Opinion
No. 75-895
Decided July 14, 1976.
Governor — Item veto power — Section 16, Article II, Constitution — Unauthorized use, when — Am. Sub. S.B. No. 170 not an appropriation bill — Governor's act null and void — Effect upon bill.
IN MANDAMUS.
On September 23, 1975, an original action in mandamus was filed in this court by the Akron Education Association and three Ohio residents and taxpayers (hereinafter relators) against Martin Essex, State Superintendent of Public Instruction and Edgar L. Lindley, Tax Commissioner of Ohio (hereinafter respondents).
The petition in mandamus alleges in pertinent part:
"6. The 111th General Assembly, in regular session, 1975-1976, duly enacted Amended Substitute Senate Bill No. 170, amending and making changes in those provisions of the Ohio Revised Code known in their entirety as the School Foundation Laws.
"7. Amended Substitute Senate Bill No. 170 was presented to the Honorable James A. Rhodes, Governor of Ohio, for his approval. Thereafter, and on August 29, 1975, Governor Rhodes, purporting to act under the authority given him by Section 16 of Article II of the Ohio Constitution, attempted to disapprove `by item' seven parts of such bill, transmitted his objections to the bill in writing to the Clerk of the Senate of Ohio, signed the bill and delivered it to the Secretary of State of Ohio for filing.
"* * *
"8. Section 5747.04 of Amended Substitute Senate Bill No. 170, in Section 9 thereof, imposes a mandatory duty on respondent Martin Essex to accept proposals from district boards of education for establishing one urban education pilot project within a school attendance area encompassing a high school and its feeder elementary and junior high schools; to establish general guidelines to be followed by districts in submitting proposals; to select, on or before September 1, 1976, from among the proposals submitted, one area to serve as the pilot project area, and to transmit a recommendation for funding and reasons for the recommendation to the chairman of the House Education Committee and the Senate Education and Welfare Committee.
"9. Section 9 of Ohio Revised Code Section 5747.04 further provides that a board of education submitting proposals to respondent Essex is to give primary consideration to the recommendations made by an advisory committee composed of fifteen (15) members, five of whom are to be classroom teachers elected at a meeting called and chaired by the president of the teachers' association recognized by the board of education to represent teachers in the school district.
"* * *
"[12.] * * * Relators say that the power of the Governor of Ohio to object to or disapprove legislative bills, or parts thereof, is conferred by Section 16 of Article II of the Constitution of the state of Ohio, and such power to object or disapprove any item or items is limited to `* * * any bill making an appropriation of money * * *'. Relators say that Amended Substitute Senate Bill No. 170 is not an appropriation bill, that such bill does not make an appropriation of money, nor are there any items in such bill making an appropriation of money, and therefore, the Governor's disapproval of seven items in said bill are null, void, and of no effect.
"13. Relators say that the provisions of Amended Substitute Senate Bill No. 170, particularly those matters hereinbefore referred to in paragraphs 7, 8, and 9, impose clear legal duties on respondents Essex and Lindley to perform the acts therein required as a part of the official duties imposed on them by their offices; that such respondents have failed and refused to carry out such mandatory legal duties, and relators have no plain and adequate remedy in the ordinary course of the law."
On October 20 and 21, 1975, respondents filed timely motions to dismiss the complaint.
On December 3, 1975, the Clerk of the Supreme Court instructed respective counsel for the parties to "prepare and file their briefs on the merits," limiting the arguments therein to:
"* * * the Governor's power to `line-item' veto parts of Am. Sub. Senate Bill 170, and the effect on such legislation if the action of the Governor is invalidated."
Messrs. Topper, Alloway, Goodman, DeLeone Duffey, Mr. James F. DeLeone, Mr. N. Victor Goodman, Messrs. Green, Schiavoni, Murphy Haines and Mr. Eugene Green, for relators.
Mr. William J. Brown, attorney general, Mr. Richard J. Dickinson and Mr. John C. Duffy, Jr., for respondents.
The primary question presented by this action is whether Am. S.B. No. 170 is a bill making an appropriation of money. If it is not, the exercise by Governor Rhodes of his constitutional power to item veto any distinct part of an appropriation bill will not be sustained under the facts of this cause.
