This appeal involves questions of a governor's vetoes of two bills passed by the Idaho Legislature in 1976 and forwarded to the Governor for his consideration only after the close of the legislative session. The precise question applicable to both bills is whether the Governor's vetoes were ineffective because not within the time limitation placed upon his veto power by Article 4, § 10, Idaho Constitution, the relevant portions of which are:
The second regular session of the 43d Idaho Legislature adjourned sine die at 11:30 p.m. on March 19, 1976. Eighty-five bills were presented to the Governor after adjournment. Joint Rule 5 of the Senate and House of Representatives provides in part that, "All bills shall be so signed and delivered to the governor for his consideration within 72 hours after final passage." The last bills, including the ones in controversy,
On April 1, prior to 3:10 p.m., the Attorney General delivered a letter to the Secretary of State, plaintiff herein, informing him that ten days since adjournment having expired, the Governor "no longer had the authority to exercise veto power over bills acted upon prior to the 1st day of April, 1976, all such bills automatically becoming law by the passage of time... ." That same day, the Governor purported to veto Senate Bill 1428 and to veto in part Senate Bill 1494, delivering the same to the Secretary of State's office at 3:10 p.m. The Secretary of State, refusing to recognize any veto right in the Governor, designated and assigned appropriate chapter numbers to each, following which he so informed the Governor by letter of April 2, 1976.
To resolve the controversy, the Secretary of State initiated this declaratory judgment action, naming the Governor as defendant. Opposing motions for summary judgment were filed and argument was heard thereon. Summary judgment was granted to the Secretary of State. The district court held that, since it was the obvious intent of the constitutional drafters to allow five days after presentment for consideration by the governor during the session, at least five days after presentment are required for consideration of a bill presented after the legislature has adjourned, even though in some cases the ten days after adjournment provision will be violated. In other words, a governor would have either ten days after adjournment or five days after presentment, whichever was longer, for consideration of a bill presented in the closing hours of the session or at any time thereafter. Since Governor Andrus had had the bills in question for five days after presentment when the ten days after adjournment expired, the attempted vetoes were held to have been ineffective and the bills adjudged to have become law under Article 4, § 10, Idaho Constitution, and I.C. § 67-505. Both parties on appeal challenge the correctness of the district court's holding.
The Governor argues that in order to preserve to his office the full ten days provided for his consideration of a bill presented following adjournment sine die, the ten days should begin to run only from the date upon which a bill is presented to the governor. The Secretary of State urges to the contrary that:
The key issue, then, is whether presentment is required before the governor's time for consideration of a bill begins to run and if so whether the minimum number of days following presentment is to be five or ten. In other words, does this section allow a governor a certain minimum number of days for consideration of bills presented to him within the last five days of the legislative session or after adjournment, or does it establish an absolute deadline of ten days after adjournment for the filing of vetoed bills with the secretary of state.
The Idaho Constitution mandates that every bill passed by the legislature be presented to the governor before it becomes a law, Article 4, § 10. The governor, upon receipt of a bill passed by the legislature has three options: he may sign the bill if he approves it; he may allow it to become law without his signature; or, he may veto it by returning it with his objections to the house in which it originated. Article 4, § 10 has been considered by this Court in three prior cases, in each of which it was held that no bill or portion thereof can become a law
The Hanson case illustrates that it is the substance of the presentment requirement, not merely the formal act, which is of constitutional importance. In that case the rate in a tax bill was lowered by amendment before final passage in the house. "Through oversight or error in enrolling, the house amendment was omitted, and the enrolled bill was signed by the president of the senate and the speaker of the house, and was approved by the governor, in form without the house amendment." Hanson, 81 Idaho at 407, 342 P.2d at 707 (emphasis added). However, certain official documents showed that the governor had approved the bill as passed by the legislature with the rate-lowering amendment. The Court in distinguishing the Katerndahl case focused on the substance of the governor's act of approval:
Id. at 415, 342 P.2d at 713. The Court held that the bill as amended had become a valid law.
The governor's consideration of a bill is an essential element of the legislative process. Id. at 411, 342 P.2d at 711. Presentment provides an opportunity for the governor to give full consideration to a bill as finally passed by the legislature. The wise exercise of the executive right of veto necessarily requires thoughtful deliberation, which in turn requires time commensurate with the responsibility.
In Edwards v. United States, 286 U.S. 482, 52 S.Ct. 627, 76 L.Ed. 1239 (1932), the United States Supreme Court considered the question whether Congress could by adjournment cut off the right of the President to approve a bill which had been presented to him less than ten days prior to adjournment but which he had not yet signed when adjournment occurred. It was there held that the President could sign a bill within ten days after it had been presented to him, irrespective of the adjournment of Congress. Pertinent to the requirement of adequate time for consideration after presentment the Court said:
Id. at 493, 52 S.Ct. at 631.
