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ANNOTATED CITATIONS OF ITEM VETO1 CASES-Continued

City of Camden v. Byrne, 411 A.2d 462 Several municipalities and counties complained that the governor's item vetoes in (N.J. 1980).

the general appropriation act deprived them of the disbursement of state revenues authorized by previous statutes. The court upheld the item vetoes and denied that the previous statutes constituted appropriations. The court noted that the purpose of a general appropriation act was to remedy the piecemeal system of state financing that had allowed automatic access to dedicated revenues.

Commonwealth v. Barnett, 199 Pa. 161 Although the Pennsylvania constitution did not expressly authorize the governor to (1901). reduce an appropriation item, the court upheld his action, noting that previous governors had reduced items and the legislature had acquiesced.

Commonwealth v. Dodson, 176 Va. 281 Items "tied up" with other provisions cannot be vetoed. Conditions on appropriations (1940). cannot be vetoed. Dickinson v. Page, 120 Ark. 377 (1915)..... Governor's item veto was sustained on the theory that his writing "disapproved and vetoed" across the face of an item constituted substantial compliance with the state constitution's requirement that he state his objections and that he give notice by public proclamation.

Dickson v. Saiz, 62 N.M. 227 (1957) ...

Court allowed governor to exercise item-veto power even though bill was general legislation which only incidentally contained item of appropriation. The state constitution authorized item veto for "any bill appropriating money," which the court said was not synonymous with "general appropriation bill."

Division of Bond Finance v. Smathers, 337 Governor vetoed a proviso in an appropriation bill. Without deciding the constitutionSo.2d 805 (Fla. 1976). ality of his item veto, the court held that the proviso violated the state constitution's requirement regarding the issuance of state bonds.

Elmen v. State Bd. of Equal. & Assess., The Nebraska constitution required a three-fifths majority in each House to increase 231 N.W. 771 (Neb. 1930).

Elmhurst Convalescent Center, Inc. v.
Bates, 348 N.E.2d 151 (Ohio 1975).
Esrskine v. Pyle, 51 S.D. 262 (1927).

budget estimates recommended by the governor. In the face of such supermajorities, he could not exercise his item veto. The court held that the three-fifths majority could be on final passage of the bill and not necessarily on the amendment proposing an increase. The governor's item vetoes in this instance were therefore invalid and of no effect. [See State ex rel. Meyer v. State Bd. of Equal. & Assess. (1970)]

The governor's veto of a proviso in an appropriation bill was upheld by the court, which interpreted the proviso as an "item."

The court rejected plaintiffs' contention that general appropriation bills were subject to the governor's item veto, not to his general veto.

Fain v. Chapman, 619 P.2d 353 (Wash. The court upheld the governor's veto of approximately forty-five words of a section, 1980).

which it held to be a discrete subject, even though the constitution states that the governor "may not object to less than an entire section." The court said that what constitutes a "section" is a judicial, not a legislative, question.

Fairfield v. Foster, 25 Ariz. 146 (1923)........ Although the governor may not reduce an appropriation item (as was sanctioned in

Fergus v. Russel, 270 III. 304 (1915)........

Commonwealth v. Barnett) and may not veto a condition or proviso of an appropriation while allowing the appropriation to stand, neither can the legislature blunt the governor's item-veto power by calling specific sums a "direction" instead of an "item."

From the item "$2500 per annum" the governor struck "per annum," thereby cutting in half a biennial appropriation. He also reduced "$4500 per annum" to "$3500 per annum." The court held that the governor could not disapprove part of an item. He had to disapprove an item in toto.

