Gilmore v. Landsidle

Present: Carrico, C.J., Compton, Stephenson, Hassell, Keenan,
and Koontz, JJ., and Whiting, Senior Justice

JAMES S. GILMORE, III,
ATTORNEY GENERAL OF VIRGINIA

v. Record No. 961014 OPINION BY JUSTICE BARBARA MILANO KEENAN
November 1, 1996
WILLIAM E. LANDSIDLE,
COMPTROLLER OF VIRGINIA, ET AL.

UPON A PETITION FOR A WRIT OF MANDAMUS

This is an original petition for a writ of mandamus brought

by the Attorney General of Virginia, James S. Gilmore, III (the

Attorney General), against the Comptroller of Virginia, William

E. Landsidle (the Comptroller). Bruce F. Jamerson, the Clerk of

the House of Delegates and Keeper of the Rolls of the

Commonwealth (the Clerk), was permitted to intervene as a party

respondent.
The issue in this case concerns the constitutionality of

House Bill 29, an appropriation bill enacted by the General

Assembly in 1996. In a May 15, 1996 letter to the Attorney

General, the Comptroller expressed doubt concerning the validity

of House Bill 29. The Comptroller alleged that the Clerk failed

to enroll and present to the Governor the entire bill passed by

the General Assembly. The Comptroller also contended that

certain spending instructions in House Bill 29 were inconsistent

with Chapter 853 of the Acts of the Assembly of 1995, and that to

the extent those provisions in the 1996 bill were inconsistent

with Chapter 853, he would not make payments until this Court

adjudicated the validity of the bill. Pursuant to Code § 8.01-
653, 1 the Attorney General filed a petition for a writ of

mandamus in this Court directing the Comptroller to comply with

the provisions of Chapter 966 of the Acts of Assembly of 1994,

the original appropriation act for the 1994-96 biennium, as

amended by Chapter 853. The petition requested this Court to

declare House Bill 29 unconstitutional.

Since the Constitution of Virginia was amended in 1971,

three different types of budget bills have been enacted. The

original budget bill for a biennium is introduced in even-

numbered years. An "interim budget bill" is introduced in the

odd-numbered year of the biennium, and contains a Governor's

recommendations for amendments to the original budget bill.

Finally, a "caboose bill," including a Governor's recommendations

for changes to the appropriation act, as amended, may be

introduced in the next even-numbered year for the remaining

months of the biennium.
On January 10, 1996, House Bill 29, a "caboose bill," was

1
Code § 8.01-653 provides, in relevant part, that when the

Comptroller notifies the Attorney General that he has doubt with

respect to the validity of an act of the General Assembly

appropriating money out of the Commonwealth's treasury, the

Attorney General may file a petition for a writ of mandamus in

this Court directing the Comptroller to pay such money as may be

proper.

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introduced in the General Assembly containing the 1996 amendments

to Chapter 966 of the Acts of Assembly of 1994, as amended by

Chapter 853 of the Acts of Assembly of 1995 (collectively, the

existing appropriation act). As introduced, House Bill 29 set

forth the existing appropriation act, in addition to certain

proposed amendments. House Bill 29 was titled
[a]n Act to amend and reenact Chapter 966 of the Acts
of Assembly of 1994, as amended by Chapter 853 of the
Acts of Assembly of 1995, and which appropriated the
public revenues for the two years ending, respectively,
on the thirtieth day of June, 1995, and the thirtieth
day of June, 1996.

The bill, as introduced, contained an enactment clause providing

for the amendment and reenactment of 15 so-called "sections" of

the existing appropriation act, and for continuation of the

appropriation for the biennium, as amended.

After undergoing further amendment by the House of

Delegates and the Senate, House Bill 29 proceeded to the Joint

Conference Committee, which recommended that the bill be adopted

as introduced, with the committee's proposed amendments. The

Joint Conference Committee report was adopted by both houses, and

the Clerk enrolled House Bill 29 for presentation to the

Governor.

Enrolled House Bill 29 contained an enactment clause

providing for the amendment and reenactment of specified portions

of the existing appropriation act which were designated as

"items" and "sections." The clause also provided for the

addition of certain so-called "items" and continued the

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appropriation for the biennium, as amended.