We full well realize that the Idaho constitutional provision, which requires an active veto to prevent a bill from becoming law after the legislature has adjourned, is quite different in operation from the federal "pocket veto" provision. We nevertheless declare that the same fundamental purpose underlies the requirement of presentment
Counsels' research has produced only one reported case from the 49 other states which is at all similar to the one at bar, State ex rel. Petersen v. Hughes, 372 Ill. 602, 25 N.E.2d 75 (1939). The challenge there was to the Illinois governor's veto
Id. at 78. The Illinois court also considered the legislature's right to present a bill to the governor after adjournment sine die, and upholding such right, the court held that the Illinois constitution must be construed to allow the governor a full ten days for consideration of bills presented after adjournment sine die:
Id. at 80.
The Secretary of State argues that the result in Hughes followed from the Illinois
Other than the teaching of Edwards and the holding of the Hughes case, there is little else to guide us in our interpretation of article 4, § 10, of our Idaho Constitution. The Secretary of State argues that the language of the section is clear and beyond dispute, thus requiring a construction that the ten-day limitation is absolute. We do not see that the language is all that clear. The executive's part in the metamorphosis of a "bill" into law begins only when, after passage of the bill by the legislature, it has been presented to the governor. He can sign it, and it becomes law. He can leave it unattended for five days, the legislature being in session, and it becomes law. But if he does not approve, the legislature being in session, he can return it with his objections. The act of returning it with his objections is the veto of the bill. Nowhere in the Constitution is the governor required to endorse the bill as "vetoed."
Our main concern here begins with the language: "unless the legislature shall, by adjournment, prevent its return." The word "return" assumes delivery or presentment to the Governor — he can not return that which he has not received. The constitutional language is best read on the presumption that the drafters contemplated that every bill would be presented to the governor before the legislative body adjourned.
There is no provision in our Constitution governing the time within which the legislature must present bills to the governor, and it is not for this Court to impose any limitation as to time. The legislature has set for its guidance the time within which, after passage, bills should be presented to the governor. Our Constitution itself contains nothing which precludes presentation of bills more than ten days after adjournment sine die. If we were to hold that the governor was without power to veto a bill more than ten days after adjournment, the legislature would be in a position to defeat at will one of the constitutionally granted powers of a separate and coequal branch of government merely by delaying presentment beyond the time in which the governor could act. A construction of the Constitution which defeats the very purpose of allowing the governor an opportunity to consider the wisdom of a bill is to be avoided.
Furthermore, a construction placing the legislature in control of the time frame available to a governor for consideration of a bill can only lead to an undermining of the dignity of the position to which each of these two equal and coordinate branches of government are entitled in their transactions with each other. While we agree with the district court that it is better for the governor to have a time certain for the performance of his important duties, we do not agree with the trial court's interpolation of the five-day period for return of a bill during the legislative session into the clause dealing with return of a bill following adjournment sine die. The proceedings of the constitutional convention show that that body evidently saw no large issue in a section providing two different time limits. Section 10, as brought before the convention, contained a provision for allowing the governor ten days in which to act during the session. The following proceedings took place:
II Proceedings and Debates of the Constitutional Convention of Idaho 1415 (1912). At most, it appears that the five-day time limit was intended to be controlling while the legislature remained in session so as to afford the legislature a longer opportunity to reconsider disapproved bills. It does not appear that the two time limits are at all related or that the five days must somehow be taken as a universal minimum to be applied both before and after adjournment. If anything, since the ten-day time period after adjournment was not shortened, it appears more firmly entrenched by negative implication.
Unlike the five day period during the session, which affects the conduct of legislative business, the legislature, once it has adjourned, can have no genuine interest in the speed with which a gubernatorial veto is made. It is only the functions and prerogatives of the office of governor which could be made to suffer from an interpretation of article 4, § 10 which would permit less than ten days for consideration of bills following presentment after adjournment. We conclude that the governor has ten full days from the date of presentment in which to consider bills presented to him after adjournment of the Idaho Legislature.
With regard only to Senate Bill 1494, the Governor attempted to veto part of two sentences, doing so as a purported exercise of the partial veto power created by article 4, § 11 of the Idaho Constitution:
The question is whether the Governor's action was a valid exercise of the power granted him by this section. In order to conclude that the partial veto was properly exercised three questions must be answered in the affirmative: (1) Was the bill in question an "appropriation bill" within the meaning of this section? (2) Did the language stricken constitute an "item or items" within the meaning of this section? (3) Was the veto power exercised only in a negative way, and not in an affirmative way? If the answer to any one of these questions be "no," the attempted veto must be held ineffective and void.