Fitzsimmons v. Leon, 141 F.2d 886 (1st Governor cannot reduce an item when that would violate Puerto Rico's Organic Act, Cir. 1944). which provided that "no law shall . . . diminish [a public officer's] salary or emoluments after his election or appointment." [See Blanch v. Cordero (1950)] Freeman v. Treen, 442 So.2d 757 (La. An appellate court reversed the trial court's issuance of a preliminary injunction of 1983).

the governor's item veto of salaries in the lieutenant governor's office. The lieutenant governor failed to make a prima facie case showing either that the veto was unconstitutionally exercised or that it irreparable harmed his office. Fulmore v. Lane, 104 Tex. 499 (1911)......... The legislature appropriated the item of $83,160 for a two-year period, which the

court interpreted as two items of $41,580. The governor vetoed the larger amount and also the second $41,580, assuming that the first $41,580 would cover both years. He also vetoed a lengthy paragraph (called a "guidance provision") which spelled out in considerable detail how funds should be spent. The court held that the item veto did not extend to legislative language. Green v. Rawls, 122 So.2d 10 (Fla. 1960).. Governor may veto item within an item (a portion an appropriation item setting forth maximum salaries for certain specified officers). [See Brown v. Firestone (1980)]

Hallin v. Trent, 619 P.2d 357 (Wash. Governor's veto of a section requiring the filling of new judicial positions by election 1980). was upheld, allowing him to use his appointing power to fill the "vacancies."

ANNOTATED CITATIONS OF ITEM VETO1 CASES-Continued

Helena v. Omholt, 155 Mont. 212 (1970).... Legislature may not pass an appropriation bill that contains a separate section restricting the distribution of appropriated funds. Such a device would blunt the governor's line-item veto power.

Henry v. Edwards, 346 So.2d 153 (La. Governor cannot veto condition without also vetoing item of appropriation. However, 1977). "inappropriate provisions" inserted by legislature in appropriation bill are "items" subject to governor's item-veto authority. Free-standing provisions, unconnected to an appropriation, can be vetoed. Also, cannot put substantive legislation in an appropriation bill.

In re Karcher, 462 A.2d 1273 (N.J. 1983).. Governor may not use item veto against a nonappropriation item, even when he regards it as unconstitutional. It is for the court to declare such matter unconstitutional, which it did in this case. His line-item veto power, however, extends to a bill dealing with distribution of franchise and gross receipts taxes.

In re Opinion to the Governor, 239 So.2d 1 Governor claimed that the legislature had written the general appropriation bill in (Fla. 1970).

such a way to preclude his exercise of item-veto authority. The court disagreed. The state constitution prohibits the governor from vetoing "any qualification or restriction without also vetoing the appropriation to which it relates."

Jessen Associates, Inc. v. Bullock, 531 Governor may not veto an appropriation rider that merely authorizes and does not S.W.2d 593 (Tex. 1975). appropriate. Rider was germane to the appropriation bill.

Karcher V. Kean, 479 A.2d 403 (N.J. The court broadly defended the governor's use of line-item veto power, including the 1984). striking of conditions. The New Jersey constitution allows the governor to object "in whole or in part" to any item.

Lee v. Dowda, 155 Fla. 68 (1944)

Lukens v. Nye, 156 Cal. 498 (1909)

May v. Topping, 65 W.Va. 656 (1909).

Section 14, which the governor item-vetoed, was unconstitutional and void because Section 30 of the state constitution prohibits laws making appropriations for salaries from containing provisions on other subjects.

Governor tried, by drafting an agreement with claimants, to reduce an appropriation item. The court held that the agreement was void. Governor had to approve or disapprove an item in whole.

Item veto was disallowed by the court because the governor failed to follow the state constitution's requirement that he express his disapproval to the legislature before it adjourns. Immediately before adjournment the governor told legislators that he had no further communication to make.

McAlester v. Oklahoma Tax Commission, Governor's item-veto authority applies only to appropriation bills. Other bills require 174 Okla. 322 (1935).

Miller v. Walley, 122 Miss. 521 (1920)...

Millett v. Frohmiller, 66 Ariz. 339 (1948)....

Mills v. Porter, 69 Mont. 325 (1924).

approval, or disapproval, in toto.

Governor cannot veto condition (which he called legislation on an appropriation bill).

Case indirectly involved the governor's valid use of item veto in a general appropriation bill.

Governor could not reduce an appropriation item, even with the state's balanced budget requirement.

Nowell v. Harrington, 122 Md. 487 Involved the reduction of an appropriation item, but the court withheld judgment on (1914). the governor's authority.