The enrolled bill consisted of 142 pages and contained those

provisions listed in the enactment clause which had been amended

or added during the 1996 session. The enrolled bill excluded

those "items" in the existing appropriation act which were not

amended by House Bill 29. By contrast, House Bill 29, as

introduced, contained 456 pages, setting forth the amended

provisions listed in the enactment clause in the context of the

existing appropriation act.
The Governor informed the General Assembly that, because

House Bill 29 had been enrolled to include only the items added

or amended during the 1996 session, he concluded that the bill

was not properly enrolled under Article IV, Section 12 and

Article V, Section 6 of the Constitution of Virginia. The

Governor alleged that his acceptance of the enrolled bill would

destroy his ability to protect the public purse through his

exercise of the item veto.

On May 16, 1996, the Governor informed the General Assembly

that he considered House Bill 29 a "legal nullity" because it was

not properly enrolled and presented. He also advised the

legislature that the Attorney General would commence an action in

this Court, with the Governor's concurrence, to address this

issue.

House Bill 29 became law pursuant to Article V, Section 6 of

the Constitution, which provides, in part, that if a Governor

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does not act on a bill within thirty days after the adjournment

of the reconvened General Assembly session, the bill becomes law

without his signature. The Attorney General filed the present

petition for a writ of mandamus on May 16, 1996, and presented

the following questions for our review.
A. When an act appropriating the public revenue
of the Commonwealth is amended, may the bill
effecting those amendments be enrolled and
presented to the Governor setting out less
than the full budget act, together with any
amendments?
B. If less than the full budget act may be
enrolled and presented, what portions of the
budget must be enrolled so as to (i) comply
with Article IV, Sections 11 and 12 of the
Virginia Constitution, and (ii) not
impermissibly encumber the Governor's
authority, granted in Article V, Section 6(d)
of the Virginia Constitution, to veto an item
of the bill?

C. Where a provision of an appropriation bill
does not effectively qualify the amount or
purpose of an appropriation, and is
separable, is such provision susceptible to
the gubernatorial veto granted in Article V,
Section 6(d)?

In determining whether the writ of mandamus should be

granted, we first consider the issue whether enrolled House Bill

29 is the same bill passed by the General Assembly. The Attorney

General contends that House Bill 29 reenacted all unamended

portions of the existing appropriation act, as well as the

amendments. The Attorney General advances three related

arguments based on that assertion: (1) that enrolled House Bill

29 violates the requirement of Article IV, Section 11 that the

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bill enrolled and signed be the same bill that "has been passed

by both houses," (2) that enrolled House Bill 29 violates Article

V, Section 6, which requires the General Assembly to present to a

Governor every bill "which passes the Senate and House of

Delegates," and (3) that the Clerk of the House of Delegates

failed to enroll the entire bill pursuant to Code § 30-14, which

requires enrollment of "all acts of the General Assembly."

In response, the Clerk asserts that only the so-called

"sections" and "items" listed in the enactment clause of House

Bill 29 were reenacted by that bill. Thus, the Clerk contends

that the unamended items of the existing appropriation act were

not reenacted in House Bill 29, and that the Attorney General has

failed to establish that enrolled House Bill 29 is a different

bill than that passed by the General Assembly. We agree with the

Clerk.
The title of an act is not part of the act itself.

Commonwealth v. Gaines, 4 Va. (2 Va. Cas.) 172, 180 (1819). The

purpose of the title is to state the general subject covered by

the act, and the content of the title may be broader than the

legislation specifically enacted. See Town of Narrows v. Giles

County, 128 Va. 572, 583, 105 S.E. 82, 85 (1920).

In contrast, the enactment clause is part of the body of the

act which states the precise action taken by the legislature,

thereby establishing the jurisdiction and the authenticity of the

act. See 1A Norman J. Singer, Sutherland on Statutory

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Construction § 19.01 (5th ed. 1993). The enactment clause also

secures uniformity of identification, thus preventing

inadvertence, possible mistake, and fraud. See Joiner v. State,

155 S.E.2d 8, 10 (Ga. 1967); State v. Patterson, 4 S.E. 350, 352

(N.C. 1887); State v. Burrow, 104 S.W. 526, 529 (Tenn. 1907).