Neither party has discussed whether Senate Bill 1494 is in fact an "appropriation bill." The bill is an act of general legislation which, in the first five sections, revises the state employee salary-setting procedure. Section six makes one lump sum appropriation from the general fund to the state board of examiners to be used to supplement appropriations made to the various executive, legislative and judicial state
The title of article 4, § 11, "Disapproval of Appropriation Bills," indicates that this veto section provides for vetoes of appropriation bills as distinct from vetoes of acts of general legislation, which may only be approved in toto or vetoed in toto under the provisions of article 4, § 10. What, then, is an "appropriation bill"? Is it any bill containing at least one appropriation of money, or, is it a bill the sole object of which is to appropriate money for one or more purposes, or is it something in between these two alternatives? The language of the section says that the power of partial veto applies to "any bill making appropriations of money embracing distinct items." This language seemingly excludes bills making only one appropriation embracing one item.
The Oklahoma Supreme Court interpreted an item veto provision applying to "[e]very bill passed by the Legislature making appropriations of money embracing distinct items" to apply only to those bills where more than one item of appropriation was made. Regents of State University v. Trapp, 28 Okl. 83, 113 P. 910 (1911). See generally Commonwealth v. Barnett, 199 Pa. 161, 48 A. 976 (1901) (dissenting opinion).
In Bengzon v. Secretary of Justice, 299 U.S. 410, 57 S.Ct. 252, 81 L.Ed. 312 (1937), the United States Supreme Court considered the item veto power of the Governor General of the Philippines under a statute which read, "The Governor General shall have the power to veto any particular item or items of an appropriation bill, but the veto shall not affect the item or items to which he does not object." The Court clearly distinguished between a bill in the general sense and an appropriation bill:
Id. at 413, 57 S.Ct. at 254. An act of general legislation one section of which appropriated the necessary sum to carry out the purposes of the act was held not to be an appropriation bill. Likewise, the Supreme Court of Mississippi has held that a constitutional provision allowing the partial veto of "any appropriation bill" relates to "general appropriation bills, or those containing several items of distinct appropriations; that is to say, special appropriation bills, with distinct items of appropriation. It applies to such as are made up of parts, and consist of portions separable from each other as appropriations." State v. Holder, 76 Miss. 158, 23 So. 643, 644 (1898). See also Fulmore v. Lane, 104 Tex. 499, 140 S.W. 405, 412, 1082 (1911).
The above discussion is dictum and serves only to give notice that should this issue again come before the Court, fully briefed and argued, we would be inclined to hold, in view of the above authorities, that acts of general legislation containing one item of appropriation for the purpose of implementing the provisions of the act, such as Senate Bill 1494, are not appropriation bills within the meaning of article 4, § 11.
We next consider whether the vetoed language constituted an "item or
The language stricken obviously is not itself an appropriation of money. Rather, it is a condition or proviso directing how the money appropriated shall be spent. Does the governor have the power to veto anything other than a specific appropriation of money? In Wheeler v. Gallet, 43 Idaho 175, 249 P. 1067 (1926), the opinion of the Court listed three dictionary definitions of the word "item."
Our holding here is bolstered by the similar treatment which other courts have given the words "item" and "part" found in a variety of item veto provisions. We found no reported decision discussing the meaning of the word "item" contained in a constitutional provision that approaches similarity to the Idaho provision. However, in two cases construing such provisions it was clearly assumed that "item" meant a money item. Regents of State University v. Trapp, 28 Okl. 83, 113 P. 910 (1911); State ex rel. Jamison v. Forsyth, 133 P. 521 (Wyo. 1913). The majority rule, in cases construing
Our interpretation of the word "item" accords with the purpose for which item veto provisions were inserted into state constitutions, i.e., to prevent the practice of logrolling and the resultant passage of omnibus appropriation bills. Bengzon v. Secretary of Justice, 299 U.S. at 415, 57 S.Ct. at 254; Fairfield v. Foster, 25 Ariz. 146, 214 P. 319 (1923); State v. Holder, 23 So. at 644; State ex rel. Sandaker v. Olson, 65 N.D. 561, 260 N.W. 586 (1935). Such bills combined necessary and proper items of appropriation with unnecessary or even indefensible special interest items. If the only weapon available to the governor to fight such legislation was the general veto power,
Regents of State University v. Trapp, 113 P. at 913. In order to allow the governor a measure of flexibility in dealing with appropriation bills combining several items of appropriation the constitutional framers included an item veto section.
Fairfield v. Foster, 214 P. at 322 (emphasis supplied).
