THE STATE OF SOUTH CAROLINA
In The Supreme Court
John W. Drummond,
President Pro Tempore
of the South Carolina
Senate, on behalf of the
David M. Beasley,
Governor of the State
of South Carolina, Respondent.
IN THE ORIGINAL JURISDICTION
Opinion No. 24798
Heard February 4, 1998 - Filed June 2, 1998
VETO MESSAGES INVALID IN PART; UPHELD
W. Hogan Brown and Paula G. Benson, both of
Columbia, for Petitioner.
Attorney General Charles M. Condon, Assistant
Deputy Attorney General J. Emory Smith, both of
Columbia, for Respondent.
PER CURIAM: This matter is before the Court on Original
Jurisdiction to determine the effect of certain gubernatorial veto messages
returned with the 1997-98 General Appropriation Act, H. 3400, R. 222 and
the Capital Reserve Act, H. 3402, R.223.
I. May the Governor veto sentences and phrases from
an appropriation bill when the text being vetoed is not a
distinct item, section, or subsection?
II. May the Governor, through the issuance of a veto
message, redirect funds appropriated by the General
III. May the Governor combine multiple distinct items,
sections, or subsections into a single veto message for
reconsideration by the General Assembly?
I. Petitioner challenges the validity of certain vetoes on the
ground that the Governor exceeded his authority by vetoing sentences and a
phrase which are not distinct items, sections, or subsections of the
appropriation bill.1 Petitioner contends that by striking a word, phrase,
Veto 5: Part IB, section 30.21, Department of Health & Environmental
Control: Vital Records Fees, the following sentence: "Any fee increase
above the state fiscal year 1997 fee structure shall be returned to the
Vital Records Central Office (Office of Public Health Statistics and
Information Systems, Division of Vital Records)."
Veto 6: Part IB, Section 33.4, Department of Alcohol & Drug Abuse
Services Chemical Dependency Programs, the last four sentences of the
proviso as follows:
The Department will present a report to the Governor's Office,
to the Senate Finance Committee and to the House Ways and
Means Committee no later than December 1, 1997. The
Department is authorized to spend one half of the appropriated
funds for this project for the first six months of the current
fiscal year. The remaining funds for this project for the second
half of the fiscal year may only be spent upon the written
approval of the Chairman of the Senate Finance Committee
and the Chairman of the House Ways and Means Committee
clause, or sentence, the Governor creates legislation inconsistent with that
enacted by the General Assembly. Further, petitioner contends the
Governor's power does not extend to modifying legislation.
Petitioner asks the Court to apply the following as a standard of
review here: 1) the Constitution vests with the General Assembly the right
and sole authority to delineate the parts of an appropriation act, and 2) the
Governor may not establish "distinct items and sections" by the selection of
specific text, but may only object to "distinct items and sections" pursuant to
S.C. Coin Operators Assn. v. Beasley, 320 S.C. 183, 464 S.E.2d 103 (1995).
The Governor asserts he has stricken matter which constitute
distinct parts that are included under one label. Further, the Governor
contends the S.C. Constitution and precedent recognize that distinct parts of
legislation appropriating money can be vetoed, including phrases and
sentences. We disagree.
The constitutional provision which gives the Governor veto power
provides in pertinent part:
after receipt and written approval of the progress report
submitted to them on December 1, 1997. The Department is
required to include in their [sic] progress report due December
1, 1997, budgetary information on the matching funds for the
programs from all sources including, but not limited to, state,
federal, county and other local funds.
Veto 11: Part IB, Section 72.42, General Provision: State Owned Aircraft -
Maintenance Logs: "The Ethics Commission is authorized to make
investigations of state agency records relating to these reporting
requirements. Officials violating the 48 hour reporting requirement in this
paragraph are subject to a non-suspendable $100 fine."
Veto 19: Part 11, Section 54, Video Poker, the first sentence of item S that
reads: "Subsections A, 1, L, M, N, P, and R of the section are effective
November 1, 1997."
Veto 20: Part 11, Section 64, Drug Awareness Resistance Education Fund,
the phrase "with the advice and consent of the Senate."
Bills appropriating money out of the Treasury shall
specify the objects and purposes for which the same
are made' and appropriated to them respectively their
several amounts in distinct items and sections. If the
Governor shall not approve any one or more of the
items or sections contained in any bill appropriating
money, but shall approve of the residue thereof, it
shall become a law as to the residue in like manner
as if he had signed it. The Governor shall then
return the bill with his objections to the items or
sections of the same not approved by him to the
house in which the bill originated....
S.C. Const. art. IV, § 21.