The Constitution of Virginia does not contain a provision

requiring that legislative acts contain an enactment clause.

Webster v. Commonwealth, 141 Va. 589, 597, 127 S.E. 377, 380

(1925). However, when an act does contain such a clause, this

Court may rely on the clause to determine the precise content of

legislation. See District Road Board v. Spilman, 117 Va. 201,

205, 84 S.E. 103, 104 (1915). In Spilman, this Court relied on

an act's enactment clause in determining the particular action

taken by the legislature, and whether publication of the single

amended section of a multi-section act met the constitutional

requirement of publication "at length." Id. at 205, 84 S.E. at

104.

We place equal reliance on the enactment clause of enrolled

House Bill 29. The clause did not state that any unamended items

were "reenacted." Moreover, the clause used the word "reenacted"
2
with reference only to designated "items" and "sections." Thus,

2
We also note that the enactment clause of House Bill 29, as

introduced, did not state that any unamended items were

"reenacted." Like the enactment clause in enrolled House Bill

29, the enactment clause in the bill, as introduced, used the

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we conclude that enrolled House Bill 29 did not provide for the

reenactment of unamended items, and that the record before us

does not show that the Clerk enrolled a different bill than

actually was passed. 3

In effect, the Attorney General asks us to assume that the

Clerk enrolled, and the presiding officers of both houses signed,

a different bill from the one enacted by the Senate and House of

Delegates, contrary to the duties imposed by Article IV, Section

11 and Article V, Section 6 of the Constitution of Virginia, as

well as Code § 30-14. However, we are not permitted to make such

an assumption. In the absence of clear evidence to the contrary,

this Court must presume that a public officer has properly

discharged his official duties. Murdock v. Nelms, 212 Va. 639,
(..continued)

word "reenacted" only with reference to designated portions

identified as "sections." Thus, House Bill 29, as introduced,

did not purport to reenact any unamended items.

3
The fact that the legislative staff of the General Assembly

provided to the Department of Budget and Planning a copy of the

entire appropriation act, with all unamended and amended

provisions, does not establish that the General Assembly

reenacted the unamended items. We will not speculate whether the

legislative staff submitted the entire act to that Department due

to the nature of the review the Department performs, or whether

the staff took this action for any other particular reason.

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642, 186 S.E.2d 46, 49 (1972); Robertson v. Commonwealth, 12 Va.

App. 854, 856-57, 406 S.E.2d 417, 418 (1991); see Smith v.

Commonwealth, 219 Va. 554, 559, 248 S.E.2d 805, 808 (1978).

Applying this principle to the record before us, we conclude that

enrolled House Bill 29 is the same bill passed by the General

Assembly.

We now consider Question A:
When an act appropriating the public revenue of the
Commonwealth is amended, may the bill effecting those
amendments be enrolled and presented to the Governor
setting out less than the full budget act, together
with any amendments?

Since Code § 8.01-653 requires that all questions presented

under that section relate to the constitutionality or

interpretation of a particular appropriation act, we answer

Question A with reference to the provisions of House Bill 29.

Further, we examine the question in the context of our conclusion

above that enrolled House Bill 29 is the same bill as that passed

by the General Assembly. Thus, we consider the issue whether the

Clerk was required to enroll the entire biennial appropriation
act in House Bill 29 when only specified portions of the existing

appropriation act were amended in the current legislative

session.

Article IV, Section 12 of the Constitution of Virginia

provides:
No law shall embrace more than one object, which shall
be expressed in its title. Nor shall any law be
revived or amended with reference to its title, but the
act revived or the section amended shall be reenacted
and published at length.

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 The publication requirement of Article IV, Section 12 is a

provision that is common to many state constitutions. The

primary purpose of such a provision is to prevent the legislature

from accidentally or intentionally misleading the public

regarding the precise action taken in a given enactment. See

Sinclair Refining Co. v. Brumett, 267 P.2d 576, 578 (Okla. 1954);

State v. Lawson, 82 P. 750, 751 (Wash. 1905).

This requirement is a corollary provision to the "one

object" requirement of the same section. Other purposes

underlying both requirements include the prevention of careless

amendment of a bill and the provision of clear notice to those

affected by an enacted bill. See State Board of Health v.