Opinion of the Justices, 294 Mass. 616 Governor improperly item-vetoed a condition on an appropriation. Words or phrases (1936). are not "items or parts of items." [But see Opinion of the Justices, 384 Mass. 820 (1981)]

Opinion of the Justices, 210 A.2d 852 Governor had no authority to item veto a nonappropriation bill. Since the entire bill (Del. 1965). did not receive his approval, the bill failed of enactment.

Opinion of the Justices, 349 Mass. 804 (1965).

Opinion of the Justices, 306 A.2d 720 (Del. 1973).

Governor improperly exercised his item-veto power on a bill that was not an "appropriation."

Governor's item-veto power applies only to items of appropriations and not to conditions. The state constitution limits the governor's power to disapproving "any item or items of any bill making appropriations of money... Opinion of the Justices, 373 Mass. 911 Although the governor cannot veto a condition or restriction on an appropriation (1977).

item, the legislature cannot neutralize the item-veto power through a two-step process: enacting a noncontroversial appropriation and later enacting a controversial restriction on the appropriation. The governor may item veto the latter. Opinion of the Justices, 384 Mass. 820 Governor may treat as an "item" any separable provision that is attached to the (1981). general appropriation bill. [Compare to Opinion of the Justices, 294 Mass. 616 (1936)]

Opinion of the Justices, 384 Mass. 828 Governor may disapprove restrictive words and phrases imposed on an appropriation (1981). item where they were separable. In one case the restrictive language was not separable.

Orleans Parish School Board v. Louisiana
State Board of Education, 215 La. 703

(1949).

Governor's veto of several appropriation items did not nullify the remainer of the section.

Patterson v. Dempsey, 152 Conn. 431 Governor's item-veto power is restricted to appropriation items. He was without (1965). authority to veto three sections constituting items of general legislation.

ANNOTATED CITATIONS OF ITEM VETO 1 CASES-Continued

Peabody v. Russel, 302 III. 111 (1922) ...... The legislature provided a "reserve fund" of $500,000 to be apportioned among the

Peebly v. Childers, 95 Okla. 40 (1923)... People ex rel. I.F.T. v. Lindberg, 60 III.2d 266 (1975).

People v. Brady, 277 III. 124 (1917).....

People v. Russel, 311 III. 96 (1924)...

executive, judicial, and military departments in response to emergencies. The court held the fund to be unconstitutional and void because it failed to adhere to Section 16 of Article V, which requires appropriation bills to "specify the objects and purposes" and to appropriate in "distinct the objects and purposes" and to appropriate in "distinct items and sections." Court claimed that indistinct funding hampered the governor's item-veto power, although two judges dissented on that ground.

Governor cannot reduce appropriation items; must disapprove them in toto. Court denied that three teachers' pension plans were compulsory in nature and therefore immune from the governor's power to veto or reduce items.

A gross sum was subdivided into purposes. Governor could item veto the latter, in effect allowing him to reduce the gross sum. The subdivisions were not mere apportionments, as in Regents v. Trapp (1911).

The court rejected the petitioner's claim that the governor's item-veto authority could not be directed against the salaries appropriated for assistant attorneys general. Petitioner argued that once the legislature had created an office and fixed the salary, the governor could not item veto the appropriation. Petitioner also argued that the salaries of state officers were constitutionally protected. Court denied that salaries were excluded from the governor's authority to veto items.

People v. Tremaine, 252 N.Y. 27 (1929)..... The governor vetoed a section in an appropriation bill which sought to require the approval of two congressional committee chairmen before expending certain funds. The court held that the section was unconstitutional and could be removed while leaving the appropriations intact.

Perry v. Decker, 457 A.2d 357 (Del. Governor's item veto of an appropriation item, which was the only appropriation in 1983).

Pickle v. McCall, 86 Tex. 212 (1893).

the bill, was invalid because the constitution limits item-veto authority to bills "making appropriations of money, embracing distinct items." Moreover, he attempted to reduce the item, which the certification from the lower court assumed the governor could not do. The decision by the appellate court did not consider that issue.

