio, Delaware, North Carolina--there is no provision for the revision of a bill by the governor. In each of the other states the constitution gave to the governor veto power, but in only one of them--Georgia--could the governor withhold his signature without stating reasons. In discussing the federal constitution it is said (§ 102):

"May a bill be vetoed without stating reasons? All of the presidential vetoes have been accompanied by the reasons for the refusal to sign. Indeed it is difficult to see how any other plan could be followed, since the constitution requires that if the president fails to approve a bill he shall return it, with his objections, to that house in which it shall have originated. Furthermore, it is maintained in a pamphlet by Mr. J. H. Benton, Jr., that the objections assigned must be objections to the intrinsic merits of the bill. He quotes at length from the proceedings of the federal convention, from the Federalist, and from the writings of Madison and Hamilton, to show that the president's authority was similar...