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24798 - Drummond v. Beasley

Davis Adv. Sh. No. 21
S.E. 2d

THE STATE OF SOUTH CAROLINA

In The Supreme Court

John W. Drummond,

President Pro Tempore

of the South Carolina

Senate, on behalf of the

Senate, Petitioner,

V.

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

IN PART

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.

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DRUMMOND V. BEASLEY

ISSUES

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

Assembly?

III. May the Governor combine multiple distinct items,

sections, or subsections into a single veto message for

reconsideration by the General Assembly?

ANALYSIS

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,


1 The following vetoes are challenged:

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

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DRUMMOND V. BEASLEY

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."

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DRUMMOND V. BEASLEY

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


2 Citing Okanogan, Methow Tribes v. United States, 279 U.S. 655, 49

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).

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DRUMMOND V. BEASLEY

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


3 Part of a sentence in Section 1, Act 344, 1949.

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DRUMMOND V. BEASLEY

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

upheld.

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.

p.8