Commonwealth v. Barnett

Opinion by

Mb. Justice Mitchell,

The governor is an integral part of the law-making power of the state. Section 15 of article 4 of the constitution provides that “ every bill which shall have passed both houses shall be presented to the governor; if he approve he shall sign it, but if he shall not approve he shall return it with bis objections to the house in which it shall have originated,” etc., and no bill, therefore, can become a law without first being submitted to the governor for his approval or disapproval. His disapproval, commonly known as a veto, is essentially a legislative act. The fact that the governor is limited to negation or concurrence and cannot affirmatively initiate or amend legislation, does not take away the legislative character of his act, any more than the want of power in the senate of the United States to originate revenue bills changes its standing as a co-ordinate branch of congress.

In this view all the authorities concur. The veto power of the president “ is not executive in its nature, but essentially legislative. It makes him in effect a branch of congress though only to a limited and qualified extent: ” Black on Constitutional Law, sec. 67.

The president “ thus became a third branch of the legislature whose approval was ordinarily requisite to the success of any measure proposed by the other two: ” Hare, Lectures on Constitutional Law, p. 212.

“ It appears as a matter of historical development as well as of theory, that the veto is a legislative power: ” Edward Campbell Mason, The Yeto Power, sec. 100.

“ The power to veto legislation which is conferred upon the president, makes him in effect a third branch of the legislature. The power is legislative, not executive, and the questions presented to his mind are precisely the same as those the two houses of congress must determine in passing a bill: whether the proposed law is necessary or expedient, whether it is constitutional, whether it is so framed as to accomplish its intent, and so on, are questions transferred from the two houses to the president with the bill itself: ” Cooley, General Principles of Constitutional Law, ch. 8, p. 49. (2d ed. 1891).

Being thus settled to be legislative in character, the presumption is that within its limited sphere of negation the power applies to every branch and subject of the bill to which the legislative powers of the two houses apply. And the history of the power as at present existing in the constitution of this state confirms the presumption.

The veto power is a survival of the lawmaking authority vested in the king as a constituent if not a controlling third body of the parliament, in which he might and not unfrequently did sit in person. With the growth of free ideas and institutions and the aggressive spirit of the popular branch of the parliament in the affairs of government, it lost its vitality as a real power in England, though it still exists in theory. But in the colonies it not only existed but was an active power, absolute in character, and so constantly exercised that as Professor Mason has aptly called attention to, the declaration of independence set forth first among the grievances oí the colonies, “ He has refused his assent to laws most wholesome and necessary for the public good:” Mason’s Veto Power, sec. 7. The most important chapter in the legislative history of the province of Pennsylvania will be found in the long and obstinate contest between the general assembly and the proprietaries and the crown (acting through the privy council and the board of trade) over the refusal of assent to the acts of the assembly.

From the colonies the power passed with various limitations into nearly all the American constitutions, state and national. Originally intended mainly as a means of self-protection by the executive against the encroachments of the legislative branch, it has steadily grown in favor with the increasing multitude and complexity of modern laws, as a check upon hasty and inconsiderate as well as unconstitutional legislation. The executive is usually better informed on the exact condition of the public affairs than the individual members of the legislature, and he acts under the concentrated responsibility of a single officer. That vetoes are usually wise and convincing is shown by the small proportion which has been overridden by the second passage of the disapproved act. Of 483 acts disapproved by the presidents of the United States down to 1889, only twenty-nine were repassed over the veto : Mason’s Veto Power, sec. 116.

As inherited from the colonies and adopted in the early constitutions, the veto power was confined to approval or disapproval of the entire bill as presented, and this in experience was found to be inadequate to the accomplishment of its full purpose. The legislature in framing and passing a bill had full control over every subject and every provision that it contained, and the governor as a co-ordinate branch of the lawmaking power, was entitled to at least a negative of the same extent. But by joining a number of different subjects in one bill, the governor was put under compulsion to accept some enactments that he could not approve, or to defeat the whole, including others that he thought desirable or even necessary. Such bills, popularly called “ omnibus ” bills, became a crying evil, not only from the confusion and distraction of the legislative mind by the jumbling together of incongruous subjects, but still more by the facility they afforded to corrupt combinations of minorities with different interests to force the passage of bills with provisions which could never succeed if they stood on their separate merits. So common was this practice that it got a popular name, universally understood as log rolling. A still more objectionable practice grew up of putting what is known as a “ rider,” that is a new and unrelated enactment or provision on the appropriation bills, and thus coercing the executive to approve obnoxious legislation or bring the wheels of the government to a stop for want of funds.