In Coin Operators, the Governor vetoed subsections or parts of a
permanent provision. Petitioners in Coin Operators asserted the Governor
can only veto those parts labeled by the legislature as items or sections. This
Court disagreed, stating that the requirement of itemization is to be given a
common-sense construction. Cox v. Bates, 237 S.C. 198, 116 S.E.2d 828
(1960). However, in Coin Operators, the parts vetoed were labeled as
subsections. Here the vetoes in question go a step further and strike
sentences, words, and phrases of identifiable sections or items of the
appropriation bill. Longstanding practice demonstrates that Governors have
vetoed entire sections or subsections of appropriation bills. As noted in
Williams v. Morris, 320 S.C. 196, 464 S.E.2d 97 (1995), both this Court and
the United States Supreme Court have found that courts should give weight
to long -established practice and legislative interpretations in interpreting
constitutional provision relative to executive veto power.2
In the majority of instances where governors have exercised the
line item veto authority in appropriation bills, entire Part I or Part 11
provisions have been vetoed. Such parts were distinctly labeled by the
General Assembly. Practice since 1961 demonstrates that governors have
generally vetoed whole items distinctly labeled by the legislature. There are
S.Ct. 463 (1929) which was inadvertently cited in Coin Operators as White
River Lumber Co. v. State of Arkansas ex rel. Applegate, 279 U.S. 692, 49
S.Ct. 457 (1929).
a few instances between 1938 and 1961 where governors have vetoed
sentences and parts of sentences. However, there has been no legal challenge
to the practice of vetoing sentences or phrases. In Coin Operators, this Court
cited with some approval, the veto of part of a sentence. 3 This language
be characterized as dicta since the question before the Court did not address
the propriety of vetoes of parts of subsections.
States which have dealt with similar vetoes have disapproved of
governors striking parts of sections or items. The Iowa Supreme Court in
Rush v. Ray , 362 N.W.2d 479 (Iowa 1985), held that the item veto power
does not contemplate striking out conditions and restrictions alone as items
because that would be creating, rather than negating legislation. In Colton
v. Branstad, 372 N.W.2d 184 (Iowa 1985), the governor vetoed a portion of
section 12 of the appropriation bill. The court struggled with what
constitutes an item in the appropriation bill. The Colton court concluded that
those provisions in an appropriation bill which are separate and distinct from
other provisions in the same bill, insofar as the subject, purpose, or amount
of the appropriation is concerned, are items within the meaning of the
constitutional item veto provision. In Welden v. Ray , 229 N.W.2d 706 (Iowa
1975), the governor vetoed portions of conditions associated with various
appropriations. The plaintiffs challenged whether the power to veto includes
the power not only to nullify but also to alter. The court noted the governor
"may not distort, frustrate or defeat the legislative purpose by a veto of
proper legislative conditions, restrictions, limitations or contingencies placed
upon an appropriation and permit the appropriation to stand. [To do so] he
would create new law, and this power is vested in the Legislature and not
in the Governor." By selectively striking a word, phrase, clause, or sentence,
the Governor creates legislation inconsistent with that enacted by the General
Assembly. State ex rel. Coll v. Carruthers, 759 P.2d 1380 (N.M. 1988).
We have previously decided the governor can veto subsections of
the appropriation bill using common-sense construction as to what is an item
or section. Viewing past occurrences, Governors have used the line-item veto
power to strike similar matter as that challenged here. However, those
actions did not reach this Court for review. Further, such prior occurrences
cannot enlarge the constitutional authority of the Governor with respect to
the right to make vetoes under Art. IV, § 21. The vetoes of sentences, words
and phrases does not meet the common sense construction of an item or
section. The Governor has a negative power to void a distinct item. See
State v. Jones, 99 S.C. 89, 82 S.E. 882 (1914). The veto power can be
exercised only when clearly authorized by the constitution, and the language
conferring it is to be strictly construed. Colorado General Assembly v. Lamm,
704 P.2d 1371 (1985). The challenged vetoes effectively modify legislation
rather than nullify legislation. We conclude the Governor can only veto those
parts labeled by the legislature as items or sections. S.C. Const. art. IV, §
21. Veto messages 5, 6, 11, 19 in part, and 20 are invalid. Rush v. Ray
supra; State ex rel. Coll v. Carruthers, supra.
II. Petitioner contends the governor attempted to redirect funds to
another purpose through veto 17 combined with various vetoes to monetary
items in the Appropriation Act and the Capital Reserve Act. Petitioner
challenges the stated reason for the veto wherein the governor states "I am
vetoing this item to fulfill my commitment to restore the original
manufacturer's depreciation tax reduction."
The Governor contends no issue is presented for this Court to
decide. We agree. During oral argument, the Senate conceded that the
Governor's veto message expressing this intent does not have the force of law
since it is not a legislative act nor an Executive Order. Veto message 17
III. Petitioner asserts the Governor unconstitutionally returned his
objections to multiple distinct items and sections in a single veto message
forcing the legislature to reconsider multiple questions as one question. Veto
19 deleted subsections A, 1, L, M, N, P, R and part of S of the permanent
provision regulating video poker. As petitioner points out, similar action was
taken in the Governor's veto message 97 which was challenged in Coin
Operators, supra. However, no question was raised in Coin Operators
challenging the combining of objections. We find no constitutional nor
legislative requirement prohibiting the Governor from returning vetoes with
multiple items or sub-items included within a single objection in
appropriation bills. Likewise, there is no specific prohibition against the
legislature separately considering multiple items within an objection. Veto
message 19 upheld in part.
VETO MESSAGES INVALID IN PART AND UPHELD IN PART.