Chipphenham Hosp., 219 Va. 65, 74, 245 S.E.2d 430, 435-36 (1978).

The issue whether House Bill 29 was enrolled and published in a

manner that satisfies the requirements of Article IV, Section 12

must be considered in the framework of these constitutional

purposes.

We first decide whether House Bill 29 is an "act revived" or

a "section amended" within the meaning of Article IV, Section 12.

Although the Attorney General does not argue that House Bill 29

is an "act revived" under that section, we nevertheless must

consider this question in determining whether the bill was

published in compliance with Article IV, Section 12.

The primary construction of the word "revive" is
'to give life to again.' If it is a creative act to
give life to dead matter once, it is no less a creative

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 act to give life again to the same matter when it
becomes dead. The syllable 're' in the word indicates
the use of old matter, and the syllable 'vive' means to
'give life to,' which is one of the primary meanings of
the word 'create.' The quality of the act inheres in
the giving of life, not in the material that is to be
vivified. Nor is the quality of the act changed by
repetition.

Ballentine's Law Dictionary 1115 (3rd ed. 1969); see also Black's

Law Dictionary 1321 (6th ed. 1990).

The plain, ordinary meaning of the word "revive" comports

with the above definition. That meaning is "'to return to

consciousness or life: recover life, vigor, or strength.'"
Webster's Third New International Dictionary 1944 (1993).

A "reviving act" is an act "which restores legal existence

and force to a statute that has been expressly or impliedly

repealed." 1A Singer, Sutherland on Statutory Construction

§ 22.26. The term "reviving act" also includes the restoration

of an act that has expired.

Applying the above definitions, we conclude that House Bill

29 is not an "act revived" within the meaning of Article IV,

Section 12. Chapter 966 of the Acts of Assembly of 1994 remained

in continuous effect through June 30, 1996, except as it was

amended by Chapter 853 of the Acts of Assembly of 1995 and by

House Bill 29. Thus, the appropriation act for the 1994-96

biennium was not repealed and did not expire until it was

supplanted by the 1996-98 biennial appropriation act.

Since House Bill 29 is not an "act revived" under Article

IV, Section 12, the meaning of the term "section amended"

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controls the issue before us. The word "section" is generally

defined as the smallest distinct subdivision of a legislative

act. See Black's Law Dictionary 1353.

In District Road Board v. Spilman, this Court held that

publication of only the amended section of a multi-section act

satisfied the publication requirement of the predecessor

provision of Article IV, Section 12. We stated that publication

of the single amended section met "both the letter and spirit of

the Constitution." Id. at 206, 84 S.E. at 104. The fact that

Spilman involved an amendment of a single section, rather than of

multiple sections, is not a distinction of constitutional

significance, because the notice function of Article IV, Section

12 is satisfied when the public is provided notice of every

change made to a law.

Most courts which have construed similar constitutional

provisions have held that if one or more sections of an act are

amended, and constitute less than the entire act, the

constitutional requirement is satisfied if the amended sections

are set forth alone, without setting out the entire act. See,

e.g., Crocher v. Abel, 180 N.E. 852, 854 (Ill. 1932); Allphin v.

Ohio River Co., 306 S.W.2d 94, 95 (Ky. 1957); Sinclair Refining

Co., 267 P.2d at 578; Lawson, 82 P. at 751. However, this Court

has not construed the term "section amended" in the context of an

appropriation act.

The Attorney General argues that the word "section" in

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Article IV, Section 12 refers to either (1) the entire provision

designated as a "section" by the General Assembly which contains

an amended item, or (2) the entire appropriation act, including

its unamended provisions. The Attorney General contends that one

of the above definitions is necessary to secure the purposes of

Article IV, Section 12 and the Governor's item veto power under

Article V, Section 6. We disagree.

We consider and define the word "section" in its fixed

constitutional sense, rather than by reference to the structural

organization of a given appropriation act. See Brault v.

Holleman, 217 Va. 441, 449, 230 S.E.2d 238, 243-44 (1976). We

find no merit in the Attorney General's argument that a "section

amended" refers to the General Assembly's designation of a

"section" in an appropriation act. That designation is not

determinative of this issue because the Constitution, rather than

the General Assembly, controls the question of what portions of a

budget act must be enrolled and presented to a Governor. See id.