These were some of the evils which the later changes in the constitution were intended to remedy. Omnibus bills were done away with by the amendment of 1864 that no bill shall contain more than one subject which shall be clearly expressed in the title. But this amendment excepted appropriation bills, and as to them the evil still remained. The convenience if not the necessity of permitting a general appropriation bill containing items so diverse as to be fairly within the description of different subjects was patent. The present constitution meets this difficulty first, by including all bills in the prohibition of containing more than one subject except “ general appropriation bills ” (article 3, section 3) ; secondly by the provision that “the general appropriation bill shall embrace nothing but appropriations for the ordinary expenses of the executive, legislative and judicial departments of the commonwealth, interest on the public debt, and for public schools; all other appropriations shall be made by separate bills each embracing but one subject” (article 3, section 15); and thirdly, by the grant to the governor of “ 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 the law, and the item or items of appropriation disapproved shall be void, unless repassed according to the rules and limitations prescribed for the passage of other bills over the' executive veto: ” Article 4, section 16.

The purpose of these provisions is clear beyond question. They are a distinct recognition of the legislative character of the governor’s part in the passage of the bills, and an equally distinct effort to increase the power and scope of his veto. By section 15 of the same article a bill can only be passed over a veto by a vote of two thirds of all the members elected to each house, instead of two thirds of a quorum voting as under the constitution of 1838. “ The power,” says Mr. Buckalew, “ has been tried and not found wanting; it has won popular confidence in a high degree, and is now justly regarded as an indispensable feature of American constitutions. In the Convention of 1873 no voice was raised in opposition to it, or for imposing any new and material limitations upon its exercise in future: ” Notes on the Constitution, p. 117. Section 16 of article 4 above quoted with which we are immediately concerned is a clear expression of intent to give the governor to the extent of refusing approval, the same control over the particulars of a general appropriation bill that each house of the legislature had.

The argument on both sides has included much discussion of the exact definition of the word “ item.” But we have no occasion to consider minutely the language of the dictionaries in this connection. The general idea conveyed by the word is well understood and with that in our minds the precise meaning in the constitution is shown by the context to be the particulars, the details, the distinct and severable parts of the appropriation. The language is “ the governor shall have power to disapprove of any item or items .... and the part or parts of the bill approved shall be the law, and the item or items of the appropriation disapproved shall be void,” etc. It is clear that “ item ” and “ part ” are here used interchangeably in the same sense. If any special or different meaning was attached to the word “ item ” the natural mode of expression would have been to use that word throughout the section, but for the sake of euphony and to avoid the repetition of the same words three times in the same sentence, the draughtsman used the word “parts” as an evident synonym. This is also apparent from the plain purpose of the section. In ordinary bills the single subject is a unit which admits of approval or disapproval as a whole, without serious inconvenience, even though some of the details may not be acceptable. But every appropriation, though it be for a single purpose, necessarily presents two considerations almost equally material, namely, the subject and the amount. The subject may be approved on its merits, and yet the amount disapproved as out of proportion to the requirements of the case, or as beyond the prudent use of the state’s income. The legislature had full control of the appropriation in both its aspects and the plain intent of this section was to give the governor the same control as to disapproval, over each subject and each amount. A contrary construction would destroy the usefulness of the constitutional provision. If the legislature by putting purpose, subject and amount inseparably together and calling them an item, can coerce the governor to approve the whole or none, then the old evil is revived which this section was intended to destroy. No better illustration is needed than is afforded by the ease in hand. Section 8 of the act of May 13, 1899, appropriated for the public schools $11,000,000 for the two years of 1899 and 1900, provided that “ out of the amount received by the city of Philadelphia there shall be paid the sum of three thousand dollars to the Teachers’ Institute of said city; the sum of three thousand dollars to the Philadelphia School of Design for Women for their corporate purposes, and the sum of ten thousand dollars to the Teachers’ Annuity and Aid Association of said city,” etc. In this portion of the section alone there are included four distinct and severable parts, each of which is an “ item ” within the purpose, intent and meaning of the constitutional provision under consideration, namely the public schools, the Teachers’ Institute, the School of Design for Women and the Teachers’ Annuity and Aid Association. The public schools being objects of appropriation by the express mandate of the constitution, the only question before the governor as to them was the amount, but the other three items presented the double consideration of the beneficiary and the amount. On each of these matters, quoting again the language of Judge Cooley, supra, “ the questions presented to the mind of the executive are precisely the same as those the two houses (of Congress) must determine in passing a bill; whether the proposed law is necessary or expedient, whether it is constitutional, whether it is so framed as to accomplish its intent, and so on, are questions transferred from the two houses to the president (executive) with the bill itself.” On each of these questions therefore the governor was entitled to exercise his legislative judgment separately, and to approve or disapprove accordingly. Suppose for illustration that instead of the beneficiaries being worthy public institutions the city of Philadelphia had been directed to pay part of its appropriation to a sectarian school in violation of the express prohibition in section 18 of article 3. It would have been the governor’s imperative duty to veto such appropriation, and the legislature could not coerce him by putting him to the alternative of approving it or disapproving the entire section with its constitutional grant to the public schools. Or suppose on the other hand the appropriation had been to one of the institutions named of $1,000,000 or more. The governor might in his legislative judgment have approved the beneficiary as a proper object of state aid, but have found the amount excessive. He was entitled to approve as to the object, and to disapprove as to a portion of the amount. That is what he has done in the present case, and his action was within his constitutional powers.

