STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL
April 6, 1972
Honorable Otto Stern
Joint Chairman
Appropriation's Committee
Freeman, South Dakota 57029
OFFICIAL OPINION NO. 72-12
Governor may not partially veto any item except an appropriation
Dear Honorable Stern:
You have asked for an official opinion on the following factual situation:
On February 19, 1972, the Honorable Richard F. Kneip, Governor of this state, approved Senate Bill 278 (General Appropriations Act of 1972), but by a communication dated February 18, 1972, directed to the Secretary of State, the Governor stated that he was disapproving and vetoing certain items contained in said bill. The February 18th communication stated, among other things, that the last sentence in section 11 of Senate Bill 278 had been vetoed as an item of the general appropriations act, and the Governor based his action in so vetoing such sentence upon the alleged authority granted by Section 10, Article IV of the Constitution of the State of South Dakota.
The said Section 11 of the Appropriations Act reads as follows:
All amounts herein appropriated shall be used for the specific purpose herein mentioned and no other. The state auditor shall issue warrants on itemized and approved vouchers filed in his office, but no warrants shall be issued to or for any person, department, or institution, or any fund for any department in excess of the appropriation specifically made herein, except as provided by the provisions of this Act and otherwise provided by law. ((The expenditure limits established in this Act for personal services and supplies may not be changed except upon recommendation of the Governor and majority vote of the entire membership of the special committee established in section 13 of this Act.))
The sentence attempted to be vetoed by the Governor is indicated above by double parentheses. The special committee referred to in Section 13 of the Act is composed of members of the Senate and House Joint Standing Committee on appropriations.
In connection with the above factual situation, you have asked the following question:
Does the Governor of this state have the authority under the Constitution of this state to veto a sentence contained within a section of a legislative bill making appropriation of money embracing distinct items, when the section does not make an appropriation of money?
The applicable constitutional provision is contained in Article IV, § 10 of the South Dakota Constitution:
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 of the bill approved shall be law, and the item or items disapproved shall be void, unless enacted in the following manner: If the Legislature be in session he shall transmit to the House in which the bill originated a copy of the item or items thereof disapproved, together with his objections thereto, and the items objected to shall be separately reconsidered, and each item shall then take the same course as is prescribed for the passage of bills over the executive veto. (Emphasis added)
It appears that this is a question of first impression in South Dakota. However, other states with similar constitutional provisions have decided similar questions, and the majority opinion is that a Governor may veto an appropriation, but the words "item" or "items" as used in the Constitution, do not refer to provisos on appropriations, as such items do not amount to a distinct item of appropriation, but are only a portion of an item. Consequently, he may not veto a portion of a bill requiring certain acts in connection with appropriation.
Perhaps the leading case in this area is Black & White Taxi Cab Co. v. Standard Oil Co. (1923) 25 Ariz. 381, 218 P 139. In this instance, the legislature enacted a property tax and a gasoline tax and directed that the revenues generated should be appropriated for specific purposes. The Governor, without attempting o veto the property tax, undertook to veto the gasoline tax and the appropriations of the revenues. The majority opinion of the court held that in so doing he exceeded the power conferred upon him by the state constitution in relation to partial vetoes where a bill contains "several items of appropriation.'." Regarding the appropriation of the property tax revenues, the court took the view that this was an attempt by the Governor to veto, not a separate item of an appropriation, but a condition of an item of appropriation. The court said that if the veto were to have been upheld, the taxpayer would still be required to pay the property tax which would then go in to the state's general fund. The veto would have destroyed the object and the purpose of the property tax. Quoting from Fairfield v. Foster (1923) 25 Ariz. 146,214 P 319, the court stated:
The executive cannot veto a condition or proviso of an appropriation while allowing the appropriation to stand. That would be affirmative legislation without even the concurrence of the legislature.
Along the same lines, a New York court in People v. Treamine (1929) 225 App. Div. 331, 235 N.Y. Supp. 555, stated that the power to veto a portion of a bill was to be strictly limited to the items of appropriation of money, and did not extend to clauses, sentences, or sections containing limitations or conditions under which the appropriation might be made available. The court said that "the Governor had the undoubted right to veto any item which included such conditional clauses, deemed by him unwise or illegal; but he had no right to strike out separate clauses of limitation which were integral parts of the bi11 and retained the appropriation to be disposed of in some manner other than the legislature had in mind when it was made." The decision was reversed on appeal, but upon other grounds, (1929) 252 N.Y. 26,168 NE 817.
Other cases include State ex relTeachers and Officers v. Holder (1898) 76 Miss. 158, 23 So. 643, which held an attempted veto of a part of an appropriation bill requiring trustees of a college to adopt certain bylaws, was held to be a nullity. In Miller v. Walley (1920) 122 Miss. 521, 84 So. 466, an attempted veto of a proviso in an appropriation for a hospital requiring the superintendent to devote his entire time to the duties of his office, was also held to be void. And in Callaghan v. Boyce (1950) 17 Ariz. 433, 153 P 773, an attempt to veto, in an appropriation bill, other appropriations for a certain office was declared to be ineffective, as the provision was clearly a matter incidental to the appropriation for that office and an inseparable part of the original item.
The reasoning for disallowing provisos relating to the expenditure of appropriations was most succulently stated in State ex rel Teachers and Officers v. Holder, supra. The court stated:
And after all, and despite the pragmatic utterances of political doctriners, the executive, in every republican form of government, has only a qualified and destructive legislative function, and never creative legislative power. If the Governor may select, dissent, and dissever, where is the limit of his right? Must it be a sentence, or a clause, or a word? Must it be a section, or any part of a section, that may meet with executive disappropriation? May the Governor transform a conditional or a contingent appropriation into an absolute one? In disregard and defiance of the legislative will? That would be the enactment of law by executive will, and in the fact of it. .. To allow a single bill, entire, inseparable, relating to one thing, containing several provisions, all complimentary of each other, and constituting one whole, to be picked to pieces, and some of the pieces approved, and others vetoed, is to divide the indivisible; to make one of several; to distort and pervert legislative action ...
I would also refer you to similar holdings in Dickson v. Saiz (1957 New Mexico) 308 P 2d 205; In re Opinion of the Judges (Mass, 1936) 2 N.E. 2d 789; Patterson v. Empsey (Conn. 1965) 207 Atl. 2d 739; Opinion of the Justices (Del. 1965) 210 Atl. 2d 852; and Commonwealth v. Dodson (Va. 1940) 11 S.E. 2d 120.
It is therefore my opinion that the particular item veto in question is not within the scope of the Governor's powers granted him by Article IV § 10 of the South Dakota Constitution; the veto is void and of no effect, and the legislation is valid as originally passed.
Respectfully submitted,
Gordon Mydland
Attorney General
