Johnson v. Walters

*701KAUGER, Justice,

concurring:

Three wrongs do not make a right: 1) House Bill 1743 (H.B. 1743), a general legislation bill, and House Bill 1271 (H.B. 1271), a multi-subject, general legislation/special appropriations bill, violate art. 5, § 57’s1 proscription against multi-sub-ject bills; 2) The Governor may not usurp the legislative authority of the State specifically reserved to the Legislature by art. 5, § 1;2 and 3) This Court cannot construe the Governor’s power3 in such a way as to give the Governor review authority which is not granted by the constitution, nor can it empower the Legislature to enact multi-subject bills which are expressly forbidden by art. 5, § 57. Assuming arguendo that the multi-subject challenge was not properly raised, or that it was unnecessary to address art. 5, § 57 in State ex rel. Wiseman v. Oklahoma Bd. of Corrections, 614 *702P.2d 551, 557 (Okla.1978), it is squarely presented today.4

The Wiseman approach is valid here solely to the extent that all distinct items of appropriations in H.B. 1271, not line-item vetoed in toto by the Governor, constitute duly enacted appropriations. This result is appropriate only because at the time the Legislature passed H.B. 1271 Wiseman was still the law, and we had not foreshadowed the development of the rule of law announced today.5 Were we to continue to apply Wiseman’s mechanical approach, the one-subject issue presented by the enactment of a multi-subject, general legislation/special appropriations bill like H.B. 1271 would continue to place the Chief Executive in an untenable position. The Governor would be forced to choose either to approve multi-subject legislation or to reject offensive sections and face the possibility of a legal challenge to the exercise of the veto power. A blind adherence to Wiseman would always be outcome determinative — appropriations contained within the hybrid bill would survive the glare of judicial scrutiny only because this Court chose to treat those provisions surviving severance as though they comprised a general appropriations bill. In essence, the Court would continue to exercise a power it today denies the Governor — severance of a bill enacted by the Legislature as one into two pieces of legislation, thereby perpetuating multi-subject hybrid bills. This activism would occur despite the fact that art. 5, § 56 defines a general appropriations bill. A multi-subject, general legislation/special appropriations bill like H.B. 1271 does not meet the definition.6

Because H.B. 1743 and H.B. 1271 violate art. 5, § 57’s proscription against multi-subject bills, the general legislative provisions contained within the bills are void in their entirety. The Governor may not pick and choose which sections of the bills to approve and which to reject — nor may the Legislature enact multi-subject bills and avoid constitutional challenges by asserting that the Governor has exceeded his/her veto authority. This Court may not confer upon the Governor powers reserved to the Legislature by art. 5, § 1. Pursuant to art. 5, § 57, the Legislature is required to present the Chief Executive with single-subject bills. Likewise, the Governor can exercise only those veto powers conferred by art. 6, §§ 11 and 12.

Despite argument to the contrary, the Legislature’s duty to enact single subject bills is not diminished by the last sentence of art. 5, § 57 which provides:

“That if any subject be embraced in any act contrary to the provisions of this section, such act shall be void only as to so much of the law as may not be expressed in the title thereof.”

Art. 5, § 57 was enacted not only to prevent multi-subject or log-rolling legislation, but also to enable the public and the Legislature to understand the scope and effect of pending legislation. Generally, the only notice of pending legislation is a publica*703tion of its title.7 The subject expressed in the title of an act limits its scope.8 However, every provision of the Constitution is presumed to have a useful purpose and must be given effect.9 A finding that the final phrase in art. 5, § 57 prohibits the challenge of multi-subject bills so long as all subjects are included in the title of an act would render the first portion of the section nugatory; it would permit log-rolling, and it would vitiate the gubernatorial veto power contained in art. 6, §§ 11 and 12. This we may not do.