Section 16, Article II of the Ohio Constitution provides, in pertinent part:
"* * * The Governor may disapprove any item or items in any bill making an appropriation of money and the item or items, so disapproved, shall be void, unless repassed in the manner prescribed by this section for the repassage of a bill."
Webster's New International Dictionary (2 Ed.) defines an appropriation bill as a measure before a legislative body which authorizes "the expenditure of public moneys and stipulating the amount, manner, and purpose of the various items of expenditure." This definition of an appropriation bill relied upon by relators, was cited in State, ex rel. Finnegan, v. Dammann (1936), 220 Wis. 143, 264 N.W. 622. The Dammann court, at page 624, interpreted the above-stated definition to require a bill to contain, somewhere within its four corners, a specific appropriation in money. We agree.
Respondents maintain that Am. Sub. S.B. No. 170 is a "bill making an appropriation of money" because Section 3 of the bill does so. Section 3 of the bill provides:
"In addition to the payments to county boards of education under Section 3317.11 of the Revised Code and the additional $3.00 per pupil per year payment required by Am. Sub. H.B. 155 of the 111th General Assembly, the Department of Education shall pay each such board in fiscal year 1975-1976 and in fiscal year 1976-1977, an amount in each of such years equal to $3.00 times the total number of pupils under the board's supervision certified under Section 3317.03 of the Revised Code for all the local school districts within the limits of the county district.
"Payment made under this section shall be made in the same manner and from the same source as payments made pursuant to Section 3317.11 of the Revised Code from appropriation 207-501 made in Am. Sub. H.B. 155 of the 111th General Assembly." (Emphasis added.)
Examination of the foregoing Section 3 of Am. Sub. S.B. No. 170 reveals respondents' contention that such section "appropriates money" to be without merit. The emphasized portion of Section 3 of the bill clearly indicates that the source of the funds to be expended, pursuant to Am. Sub. S.B. No. 170, is Am. Sub. H.B. 155.
We conclude, therefore, that Am. Sub. S.B. No. 170 is not an appropriation bill, for it simply does not anywhere by its terms appropriate money.
Accordingly, since Am. Sub. S.B. No. 170 is not an appropriation bill, the Governor's exercise of the item veto power conferred upon him by Section 16, Article II of the Ohio Constitution, under the facts of this case, is unauthorized by law, and is hereby declared to be null and void.
In order to disapprove the specific portions of Am. Sub. S.B. No. 170 to which he apparently objected, the Governor's only recourse under the circumstances herein presented was to veto the entire bill pursuant to Section 16, Article II. This he did not choose to do.
Both relators and respondents assert that in the event the Governor's exercise of the item veto power is declared null and void herein, Am. Sub. S.B. No. 170 is now effective in its entirety. We agree. Section 16, Article II of the Ohio Constitution requires this result. In pertinent part, that constitutional provision reads:
"If a bill is not returned by the Governor within ten days, Sundays excepted, after being presented to him, it becomes law in like manner as if he had signed it, unless the General Assembly by adjournment prevents its return; in which case, it becomes law unless, within ten days after such adjournment, it is filed by him, with his objections in writing, in the office of the Secretary of State. The Governor shall file with the Secretary of State every bill not returned by him to the house of origin that becomes law without his signature."
In the instant case, the General Assembly had not prevented the return of Am. Sub. S.B. No. 170 to the Senate by "adjournment." Rather the Governor returned the bill to the Senate with his written objections. Under the facts of this case, the Constitution clearly indicates that no action by the Governor was necessary for Am. Sub. S.B. No. 170 to become law, and, it therefore is now effective in its entirety.
In conclusion, by virtue of the decision reached herein, respondents are under a clear legal duty to carry out the provisions of Am. Sub. S.B. No. 170. Because relators are without a plain and adequate remedy in the ordinary course of law, a writ of mandamus is therefore allowed. State, ex rel. Pressley, v. Indus. Comm. (1967), 11 Ohio St.2d 141.
Writ allowed.
O'NEILL, C.J., HERBERT, CORRIGAN, STERN, CELEBREZZE, W. BROWN and P. BROWN, JJ., concur.