Both sides have sought to derive confirmation of their views from the express mandate of the constitution in section 1 of article 10, that the legislature “shall appropriate at least one million dollars each year” for the support of public schools. This, the appellants claim, prevents the governor from exercising his veto power at all against appropriations for the public schools. But this argument entirely ignores the constitutional requirement that “ every bill ” shall be submitted for the governor’s approval. The constitution makes no exception of school bills or any other, and such exception would permit easy and clear violation of the prohibition in section 4 of article 9, against the creation of a state debt exceeding $1,000,000 in the aggregate at any one time, to supply deficiencies in revenue. Suppose the legislature should appropriate a sum for school purposes exceeding by more than $1,000,000 the entire revenue of the state. It would be the governor’s duty to veto it to prevent the creation of a prohibited debt. And even if the appropriation for schools was only the constitutional $1,000,000, yet if that would increase an already existing debt from deficiency of revenue beyond the prohibited limit, there would at once be an inevitable conflict between two express provisions of the constitution, and it would become the governor’s duty to exercise his legislative judgment which was of the lesser importance and should give way. The clear result, therefore, is that appropriations for school purposes are not excepted in any case from the requirement of submission to the governor for Ms approval.

Moreover, the appellants have entirely overlooked or misconceived the effect of a partial Veto such as was given in the present case. If the disapproval of part and the approval of the rest were not valid acts, then there was no appropriation at all, and the money already received by the schools was illegally paid. For there was no executive approval of an appropriation of $11,000,000. There are but three ways in which a bill can become law in this state, passage by the legislature, and approval by the governor, passage by the legislature, disapproval by the governor, and passage again in the mode prescribed by the constitution, or passage by the legislature and failure of the governor to return it with his objections within the required time. The appropriation of $11,000,000 claimed in the present case, never became law in any of these three ways and there is no other.

The question in this case is presented for the first time in this state, and is very bare of authorities elsewhere. The diligence of counsel has found only two cases and neither of them is at all close. Porter v. Hughes, 82 Pac. Repr. 165, arose in Arizona where the governor has no power to veto single items of a bill, and the question therefore was the same as it would have been here under the old constitution. In Mississippi the governor has power to veto parts of appropriations. Under this power the governor approved the whole appropriation, but vetoed certain conditions appended to it. In State v. Holder, 76 Miss. 158, it was held by a divided court that such veto was not within his authority. Neither of these cases affords us any assistance.