Although the powers of the legislative, the executive, and the judicial departments may overlap, neither may exercise the powers specifically granted to the other.10 The Okla. Const, art. 5, § 1 vests the legislative power in the Senate and the House of Representatives, not in the Legislature and the Governor.11 The Governor acts in a legislative capacity when reviewing legislation. While exercising this function, the Governor’s powers are limited by the constitution. The Chief Executive may exercise only the power specifically granted. Any attempt to exceed authority results in the actions being rendered wholly ineffectual for any and every purpose.12

The power of the veto is constitutionally conferred upon the Governor in art. 6, §§ 11 and 12. The approval or veto of general legislation bills is governed by art. 6. § 11. Pursuant to § 11, the Governor has two options, he/she may: 1) approve a bill presented by the Legislature; or 2) return it with objections to the house in which it originated. Section 12 governs general appropriations bills and provides that the Governor may approve or disapprove the bill or any item or appropriation it contains. When presented with a general appropriations bill, the Chief Executive has a third option — the power to “line item” veto a portion of the bill.13

No article or section of the Okla. Const, gives the Governor the power to become a “Super Legislator” by dividing legislation presented by the law-making body into multiple bills in order to avoid the single-subject mandate of art. 5, § 57. This Court held in Peebly v. Childers, 95 Okla. 40, 217 P. 1049,1051 (1923) that if the Chief Executive exercises a power not specifically granted by the constitution while reviewing legislation presented by the Legislature, such actions are wholly ineffectual for any and every purpose. Except to the extent that Wiseman controls the appropriations, the Governor’s attempt to divide H.B. 1743 and H.B. 1271 was unconstitutional. Failure to recognize these constitutional restrictions would require us to condone actions not authorized by our governing document.

The situation presented here is distinguishable from that the Court was faced with in State ex rel. Hudson v. Carter, 167 Okla. 32, 27 P.2d 617, 626 (1933). In Carter, the Court was asked ,to review a general appropriations bill which included a provision which allowed the Governor to alter the amount of an appropriation for the Corporation Commission. In Carter, deletion by the Court of one offensive provision left what was intended in the first instance by the Legislature — a general appropriations bill. Striking all general legislative provisions of H.B. 1271 may leave what appears to be a general appropriations bill. The difference between the situation in Carter and that presented here is that such action would result in the nature of the bill being altered. What started as a multi-subject, general legislation/specif appro*704priations bill would be converted to a general appropriations bill. Such a metamorphosis is not supported by this Court’s ruling in Carter or by the constitution.

Our pronouncement in State ex rel. Crable v. Carter, 187 Okla. 421, 103 P.2d 518, 521 (1940) is helpful in two respects: 1) it adds support to the conclusion that the Governor may exercise only those powers specifically granted in the Constitution when reviewing legislation; and 2) it provides support for the proposition that we are without authority to confer legislative review authority upon the Governor not found in our constitutional framework. In Crable, the Court had before it legislation presented to the Governor which included a provision empowering the Governor to reduce an item in an appropriation bill. The Court recognized the fundamental concept of separation of powers in Crable, as well as the limits which the constitution imposes on the Chief Executive when reviewing legislation.

We held in Crable that an attempt by the Legislature to enlarge the exercise of the Chief Executive’s veto power or to change the specific mode or manner of its exercise was void. The holding was promulgated despite the belief that a different result might be desirable. We said in Crable:

“... (T)he courts must scrupulously maintain the powers delegated to the legislative and executive branches of government, but at the same time must as carefully maintain the constitutional restrictions imposed upon the exercise of those powers, for herein lies the safeguard of representative government. ...”

The result we reach today may or may not be the least disruptive for state government. However, the failure to conform with constitutional mandates evidenced in this case imperils one of the most basic safeguards of representative government— three independent branches of government operating within the parameters of the constitution.

Perhaps John Adams, one of the founding fathers, writing in defense of the British soldiers in the Boston Massacre Trials said it best:

“Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passions, they cannot alter the state of facts and evidence.” 14

Nor may this Court alter the fact that the Okla. Const, neither empowers the Legislature to pass multi-subject bills nor does it provide the Governor with the authority to divide legislation presented as one bill into multiple acts. The Chief Executive may not assume legislative functions15 and treat a single bill duly passed by the Legislature as two or more pieces of legislation. The Legislature’s authority to enact bills is restricted by art. 5, § 57’s proscription against multi-subject bills. The judiciary as the arbiter of the constitutionality of legislative enactments16 may not ignore a legislative enactment properly challenged. However, in addressing the challenge, we cannot anoint the Governor with the power to exercise review authority not granted by the constitution.