Moreover, that designation does not constitute the smallest

distinct subdivision of an appropriation act.

We likewise reject the Attorney General's contention that a

"section amended" constitutes the entire appropriation act, as

amended by House Bill 29. Such an interpretation plainly exceeds

the express language of House Bill 29, in which only certain

specified portions were amended and reenacted or added to the

existing appropriation act.

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 The words "section" and "item" are not synonymous. In

Dodson v. Commonwealth, 176 Va. 281, 296, 11 S.E.2d 120, 127

(1940), we defined the word "item" in the context of an

appropriation act as an "indivisible sum of money dedicated to a

stated purpose." Under this definition, an item is the smallest

distinct unit of an appropriation act. However, in order to

fulfill the notice function of Article IV, Section 12, a "section

amended" must include not only "an indivisible sum of money

dedicated to a stated purpose" which has been amended, added, or

deleted in the current legislative session, but also the

conditions and restrictions pertaining to that indivisible sum.
In addition, appropriation acts may include provisions that

do not themselves constitute an appropriation of funds and are

unrelated to any item in the act. This type of provision which

is added or amended in the current legislative session also must

be included in the definition of "section amended" to ensure the

public policy purposes underlying Article IV, Section 12.

Therefore, in the appropriation context, we conclude that,

at a minimum, a "section amended" includes (1) an amended item

with all pertaining conditions and restrictions; (2) an added

item with all pertaining conditions and restrictions; (3) a

deleted item with all pertaining conditions and restrictions; and
4
(4) a provision that is unrelated to any item, which has been

4
The issue whether a Governor can veto any such unrelated

provision is not before us in Question A. Thus, while this type

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amended or added to the biennial appropriation act in the current

legislative session.

Under this definition of "section amended," House Bill 29

complies with both the letter and spirit of Article IV, Section

12. The General Assembly reenacted, enrolled, and presented to

the Governor the "sections amended" in their entirety.

Enrollment and publication of the complete biennial budget was

not necessary, because each amended or added item referred to

something which could be eliminated from the bill without

affecting the enactment's other purposes or provisions. See

Brault, 217 Va. at 447, 230 S.E.2d. at 242.

We find no merit in the Attorney General's argument that

enrollment of the entire biennial appropriation act was necessary

to preserve the Governor's item veto power under Article V,

Section 6 of the Constitution of Virginia. That section

provides, in part, that "[e]very bill which passes the Senate and

House of Delegates, before it becomes law, shall be presented to

the Governor."

Article V, Section 6 also details a Governor's powers with

respect to the legislation presented, including his power to veto

or recommend amendments to a bill. The section further states

(..continued)

of provision falls within the meaning of "section amended," as

defined above, we do not address whether this type of provision

is subject to a Governor's item veto power.

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that a Governor has the authority to veto "any particular item or

items of an appropriation bill."

Here, the Governor's constitutional right of item veto was

preserved, because the Governor could have vetoed any item which

had been amended or added in the current legislative session.

Each amended or added item was capable of being assessed by the

Governor on its own merits, because its removal would not have

altered any other indivisible sum in the budget or have affected

the enactment's other purposes or provisions. See Brault, 217 Va.

at 447, 230 S.E. 2d at 242.

Under Article V, Section 6, once a Governor has signed a

bill, it becomes law. Thus, when the Governor signed Chapter 966

of the Acts of Assembly of 1994, and Chapter 853 of the Acts of

Assembly of 1995, the provisions contained in those acts became

law. Since House Bill 29 did not amend and reenact the vast

majority of those provisions, they were not subject to the

Governor's item veto power.

The Attorney General's position would allow a Governor to

veto provisions in an appropriation law which have been in effect

for one year or more, even though those provisions have not been

amended in the current legislative session. Thus, under that

position, a Governor could veto an appropriation that has already

been spent, or an appropriation that has been committed in a

contract binding the Commonwealth. Such results could adversely

affect the Commonwealth's financial standing, and we reject the

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arguments on which they are based.

