The Veto Case

• Decision Date: 11 January 1924
• Docket Number: 5439.
• Citation: 222 P. 428,69 Mont. 325
• Parties: THE VETO CASE. v. PORTER, STATE AUDITOR, ET AL. MILLS
• Court: Montana Supreme Court

222 P. 428

69 Mont. 325

THE VETO CASE.

MILLS v. PORTER, STATE AUDITOR, ET AL.

No. 5439.

Supreme Court of Montana

January 11, 1924

Original injunction suit by R. M. Mills against George P. Porter State Auditor, and another. Judgment for plaintiff.

Holloway J., dissenting.

E. G Toomey, of Helena, amicus curiæ.

W. D. Rankin, Atty. Gen., for respondents.

CALLAWAY C.J.

The plaintiff, a citizen and taxpayer of the state, asks for an injunction to restrain the state auditor from issuing any warrants of the state of Montana on account of salaries and expenses of the auditor's department for the month of December, 1923, and to restrain the state treasurer from paying such warrants. Defenants have interposed a general demurrer to the complaint. The action involves the power of the Governor to veto an item in a general appropriation bill. The attack in the instant case is upon an act of the Eighteenth Legislative Assembly, designated House Bill No. 402 (Laws 1923, p. 583), entitled "An act appropriating money for the operation and maintenance of certain of the * * * boards, commissions and departments of the state of Montana for the period beginning July 1, 1923, and ending June 30, 1925." The bill was passed by both houses of the Legislature on March 1, 1923, and was transmitted to the Governor on that day. It bears this indorsement:

"Approved subject to the limitation of appropriation items as specifically set forth in the accompanying letter of transmittal. * * *

"Jos. M. Dixon, Governor.

In the letter of transmittal to the secretary of state the Governor said:

"Under the provisions of section 13 of article 7 of the Constitution, I withhold my approval from the various items of said appropriation bill contained in section 1 thereof as follows."

He then set forth his action upon the ten items of section 1 of the bill, these relating to appropriations for the fiscal year beginning July 1, 1923, and ending June 30, 1924. One of the items was approved and one disapproved. Action upon the others is fairly indicated by that taken respecting the item relating to the office of the state auditor (upon which plaintiff's complaint is based) which reads as follows:

"As to the items of said bill, 'For the salaries and expenses of the office of the state auditor, $83,600.00,' I withhold my approval from said sum of $5,016.00, or the equivalent of six per cent. (6%) and approve the same only in the sum of $78,584."

As illustrative of the action of the Governor--and this is set forth so that the entire matter may be well understood--the item for the salaries and expenses of the office of the Attorney General was scaled 10 per cent.; of the office of the adjutant general 20 per cent.; of the secretary of state 10 per cent.; of the state treasurer 3 per cent.; for publishing the state treasurer's quarterly report 10 per cent.; of the office of railroad commission 15 per cent.; of the office of purchasing agent 5 per cent. Section 2 of the bill relating to appropriations for the year 1924-25 contained items which were scaled from 3 to 20 per cent. In his letter the Governor said:

"I take this action in withholding approval of specific sums and percentages, as set forth above, as against the various items of appropriation on account of the provisions of section 12 of article 12 of the state Constitution which provides: 'No appropriation shall be made or any expenditures authorized by the legislative assembly whereby the expenditures of the state during any fiscal year shall exceed the total tax then provided for by law.' "

He had been informed by the state auditor and state treasurer, he said, that the amounts appropriated would exceed the tax provided by law, and he therefore withheld his approval "of the above items of appropriation in the amounts specifically set forth in order to bring the revenues of the state, for the fiscal years for which the appropriations above set forth have been made, within the revenues of the state for the corresponding fiscal periods. With the exception of deductions in appropriations above noted, I hereby approve the bill."

By reason of the adjournment of the legislative assembly, the Governor was prevented from returning the bill within five days after it was presented to him.

The question presented for solution may be resolved into two parts: (1) Has the Governor the power to veto a part of an item in an appropriation bill; and (2) if he has not, what was the effect of his action upon the items he attempted to scale?