I write separately not only to express my full concurrence, but to address questions raised by the other writings filed in this cause. The majority opinion should not be read as indicating that the Governor may exercise authority not found within the bounds of the constitution. The Chief Executive may not divide legislation properly presented as one bill into multiple enactments in order to satisfy art. 5, § 57’s proscription against multi-subject bills. The views expressed by the majority create no “mega-veto” power in the Governor or superintending control in this Court. However, should the Governor choose to sign a multi-subject bill presented by the Legislature, the enactment would stand as law until properly challenged. Art. 6, § 11 and *705§ 12 provide that the Governor shall return a vetoed bill to the house in which it originated along with his/her objections. Neither section places any restriction upon the Governor’s reason for rejecting a bill. Nor do §§ 11 and 12 require that the Legislature meet any standard for override other than a two-thirds vote. Our pronouncement today cannot be read to empower the Governor as a super-legislator or to restrict the Legislature’s authority to override a gubernatorial veto.

. The Okla.Const. art. 5, § 57.

. The Okla.Const. art. 5, § 1.

. The Okla.Const. art. 6, § 11; Okla.Const. art. 6, § 12.

.The Court was not in agreement as to the treatment of the one-subject rule in State ex rel. Wiseman v. Oklahoma Bd. of Corrections, 614 P.2d 551, 557 (Okla.1978). In his dissent, Justice Doolin urged the Court to address the character of the multi-subject bill presented. He was joined by Justice Simms and then District Judge Alma Wilson, acting as a Special Justice. They were right. Additionally, it appears from the respondent’s brief in response to the petitioner's application to assume original jurisdiction and petition for writ of mandamus in Wise-man that the issue of the viability of multi-subject legislation presented to the Governor for approval was specifically presented. The respondents wrote on page 2 of the brief:

"Notwithstanding the question of the validity of the veto of Section 17 of House Bill No. 1567, the respondents contend that a peremptory writ of mandamus should not be issued by this court against them to carry out the terms and provisions of Section 17 of House Bill No. 1567 because such section of House Bill No. 1567 violates Section 10, Article 6, and Sections 56 and 57, Article 5 of the Oklahoma Constitution.”

Three pages of the seven page document were devoted to an argument that the various sections of H.B. No. 1567 bore no logical or natural connection with each other.

. See, United States v. Johnson, 457 U.S. 537, 549, 102 S.Ct. 2579, 2586-87, 73 L.Ed.2d 202, 213-14 (1982).

. The Okla.Const. art. 5, § 56.

. Stewart v. Oklahoma Tax Comm’n, 196 Okla. 675, 168 P.2d 125, 128 (1946); John Deere Plow Co. v. Owens, 194 Okla. 96, 147 P.2d 149, 152 (1943).

. Safeco Ins Co. v. Sanders, 803 P.2d 688, 692 (Okla.1990); Oklahoma City v. Brient, 189 Okla. 163, 114 P.2d 459-60 (1941).

. Darnell v. Chrysler Corp., 687 P.2d 132, 134 (Okla.1984); Cowart v. Piper Aircraft Corp., 665 P.2d 315, 317 (Okla. 1983).

. Peebly v. Childers, 95 Okla. 40, 217 P. 1049, 1051 (1923); Okla.Const. art. 3, § 1.

. Carter v. Rathburn, 85 Okla. 251, 209 P. 944, 946 (1922).

. Peebly v. Childers, see note 10, supra.

. Regents v. Trapp, 28 Okla. 83, 113 P. 910-11 (1911).

. J. Adams, Argument in Defense of the [British] Soldiers in the Boston Massacre Trials [December 1770].

. Carter v. Rathbum, see note 11, supra. Okla. Const, art. 5, § 1.

.Dow Jones & Co. v. State ex rel. Oklahoma Tax Comm’n, 787 P.2d 843, 845 (Okla.1990).