After vetoing a few items in an appropriation bill before the legislature adjourned, the governor objected to another item after adjournment. The court held that this action misled the legislature and unconstitutionally interfered with its right to consider an override. The late item veto was invalid.

Pomeroy v. Riley, 12 Cal.2d 166 (1938)...... Governor's veto of an earmarked amount with an appropriation item does not reduce

Porter v. Hughes, 4 Ariz. 1 (1893).

the total appropriated for the item.

Governor tried to exercise item veto power when he had only general veto power at that time. His disapproval of the item was taken as approval of the whole bill. Railroad Commission v. Riley, 12 Cal.2d 48 Governor's veto of an earmarked amount with an appropriation item does not reduce (1938). the total appropriated for the item. Reardon v. Riley, 10 Cal.2d 531 (1938)...... Governor could veto within the amount of $1,625,185 two items of $328,000 and $20,000 and then reduce the total amount to $1,397,185 (which was $120,000 higher than the original total minus the two items).

Regents of the State University v. Trapp, Governor must veto the entire appropriation item, not the apportionment or 28 Okla. 83 (1911). earmarking within the item.

Rush v. Ray, 332 N.W.2d 325 (lowa The court held that the trial court erred in dismissing an item-veto case on grounds 1983). of mootness. The trial court should have considered the case under the "public interest" exception to the mootness doctrine.

Schwab v. Ariyoshi, 564 P.2d 135 (Haw. The court rejected the claim of appellants that the section of the constitution 1977). conferring item-veto authority required the legislature to enact three separate bills to provide salary increases for the executive, legislative, and judicial branches. Shelton Hotel Co., Inc. v. Bates, 4 Wash.2d The validity of the governor's item veto was not at issue. His veto of one section, 498 (1940). however, did not cause the remainder of a wage provision to fall. Smith v. Goldman, 159 N.J. Super. 297 Court upheld governor's item veto and denied that a previous statute was self(1978). executory and constituted an appropriation. Spokane Grain & Fuel Co. v. Lyttaker, 59 Because a repeal section was connected to four affirmative sections item-vetoed by Wash. 76 (1910). the governor, the repeal clause falls as well. State v. Brasel, 623 P.2d 696 (Wash. Governor chose to veto an entire sentence rather than strike the word "not," which 1981). he said was an obvious drafting error by the legislature. He doubted his constitutional authority to correct the sentence by deleting a word.

State v. Holder, 76 Miss. 158 (1898).......... Governor may not use item-veto authority to strike conditions upon which the appropriation shall become available.

[blocks in formation]

State v. Martin, 385 P.2d 846 (Wash. The state constitution did not limit the governor's item-veto power, which could be 1963). used (as it was in this instance) to veto items within the legislative branch without violating the doctrine of separated powers.

State ex rel. Akron Education Ass'n v.
Essex, 351 N.E.2d 118 (Ohio 1976).
State ex rel. Brotherton v. Blankenship,
207 S.E.2d 421 (W. Va. 1973).

State ex rel. Brotherton v. Blankenship, 214 S.E.2d 467 (W. Va. 1975).

Governor's exercise of item-veto authority was null and void because the measure
was not an appropriation bill, even though it augmented school funds.
Partly because the constitution prohibits either the governor or the legislature from
reducing the judiciary's budget estimates, the governor may not exercise his
item-veto power over amounts for the judicial branch. Also, governor could not
reduce the accounts for the State Treasurer and the Secretary of State to zero,
except for their salaries, for this would effectively abolish two offices established
by the constitution. Furthermore, the governor's action in reducing to zero the
funds for state schools was void because it violated the constitution's
requirement for a system of free schools.
Governor was authorized to veto unauthorized amendments (containing nonmonetary
provisions) that the legislature had added to its own budget. The court said that
the constitutional phrase "items or parts of items" refers to more than fiscal
units; the governor's power extends to conditions and restrictions. But the
governor may not delete all the conditions to the point where he has an
appropriaton without the legislature's purpose.