We also find no merit in the Attorney General's argument

that the Clerk was required to enroll the entire biennial

appropriation act in House Bill 29 to guarantee that no item was

partially enrolled. This alleged problem of "partial enrollment"

of items in House Bill 29 is illusory under a proper construction

of "section amended," because all conditions and restrictions

pertaining to each amended or added item were enrolled along with

the item in question. 5 Further, in determining whether to veto a

particular amended or added item, the Governor could have

compared that item to the unamended provisions of the existing

appropriation law.

5
In his argument on Question A, the Attorney General cites

three examples of a type of "general" provision which he alleges

are conditions or restrictions. He asserts that the General

Assembly improperly insulated these provisions from the

Governor's item veto by not enrolling all items allegedly related

to those provisions. Yet, in Question C, the Attorney General

has argued that this very type of "general" provision is
separable from any item, and thus is subject to the Governor's

item veto. Since the Attorney General has advanced inconsistent

arguments regarding this type of provision, and since we do not

reach the merits of Question C, we do not further consider these

arguments.

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 Enrollment of the entire biennial appropriation act also was

not necessary to preserve the Governor's responsibility under

Article X, Section 7 to ensure that expenses for the biennium do

not exceed revenues. If the Governor believed that any item

which had been added or amended created a potential revenue

deficit for the biennium, he could have vetoed that item.

Alternatively, the Governor could have returned an objectionable

item to the house in which it originated with recommendations for

its amendment. See Article V, Section 6.

Therefore, in response to Question A, we answer that Article

IV, Section 12 and Article V, Section 6 of the Constitution of

Virginia did not require enrollment of items of the existing

appropriation act which had not been amended in the current

legislative session.

We next consider Question B:
If less than the full budget act may be enrolled and
presented, what portions of the budget must be enrolled
so as to (i) comply with Article IV, Sections 11 and 12
of the Virginia Constitution, and (ii) not
impermissibly encumber the Governor's authority,
granted in Article V, Section 6(d) of the Virginia
Constitution, to veto an item of the bill?

The principles set forth in our discussion of Question A are

directly applicable here. As stated above, Code § 8.01-653

requires that the question presented relate to the

constitutionality or interpretation of a particular appropriation

act. Thus, we answer Question B with reference to House Bill 29.

Under the above definition of "section amended," the Clerk was

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required to enroll every added or amended item, 6 with all

pertaining conditions and restrictions, to comply with Article

IV, Section 12 of the Constitution of Virginia, and to preserve

the Governor's item veto power under Article V, Section 6 of the

Constitution of Virginia. Further, since House Bill 29 does not

contain any provision that is unrelated to any item, we expressly

do not state whether such a provision would be subject to the

Governor's item veto power.
We turn now to Question C:
Where a provision of an appropriation bill does not
effectively qualify the amount or purpose of an
appropriation, and is separable, is such provision
susceptible to the gubernatorial veto granted in
Article V, Section 6(d)?

We do not reach the merits of this question, however,

because it does not come within the defined scope of questions

permitted under Code § 8.01-653. That section provides, in

relevant part:
In any such [mandamus] proceeding the court shall
consider and determine all questions raised by the
Attorney General's petition pertaining to the
constitutionality or interpretation of any such act,
even though some of such questions may not be necessary
to the decision of the question of the duty of such
Comptroller and Treasurer of the Commonwealth to make
payment of the moneys appropriated or directed to be
paid.

Id. (Emphasis added.)

Question C does not pertain to "the constitutionality or

6
There were no deleted items in House Bill 29.

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interpretation of any such act" but merely states a hypothetical

question. Further, in his petition, the Attorney General has not

asked us to consider the constitutionality or interpretation of

any particular provision of a given act, but merely has asked us

to provide general guidance regarding future enactments. We are

precluded from considering such a hypothetical question.

Conclusion

For these reasons, we conclude that enrolled House Bill 29

is the same bill enacted by the General Assembly, that the bill

was published "at length" within the meaning of Article IV,

Section 12 of the Constitution of Virginia, and that the bill did

not impair the Governor's item veto power or his ability to

ensure that expenses for the biennium did not exceed revenues.

Accordingly, the writ of mandamus requested by the petitioners

will be denied.
Writ denied.
CHIEF JUSTICE CARRICO, JUSTICE COMPTON, and JUSTICE STEPHENSON
concur in the result.

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