We also note that in the Idaho Constitution there is a section specifically designed to prevent the evil of omnibus bills embracing several subjects of general legislation in one bill or attaching special interest riders to popular and necessary legislation. Idaho Const. art. 3, § 16.
The veto attempted here must fail for the additional, independent reason that any veto power may be exercised only in a negative way. An excellent explanation of the negative nature of the partial veto power appears in State ex rel. Sego v. Kirkpatrick, 86 N.M. 359, 524 P.2d 975, 981 (N.M. 1974):
The language stricken in this instance directed that the appropriation be specifically used to implement the new salary classifications and salary schedule required by other sections of the bill. The elimination of the directory language would have the effect of enlarging the number of state employees who would receive salary adjustments from the money appropriated. It is clear from the Governor's veto message that he intended to alter the scope of the appropriation by the elimination of the condition placed on it by the Legislature:
However laudable the Governor's motives in seeking to correct the Legislature's act of "subverting" its own original intent, it was not for him to decide what the Legislature intended. To allow a partial veto of this type to stand, is to allow the Governor to create a new law that the Legislature did not pass. This clearly is a usurpation of the legislative function and can not be tolerated under the guise of a purported exercise of the power granted by article 4, § 11. Other courts which have considered the question have unanimously concluded that a governor may not veto a condition or proviso of an appropriation while allowing the appropriation itself to stand because that would amount to affirmative legislation by executive edict. Fairfield v. Foster, supra; State v. Holder, supra; City of Helena v. Omholt, 155 Mont. 212, 468 P.2d 764 (1970) (dictum); State ex rel. Sego v. Kirkpatrick, supra; Fulmore v. Lane, supra; Commonwealth v. Dodson, supra.
The attempted partial veto of Senate Bill 1494 was ineffective and void because not within the power of partial veto granted to the governor by article 4, § 11 of the Idaho Constitution.
Affirmed as to Senate Bill 1494. Reversed as to Senate Bill 1428.
No costs allowed.
McFADDEN and BAKES, JJ., concur.
I dissent from Part I of the majority opinion. The district court's interpretation of the time frame involved seems reasonable to me, does less violence to the clear mandate of the Constitution, and should be upheld on appeal.
The problem in this case stems from the delayed presentment. The Constitution gives two different time schedules for vetoes, as pocket vetoes are not allowed. The Governor has either ten days after adjournment or five days after presentment in which to veto a bill.
The Constitution is very clear on the one alternative power, "in which case it shall be filed, with his objections, in the office of the secretary of state within ten days after such adjournment (Sundays excepted) or become law." Idaho Const., art. 4 § 10.
Within ten days after adjournment means exactly what it says. The other way to veto a bill is within five days after presentment. In this case the Governor did neither.
The majority embarks upon a hypothetical situation which presents an abstract problem, but is not warranted by the facts. The bills in this case were presented to the Governor within three days after adjournment of the legislature as required by the rules. There is no reason to speculate as to what would happen were presentment delayed until after ten days from adjournment because that has not happened.
A similar argument was rejected by the Supreme Court of West Virginia:
Capito v. Topping, 65 W.Va. 587, 64 S.E. 845, 847-848 (1909).
The Attorneys General of Oregon have consistently come to the same conclusion on speculation concerning potential for abuse in a like case.
I also note that former Governor Andrus was always previously able to review the work of the legislature within the ten days allotted. Secretary of State Cenarrusa has presented us with a table on gubernatorial action which is relevant in documenting this point.
(Sun.exc) 10th Day Date of No. of Sine die after Last Action
Legislature Year Pages Date Adjourn. by Governor41st 1st Reg. 1971 1,517 Mar. 20 Apr. 1 Mar. 30 *** 41st 1st Extra 1971 43 Apr. 8 Apr. 20 Apr. 13 *** 41st 2nd Reg. 1972 1,373 Mar. 25 Apr. 6 Apr. 3 *** 42nd 1st Reg. 1973 880 Mar. 13 Mar. 24 Mar. 17 *** 42nd 2nd Reg. 1974 3,009 Mar. 30 Apr. 11 Apr. 5 *** 43rd 1st Reg. 1975 857 Mar. 22 Apr. 3 Mar. 31 *** *** Cecil D. Andrus, Governor
In sum, I feel this case should be decided on the facts of what actually happened in the case and not upon speculation and conjecture as to what could possibly happen. The bills were not vetoed within ten days after adjournment, nor were they vetoed within five days after presentment. They should, therefore, become law, as the Idaho Constitution requires.
SHEPARD, C.J., concurs.
Standard Dictionary defines it as:
Id. at 178, 249 P. at 1067.