State Ex Rel. Wiseman v. Oklahoma Board of Corrections

614 P.2d 551

• Court: Supreme Court of Oklahoma
• Decided: July 15, 1980
• Docket: 52532
• Status: Published

Opinions

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 disapprove any item of a bill making appropriations of money embracing distinct items, does not apply to a special appropriation bill containing only one item of appropriation for the support and maintenance of the State University; and the act of the Governor approving the bill in part and disapproving other parts thereof, directing how the funds appropriated shall be apportioned, is a nullity.”

The Court said that Sec. 11 of Art. 6 of the Constitution:

“ * * * grants to the Governor the legislative power of the veto. By reason of that section no bill which is sent to the Governor less than five days before the adjournment of the Legislature can become a law without the approval of the Governor, unless passed over his veto; and it cannot become a law with his approval, unless approved by him within 15 days after such adjournment. By the veto power conferred upon the Governor by this section, he is authorized to approve or disapprove an act only in toto. He may not approve a part and disapprove a part, but section 12, art. 6, Const., provides for an exception, in that by it power is conferred upon the Governor to approve some items of certain bills and disapprove others.” (emphasis ours)

Since the Legislative bill in Trapp contained only one item of appropriation and came within the purview of Sec. 11 and was presented to the Governor less than five days before final adjournment, it was necessary for the Governor to approve the bill in toto for it to become law. An affirmative approval was essential. Having no authority to approve it in part and veto it in part, the Governor’s attempt to do so was a nullity. Since the Governor did not approve the bill as required by Sec. 11, the bill did not become law.

In Peebly, supra, the Legislature had passed and presented to the Governor what was generally known as the “Institution bill”, which made appropriations for numerous institutions within the State, among these being an appropriation for salaries to the State University of $700,000.00 for the year ending June 30, 1924, and $720,000.00 for the year ending June 30, 1925. The Governor, after the final adjournment, drew a line through the $700,000.00 and the $720,000.00 appropriations and then wrote “approved in the sum of $500,000.00 only.” After reducing other items of the bill in the same manner and disapproving other items in full, the Governor appended thereto the following words in reference to the State University appropriation.

“Approved * * * except as to item stricken and specifically disapproved and except as to the following items: Page 2, State University * * * salaries $700,-000.00 reduced to $500,000.00 and $720,-000.00 reduced to $500,000.00. Signed J. C. Walton, Governor.”

The plaintiff in Peebly, supra, who sought to enjoin the payment of salaries for the University under the “Institutional bill”, urged that Trapp, supra, was applicable and that under Trapp, the appropriation bill was a nullity.

The Court in Peebly said that under Sec. 11 an affirmative approval was essential to a bill becoming a law, while under Sec. 12, no affirmative action on the part of the Governor was necessary to vitalize a bill making appropriations of money embracing distinct items, but in order to veto any appropriation or distinct item the governor was required to disapprove the objectionable appropriation or item in toto. The Court held that the action of the Governor in attempting to partially approve and partially disapprove an individual distinct item in the Institutional Appropriation Bill was an unauthorized and futile gesture wholly ineffective for any purpose. Thus, the Institutional Appropriations Bill had the force and effect of law according to its original provisions.

Most certainly the Governor could have successfully exercised the partial veto as to the entire $700,000.00 appropriation for the fiscal year of 1924 or the entire $720,000.00 appropriation for the fiscal year of 1925, but he could not reduce those appropriations and as reduced approve the bill. Since the governor had no authority to partially veto each separate appropriation and since Sec. 12 provides that bills making appropriations of money embracing distinct items need not have the approval of the governor to become law, the exercise of the veto power in an unauthorized manner had no effect whatsoever.

The Trapp and Peebly cases support the following: Sec. 11 of Article 6, Const., is applicable to general legislation bills (non-appropriation bills) and bills containing only one item of appropriation. Bills falling within this category may not be approved in part and disapproved (vetoed) in part, but the governor must approve or disapprove such bill in toto. An affirmative, unqualified approval is essential for all or any part of the bill to become law and a qualified approval is ineffectual for any purpose and is a nullity. A qualified approval is tantamount to a “pocket veto” and the bill does not become law.

Section 12 of Art. 6, Okl.Const., is an exception to Sec. 11, and is applicable only to a bill “making appropriations of money embracing distinct items.” No affirmative action on the part of the governor is necessary to vitalize a bill making appropriations containing distinct items because all items not disapproved shall have the force and effect of law. However, in order to disapprove any distinct item, the governor is required to disapprove the objectionable item in toto. Any attempt to disapprove a distinct item in part is unauthorized and wholly ineffectual for any purpose and is tantamount to it “not being disapproved” and such item of appropriation shall have the force and effect of law.

Since Trapp involved an appropriation bill containing only one item of appropriation and Peebly involved an institutional bill “making appropriations of money embracing distinct items”, neither decision discussed the specific kind of bill presented in the case at bar, i. e. a bill containing several general legislation sections or provisions and several sections or provision making appropriations of money embracing distinct items. The Governor did not disapprove (line item veto) an appropriation of money embracing a distinct item in the case at bar but vetoed a general legislation provision. Query: When a bill is presented to the Governor which contains general legislation provisions and other provisions making appropriations of money embracing distinct items, is the Governor’s power of veto prescribed by sec. 11 or sec. 12 or both?

