Wood v. State Admin. Bd.

• Citation: 255 Mich. 220,238 N.W. 16
• Decision Date: 10 September 1931
• Docket Number: Motion No. 185.
• Parties: WOOD et al. v. STATE ADMINISTRATIVE BOARD et al.
• Court: Michigan Supreme Court

255 Mich. 220

238 N.W. 16

WOOD et al.

v.STATE ADMINISTRATIVE BOARD et al.

Motion No. 185.

Supreme Court of Michigan.

Sept. 10, 1931.

Questions Certified from Circuit Court, Ingham County, in Chancery; Leland W. Carr, Judge.

Suit by Arthur E. Wood and another against the State Administrative Board and others. On certified questions from the circuit court.

Questions answered.

Argued before the Entire Bench. Charles Fitch Cummins, of Lansing, for plaintiff Joe C. foster.

Edward B. Benscoe, of Detroit, for other plaintiffs.

Paul W. Voorhies, Atty. Gen., and Hugh E. Lillie, Asst. Atty. Gen., for defendants.

FEAD, J.

Plaintiffs filed bill to enjoin the state officers from expending money under the general appropriation law of 1931, House Enrolled Act No. 248, on the claim that if, or parts of it, had not been properly enacted. Defendants, without answering moved to dismiss the bill, and the court has certified six questions for decision.

The act contains a large number of specific appropriations for the various state departments, officers, institutions, and projects. After passage by both houses of the Legislature, it was presented to the Governor on June 5th. On June 17th the Governor transmitted to the House of Representatives, which received it of record June 18, a message to the effect that he had qualifiedly approved the act, but had reduced many of the specific appropriations in amount, without, however, disapproving any of such items in toto. The bill, as qualifiedly approved, was not returned to the House with the message, but was filed in the office of the secretary of state. It was not again passed by the Legislature. The Legislature had adjourned on May 22d to June 18th, held sessions on June 18th and 19th, and adjourned without day on June 19th.

The first two certified questions deal with the right of plaintiffs to maintain the suit and the sufficiency of the bill. Questions of this kind are not of the sort contemplated by the rule for certification, as they are not certainly controlling of the suit, and appeal, of right or by leave, after decision by the trial court, affords a speedy and adequate opportunity for their review. We also suggest that the better practice would have been to require answer of defendants before certification. Questions should be certified only when the facts are all in and when the answers to the questions, whatever they may be, will finally determine the suit. But, on account of the public importance of the issues and because the answers should substantially, if not actually, end the litigation, we will pass upon the other questions presented.

Question No. 3 is: ‘Can the Governor reduce specific items in an appropriation bill‘’ The answer is ‘No.’

Under both the Constitutions of 1850 and 1908, the Governor was given general power to veto bills. In the Constitution of 1908, article 5, § 37, the provision was added: ‘The governor shall have power to disapprove of any item or items of any bill making appropriations of money embracing distinct items; and the part or parts approved shall be the law; and the item or items disapproved shall be void, unless repassed according to the rules and limitations prescribed for the passage of other bills over the executive veto.’

Neither in the debates in the Constitutional Convention (Debates, vol. 1, 493, 494), nor in the Address to the People (Debates, vol. II, 1423), was it suggested that the power given the Governor by section 37 includes authority to reduce an appropriation item. The debates centered extending the general veto power to cover distinct items in appropriation the debates centered upon extending the general an unapproved item and escape the serious alternative of legally approving such item or vetoing the whole bill. In this state the general veto power never has included and does not include the authority to modify a bill or disapprove it in part. Had the Constitutional Convention intended to enlarge such power as applied to items in an appropriation bill, presumably it would have used apt language to do so.

The veto power is a legislative function, although it is not affirmative and creative, but is strictly negative and destructive. It cannot be exercised by the executive except through constitutional grant. By Constitution, article 4, § 1, in harmony with American political theory, the state government is divided into the three historic departments, the legislative, executive, and judicial, and by section 2 it is declared that: ‘No person belonging to one department shall exercise the powers properly belonging to another, except in the cases expressly provided in this constitution.’ This historical and constitutional division of the powers of government forbids the extension, otherwise than by explicit language or necessary implication, of the powers of one department to another. The language of section 37 must be read with all intendments against enlargement beyond its plain words. And if it were ambiguous, the doubt should be resolved in favor of the traditional separation of governmental powers and the restricted nature of the veto.