State ex rel. Brown v. Ferguson, 32 Ohio Governor's item-veto authority extends to a section that did not contain a specific
St.2d 245 (1972).
appropriation but rather was a reimbursement procedure to compensate legal
counsel.

State ex rel. Browning v. Blankenship, 175 To comply with the state constitution, the governor must file with the Secretary of S.E.2d 172 (W. Va. 1970).

State within five days not merely his "disapproval" of certain appropriation items but also his "objections" (his statement of reasons for the disapproval). His failure in this instance rendered his item vetoes void and of no effect.

State ex rel. Cason v. Bond, 495 S.W.2d In five sections of an appropriation bill, the governor struck certain language 385 (Mo. 1973).

regarding the purpose of appropriation items. He did not veto or reduce the appropriated sums. The court held that he exceeded his constitutional authority. State ex rel. Crable v. Carter 187 Okla. Governor cannot reduce an appropriation item, even though the legislature had 421 (1940). delegated that authority to him.

State ex rel. Finnegan v. Dammann, 220 Governor could not exercise his item-veto authority on a revenue bill containing a Wyo. 143 (1936). revolving fund, even if this legislative practice impairs his item-veto power, which is limited by the constitution to "appropriation bills."

State ex rel. Hudson v. Carter, 167 Okla. Language in an appropriation bill requiring the governor's approval for expenditures 32 (1933). by the Corporation Commission was held void for a number of reasons, partly because the procedure would allow the governor to indirectly reduce an appropriation item-a power denied him by the constitution.

State ex rel. Jamison v. Forsyth, 21 Wyo. Governor attempted to reduce an item in an appropriation bill presented to him on 359 (1913). the last day of the legislative session. Court resolved the dispute without deciding the governor's power to reduce an appropriation item.

State ex rel. Kleczka v. Conta, 264 N.W. The court rejected petitioners' claims that (1) the governor's item veto was invalid 2d 539 (Wis. 1978).

because the measure was not an appropriation bill, (2) the language vetoed was not severable, (3) he may not strike provisos or conditions on an appropriation, and (4) he did not return the bill or vetoed language to the legislature in accordance with the constitution.

State ex rel. Link v. Olson, 286 N.W.2d Governor may not item veto a section that leaves the remainder of the bill 262 (N.D. 1979). incomplete and unworkable.

State ex rel. Long v. Jones, 82 S.E. 882 Governor's item vetoes upheld.

(1914).

State ex rel. Martin v. Zimmerman, 233 After the governor exercises his item-veto power, the remaining bill must be Wis. 442 (1940). workable.

State ex rel. Meyer v. State Bd. of Equal. & Assess., 176 N.W.2d 920 (Neb. 1970).

Nebraska constitution prohibits legislature from increasing the governor's budget recommendation unless by two-thirds vote, in which case the governor may not exercise his item-veto power. The court held that the two-thirds vote applied to final passage. The items increased by the legislature fell short of this margin and therefore were not validly enacted. [See Elmen v. State Board of Equal. & Assess. (1930)]

State ex rel. Nunez v. Baynard, 203 La. Governor had vetoed two items of $1,500. The two items could not be consolidated 711 (1943). by claimants to satisfy the $2,000 required to meet the dollar threshold for the court's appellate jurisdiction.

State ex rel. Public Utilities Commission v. Controlling Board, 130 Ohio St. 127 (1935).

Controlling Board could not use transfer authority to replenish items vetoed by the governor.

ANNOTATED CITATIONS OF ITEM VETO 1 CASES-Continued

State ex rel. Ruoff v. Rosellini, 55 Wash.2d Governor's item veto of a salary increase for the governor was upheld but in 554 (1960). striking the higher figure the previous salary remained in effect. State ex rel. Sandaker v. Olson, 65 N.D. Court denied petitioner's claim that the constitutional requirement that bills be 561 (1935).

presented to the governor at least three days before the legislature adjourns does not apply to appropriation bills. Such an interpretation would too severely restrict the governor's opportunity to item veto.

State ex rel. Sego v. Kirkpatrick, 86 N.M. The governor's striking of language in seven instances was upheld on two occasions 359 (1974). and denied in five. The latter represented valid legislative conditions and limitations.