But though the question has not been presented before for judicial determination, the practice in this state is not new. The respondent has set out in his answer a number of examples of vetoes since the present constitution went into force, by Governor Pattison in both his terms, Governor Beaver and Governor Hastings, of parts of appropriation bills. Appellant has argued at some length that none of these instances was exactly like the present, and as to the details that much may be conceded. But they all rest on the same principle, the right of the governor in the exercise of his independent legislative judgment to approve an appropriation in part, by reducing the amount fixed by the legislature. As to that principle the executive practice must be considered as settled. While the executive interpretation of his own powers is not binding on the judiciary, it has always been considered as persuasive and entitled to great respect. And where as in this instance the practice has been frequent and acquiesced in without objection for a number of years, it should be very clearly shown to be unconstitutional to justify the courts in declaring against it.

The parties to this case with a commendable desire to obtain a speedy decision have set forth all the necessary facts in the petition and answer, and agreed that all technical matters shall be waived. On account however of the importance of the public interest involved, we have allowed counsel for other school districts to intervene and present additional arguments against the decision of the court below. One of such intervening parties has challenged the jurisdiction of the common pleas of Centre county to entertain the case, and thereby that of this court to hear it on appeal. The right of a party admitted by an act of grace to be heard as amicus curise, thus to attempt to set aside the formal agreement of the legal parties is not conceded, but as the question of jurisdiction is always open, it is proper that it should receive consideration even when brought forward in this irregular way.

The objection made is that a court of common pleas has no power to issue a writ of mandamus to a state officer. Objections to jurisdiction are of two classes between which there is a clear and well settled distinction, first those relating to the authority of the court over the subject-matter, and secondly those relating to its authority over parties. Objections of the first class cannot be waived nor jurisdiction obtained by acquiescence. Thus if the writ of mandamus had issued from the quarter sessions or the orphans’ court, the proceeding would be void ab initio for defect of authority in the court to issue such process and determine such controversies. It is of this class that it is commonly said that consent cannot give jurisdiction. But in the second class the rule is different. The party exempt from jurisdiction may waive his personal privilege, and if he does so the jurisdiction of the court is complete. Thus if the defendant is not duly served with process, or is a nonresident beyond the reach of process, or if served while temporarily exempt as a juror or party or witness, or member of the legislature, the proceeding as to him will be void or voidable on showing the facts. But if he waives his exemption and appears voluntarily, the jurisdiction of the court over him is thereafter beyond question.

By the Act of May 22, 1722, secs. 11 and 13, 1 Smith’s Laws, 139, the Supreme Court was authorized to issue “ all remedial and other writs and process .... as fully and amply as the justices of the court of king’s bench, common pleas and exchequer at Westminster, or any of them, may or can do.” Under this statute the Supreme Court issued writs of mandamus as a common-law writ, and preserved the common-law practice in all proceedings thereon.

By the Act of June 14, 1836, P. L. 626, sec. 18, the courts of common pleas within their respective counties were invested with “ like power with the Supreme Court to issue writs of mandamus to all officers and magistrates elected or appointed in or for the respective county, or in or for any township, district or place within such county, and to all corporations being or having their chief place of business within such county.” The jurisdiction thus granted to the common pleas was a common-law jurisdiction to be exercised according to common-law practice. But state officers not being among the subjects specifically enumerated in the grant, it is argued that no such writ can be issued to them. So far as it is a compulsory process this must be admitted, but it does not follow that it may not issue or become effective by consent. A writ against a nonresident as a compulsory writ is inoperative, not because the court has no authority to issue it, but because the person against whom it is issued is exempt from its operation. And the objection to the writ against a state officer belongs to the same class. The writ of mandamus itself is one which the court has full power to issue, but a state officer is exempt from its operation. This is a personal or official exemption, the manifest purpose of which was to protect a state officer from being taken away or interfered with in his official duties at the seat of government, to answer the local courts throughout the state. He is exempt for the convenience of the public business. But if the convenience of getting a decision on a question of public importance outweighs the inconvenience of going to a local court for it, there is nothing in the statute or in the public policy on which it is founded, to prevent the officer from so doing, and of such convenience the officer himself must be the judge. We are of the opinion that the objection now made relates not to the authority of the court over the subject-matter, but only to the privilege, personal or official, of the defendant. It was, therefore, an objection that could be waived, and having been expressly waived in the court below, the case is properly here for final adjudication.

In Com. v. Wickersham, 90 Pa. 311, the state officer insisted on his exemption, and all that the case decided was that he could not be compelled to submit to the jurisdiction. There is nothing in any of the other cases that bears materially on the present question.

Judgment affirmed.