The subject is of first impression in this state. Prior to this year the Governor has not attempted to take such action.

1. At the outset it is well to bear in mind our fundamental American theory that the people have an original right to establish for their government "such principles, as, in their opinion, shall most conduce to their own happiness," and also that this original and supreme will has organized the government, and has assigned to the three different departments powers which they may not transgress. Marbury v. Madison, 1 Cranch, 137, 2 L.Ed. 60. The founding fathers sought to establish a system of checks and counter checks to maintain in proper poise the several departments to the end that neither should encroach upon the rightful powers of the other. They understood clearly the historic tendency of one department of government to usurp the functions of another. Norton, The Constitution of the United States, 42. The evils following the exercise of unrestrained authority, in some instances by the executive, and in others by the Parliament, were written large upon the pages of the history of England. These evils our forefathers sought to avoid by written Constitutions.

The distribution of governmental powers is thus declared in section 1 of article 4 of Montana's Constitution:

"The powers of the government of this state are divided into three distinct departments: The legislative, executive and judicial, and no person or collection of persons charged with the exercise of powers properly belonging to one of these departments shall exercise any powers properly belonging to either of the others, except as in this Constitution expressly directed or permitted."

See State ex rel. Schneider v. Cunningham, 39 Mont. 165, 101 P. 962.

These restrictions were prescribed in order that "it may be a government of laws and not of men," as is declared in the Constitution of Massachusetts (Declaration of Rights, art. 30); or, as Jefferson expressed it:

"In questions of power, then, let no more be heard of confidence in men, but bind him down from mischief by the chains of the Constitution."

By the Constitution, the people, except as they have expressly or impliedly withheld it, reposed in the Legislature the whole lawmaking power of the state. People v. Draper, 15 N.Y. 532. Said Judge Cooley:

"In creating a legislative department and conferring upon it the legislative power, the people must be understood to have conferred the full and complete power as it rests in, and may be exercised by, the sovereign power of any country, subject only to such restrictions as they may have seen fit to impose, and to the limitations which are contained in the Constitution of the United States. The legislative department is not made a special agency for the exercise of specifically defined legislative powers, but is intrusted with the general authority to make laws at discretion." Constitutional Limitations (7th Ed.) p. 126.

As a restriction, a check, upon the comprehensive power granted to the legislative assembly, the people through the Constitution intrusted to the Governor the veto power. His function with respect to legislation is based, not upon a limitation, but upon a grant, of power.

The veto is a survival of the lawmaking authority vested in the King of England as a constituent of the third body of the Parliament, in which he might, and at one time not infrequently did, sit in person. The power existed in the Colonies, and from these it passed with various limitations into nearly all the American Constitutions. Originally the power was intended mainly as a means of self-protection by the executive branch against the encroachments of the legislative branch, but it has been used since as a check upon hasty or inconsiderate as well as unconstitutional legislation. 25 R. C. L. 888.

While the supreme executive power of this state is vested in the Governor (Constitution, art. 7, § 5), he is forbidden to exercise any legislative function except that granted to him expressly by the very terms of the Constitution. Lukens v. Nye, 156 Cal. 498, 105 P. 593, 36 L. R. A. (N. S.) 244, 10 Ann. Cas. 159; Fergus v. Russel, 270 Ill. 304, 110 N.E. 130, Ann. Cas. 1916B, 1120; Stong v. People (Colo.) 220 P. 999, decided December 3, 1923. The Supreme Court of California, in Lukens v. Nye, supra, says:

"His powers, as a part of the legislative department, are specifically enumerated in the Constitution. * * * When exercising these powers he is a special agent with limited powers, and as in the case of other special agents, he can act only in the specified mode and can exercise only the granted powers."

The power of the Governor over legislation by the exercise of the veto "can only be exercised when clearly authorized by a specific provision of the Constitution." Stong v. People, supra.

The veto is distinctly a negative, not a creative, power. The general rule is that the Governor may not exercise any creative legislative power whatsoever; and it is so in Montana.

"The executive, in every republican form of government, has only a qualified and destructive legislative function and never creative legislative power." State v. Holder, 76 Miss. 181, 23 So. 643; Fergus v....