State ex rel. Stepen v. Carlin, 229 Kan. The court struck down the governor's use of a line-item veto because the section 665, 630 P.2d 709 (1981).

deleted was not an item of appropriation. But since the section was substantive legislation and did not, under the state constitution, belong in an appropriation bill, the court held that the section was unconstitutional and of no force or effect.

State ex rel. Stephen v. Carlin, 230 Kan. Under Section 16 of Article II of the state constitution, the legislature may not add 252, 631 P.2d 688 (1981). to appropriation bills subjects wholly foreign and unrelated to the appropriation of money.

State ex rel. Stiner v. Yelle, 174 Wash. The governor's veto of parts of an act leaves the balance to be considered the only 402 (1933). bill passed.

State ex rel. Sundby v. Adamany, 71 Governor vetoed several parts of an appropriation bill although the parts did not deal Wis.2d 118 (1976).

State ex rel. Turner v. Iowa State Highway
Com'n, 186 N.W.2d 141 (lowa 1971).

with appropriations. Held valid by the court because the constitution allows the governor to approve appropriation bills "in whole or in part." He may veto parts, not merely items. The parts did not involve a condition or contingency on the amount appropriated.

Governor's veto of a section prohibiting the movement of permanent state offices was upheld on the theory that the section was not a condition limiting the expenditure of appropriated funds.

State ex rel. Wisconsin Telephone Co. v. Governor could item veto language because it was not inseparably connected to an Henry, 218 Wis. 302 (1935). appropriation item. Balance of bill was workable.

State ex rel. Wiseman v. Okl. Bd. of The governor vetoed a section, involving general legislation, in a bill containing Corrections, 614 P.2d 551 (Okla. 1978).

several appropriations. The court held that his failure to approve that section made it a nullity, under Article VI, Section 11, of the constitution, but that his failure to disapprove the appropriations, under Article VI, Section 12, allowed them to become law.

Stong v. People, ex rel., 74 Colo. 283 Governor is without authority to veto a part of an appropriation item. (1923).

Tacoma v. State Tax Commission, 177 Court upheld governor's veto of a section because it was a separable item and his Wash. 604 (1934). action purely negative.

Thomas v. Rosen, 569 P.2d 793 (Alas. Governor's exercise of item veto to disapprove a general obligation bond authoriza1977). tion was unconstitutional, since a bond authorization is not an "appropriation." Washington Ass'n of Apt. Ass'ns v. Evans, The court held that the governor's fourteen attempted vetoes of items and sections 88 Wash.2d 563 (1977).

Washington Federation of State Emp. v.
State, 682 P.2d 869 (Wash. 1984).

in a bill were invalid because the language disapproved reached a result unintended by the legislature. The item vetoes were therefore "affirmative" and "creative" in effect.

The court upheld the governor's veto of a section and all references in the bill to the section. It also announced that it was abandoning the "affirmative-negative" test for scrutinizing item vetoes. The test was unworkable, subjective, and an intrusion by the judiciary into the legislative branch. The check for item vetoes in the future would be legislative overrides.

Welden v. Ray, 229 N.W.2d 706 (lowa Governor cannot item veto qualifications on appropriation without also vetoing the 1975). appropriation. In this case the qualifications were not separate, severable provisions.

Wheeler v. Gallet, 249 P. 1067 (Idaho Governor has no authority to reduce an item of appropriation. Must approve or 1926).

Wood v. Riley, 192 Cal. 293 (1923) ....

reject the item in toto.

Governor had authority to veto a proviso in an appropriation bill that empowered the state controller at the request of the state director of education to transfer appropriations from one purpose to another. Such language would allow the legislature to indirectly defeat the governor's item-veto authority.

Wood v. State Administrative Board, 255 Governor had no power to reduce an appropriation item. Must disapprove items in Mich. 200 (1931).

toto.

Woodall v. Darst, 77 S.E. 264 (W. Va. Governor may not exercise item-veto power after the legislature adjourns and 1913). without communicating his reasons to the legislature before its adjournment.

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