In our opinion, neither sec. 11 nor sec. 12 operates to the exclusion of the other. To hold that they did would not only do violence to the Constitution, but would violate the underlying philosophy in Trapp and Peebly. Although sec. 11 makes no reference to the kind of bills that fall within its field of operation, sec. 12 is very clear in limiting its operation to bills “making appropriations of money embracing distinct items.” The language of sec. 12 permits no other reasonable conclusion. HB 1567 is a bill “making appropriations of money embracing distinct items”, although it is at the same time a bill containing provisions of a general legislative nature. The Governor may disapprove any multiple appropriation bill as a whole “or any item, or appropriation therein contained, * * * but all items not disapproved shall have the force and effect of law according to the original provisions of the bill.” The word “item” is used consistently throughout the section and from the outset, it is used in connection with the appropriation of money. Nothing in sec. 12 suggests or indicates that it is applicable to bills relating to general legislation, or any general legislation provisions.

Since sec. 12 is applicable only to bills “making appropriations of money embracing distinct items”, the Governor’s authority to approve or veto general legislation (non-appropriation sections or provisions) must be found in sec. 11. As stated in the Trapp case, “[B]y the veto power conferred upon the Governor by this section, he is authorized to approve or disapprove an act only in toto. He may not approve a part and disapprove a part, * * *

Were we to hold the Governor’s power to veto was controlled entirely by sec. 11, to the exclusion of sec. 12, the Governor’s qualified approval in the case at bar would be ineffective and no part of HB 1567 would have become law under Trapp, supra. Such a holding would deprive the Governor of his constitutionally granted power to line item veto any appropriation or item of appropriation in a bill making appropriations of money embracing distinct items. On the other hand, were we to hold sec. 12 to be exclusively applicable without reference to sec. 11, the Governor would be granted by judicial construction a new veto power not contemplated by the constitution, i. e. the power to line item veto general legislation provisions. The only logical conclusion clearly within the framework of secs. 11 and 12, is to hold, and we do hold, that the general legislation provisions of HB 1567 are controlled by sec. 11 and the provisions making appropriations of money embracing distinct items are controlled by sec. 12.

Since the Governor had to affirmatively approve all of the general legislation provisions of HB 1567 for such provisions to become law, and the Governor’s approval was qualified by reason of his vetoing sec. 17, his qualified approval was a nullity. The Governor, having failed to approve HB 1567 within fifteen days after the adjournment of the Legislature, the general legislation sections or provisions of HB 1567 failed to become law. Since none of the general legislation provisions of HB 1567, including sec. 17, became law, petitioner is not enti-tied to a writ directing respondent to comply with sec. 17. However, since the Governor did not disapprove any item or items of appropriation contained in the bill, all appropriation items have the force and effect of law according to the original provisions .of HB 1567, because they do not need specific approval from the Governor to become law.

Respondent argues that sec. 17 of HB 1567 bears no legitimate connection with or natural relation to the appropriations made by HB 1567, or for that matter, any of the general legislation sections of the bill. Respondent contends sec. 17 is invalid under the one subject standard set forth in sections 56 and 57 of Art. V, Okl. Const. In view of our reaching the conclusions heretofore set forth and for the further reason neither party contends the remainder of HB 1567 is unconstitutional, we will not consider or determine whether HB 1567 contravenes sections 56 and 57, supra. See Schwartz v. Diehl, Okl., 568 P.2d 280 (1977), wherein we said that Courts will pass upon the constitutionality of a statute only when it is necessary to a determination of the merits of the ease.

The orderly administration of our state government, and in particular the operation of the Oklahoma Board of Corrections and the Oklahoma Department of Corrections, require the effective date of this decision be postponed until some future date. It is therefore ordered that this decision shall become effective at 12:01 o’clock A. M. Thursday, February 1, 1979.

APPLICATION TO ASSUME ORIGINAL JURISDICTION GRANTED; PETITION FOR WRIT OF MANDAMUS DENIED.

Justice Denver N. Davison, having certified his disqualification by reason of his pending retirement, District Judge Charles L. Owens was appointed Special Justice in his stead. Justice Rudolph J. Hargrave, Justice Davison’s successor in office, honored the special appointment and did not participate.

Justice William A. Berry, having certified his disqualification by reason of his pending retirement, District Judge Alma J. Wilson was appointed Special Justice in his stead. Justice Marian P. Opala, Justice Berry’s successor in office, honored the special appointment and did not participate.

HODGES, C. J., LAVENDER, V. C. J., BARNES, J., and OWENS, Special Justice, concur. WILLIAMS, SIMMS and DOOLIN, JJ., and WILSON, Special Justice, dissent.

WILSON, Special Justice, joins with SIMMS, J., concurring in the dissenting views ■ filed and promulgated herein by DOOLIN, J.

WILLIAMS, J., presents dissenting opinion for filing and promulgation.

Thereupon,

Rehearing is denied.