But the language of the provision is not ambiguous. The power of the Governor under it, like the general veto power, is to approve or disapprove. Neither the language of the section nor its purpose carries necessary implication of power to reduce an item in amount nor, in the ordinary use of words, would such a construction be justified.

This ruling is supported by the weight of authority. Stong v. People, 74 Colo. 283, 220 P. 999;Fairfield v. Foster, 25 Ariz. 146, 214 P. 319;Fergus v. Russel, 270 Ill. 304, 110 N. E. 130, Ann. Cas. 1916B, 1120;Peebly v. Childers, 95 Okl. 40, 217 P. 1049;Mills v. Porter, 69 Mont. 325, 222 P. 428, 35 A. L. R. 592. See, also, Fulmore v. Lane, 104 Tex. 499, 140 S. W. 405, 1082. Standing alone to the contrary is Commonwealth v. Barnett, 199 Pa. 161, 48 A. 976,55 L. R. A. 882, which has been sufficiently criticized by the other courts, sometimes under the guise of distinguishing it, to render unnecessary a statement of further reasons for not accepting it.

Question No. 4.

‘If the Court holds that the Governor cannot reduce items, then the following questions are to be decided:

‘(a) Is such attempted partial veto of specific items a nullity, or

‘(b) Does it veto those items, or

‘(c) The tax clause not being correspondingly reduced, does it invalidate the whole appropriation bill?’

Under the facts here, the action of the Governor in reducing the items, being without warrant of constitutional power, was a complete nullity and did not affect the bill in any way, either as an approval or disapproval of any such items. Peebly v. Childers, supra; Fergus v. Russel, supra; Mills v. Porter, supra; Lukens v. Nye, 156 Cal. 498, 105 P. 593,36 L. R. A. (N. S.) 244,20 Ann. Cas. 158;State v. Holder, 76 Miss. 158, 23 So. 643. But had the bill been returned to the originating house with such reductions, it would have constituted a veto of the objected items.

Question No. 5: ‘Did the appropriation bill as passed by the legislature become a law on account of the failure of the governor to return the bill itself to the House of Representatives along with his veto message?’ The decisive part of this question will be answered later.

Question No. 6: ‘Does the fact that the Legislature adjourned from May 22 to June 18 and thereby prevented the Governor from returning the said House Enrolled Act No. 248 to the House in session until June 18, or eleven days after its presentation to him, constitute the prevention of return by adjournment provided by Section 36 of Article 5 of the Constitution, and thereby cause so much of said bill as was not properly signed by the Governor on June 17 to fail of enactment under said Constitutional provision?’ The answer is ‘No.’

Constitution, article 5, § 36, with the provision indicated in the question in italics, reads in part: ‘Sec. 36. Every bill passed by the legislature shall be presented to the governor before it becomes a law. If he approve, he shall sign it; if not, he shall return it with his objections to the house in which it originated, which shall enter the objections at large upon its journal and reconsider it. On such reconsideration, if two-thirds of the members elected agree to pass the bill, it shall be sent with the objections to the other house, by which it shall be reconsidered. If approved by two-thirds of the members elected to that house, it shall become a law. * * * If any bill be not returned by the Governor within ten days, Sundays excepted, after it has been presented to him, it shall become a law in like manner as if he had signed it, unless the Legislature, by adjournment, prevents its return, in which case it shall not become a law.’

The weight of state authority seems to be that it is only the final adjournment of the Legislature which prevents return of a bill on veto, and that a temporary adjournment does not. 64 A. L. R. 1446, note. Plaintiffs, however, rest strongly on the recent case of Okanogan, etc., Indians v. United States, 279 U. S. 655, 49 S. Ct. 463, 467, 73 L. Ed. 894, 64 A. L. R. 1434, the Pocket Veto Case, in which it was held, both upon reasoning and long governmental practice, that adjournment of the first regular session of a Congress prevents return of a bill to it, although Congress continues in existence for another session.

The court defined the determinative issue as ‘whether it [the adjournment] is one that ‘prevents' the President from returning the bill to the House in which it originated within the time allowed.’ The gist of the opinion is: ‘It follows, in our opinion, that under the constitutional mandate it is to be returned to the ‘House’ when sitting in an organized capacity for the transaction of business, and having authority to receive the return, enter the President's...