that other governors had exercised item-reduction powers: "As to that principle the executive practice must be considered as settled. . . . 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." 58 A few years before the Pennsylvania decision there had been three other court cases on the item veto: In Arizona (1893), in Texas (1893), and in Mississippi (1898). The territorial governor of Arizona attempted to exercise the item-veto power although the constitution authorized only the general veto power. His action was held invalid by the judiciary.59 In Texas, the governor approved most of an appropriation bill before the legislature adjourned but then objected to an item after adjournment. The court decided that his action misled the legislators and unconstitutionally interfered with their right to override. 60 The Mississippi case concerned the governor's veto of conditions in an appropriation bill. Section 73 of the constitution authorized the governor to veto "parts of any appropriation bill." The court ruled that this section related only to "items of distinct appropriations." 61 It did not allow the governor to veto objectionable legislation on appropriation bills, a practice covered in Section 69 of the constitution. Section 69 prohibited the engrafting of legislation on appropriation bills, "but the same may prescribe the conditions on which the money may be drawn, and for what purposes paid. The Mississippi court insisted that the governor could not take from the legislature its prerogative to place conditions on appropriations. Since this issue would perplex state judges in future years, the details of the court's reasoning are instructive: if a single bill, making one whole of its constituent parts, "fitly joined together," and all necessary in legislative contemplation, may be dissevered by the governor, and certain parts torn from their connection may be approved, and thereby become law, while the other parts, unable to secure a two-thirds vote in both houses, will not be law, we shall have a condition of things never contemplated [by the legislature], and appalling in its possible consequences. Every bill of the character in question (an appropriation bill] has three essential parts: The purpose of the bill, the sum appropriated for the purpose, and the conditions upon which the appropriation shall become available. Suppose a bill to create a reformatory for juvenile offenders, or to build the capitol, containing all necessary provisions as to purpose, amount of appropriation and conditions, may the governor approve and make law of the appropriation and veto and defeat the purpose or the conditions, or both, whereby the legislative will would be frustrated, unless the vetoed purposes or conditions were passed by a two-thirds vote of both houses? This would be monstrous. The executive action alone would make that law which had never received the legislative assent. And after all and despite the pragmatic utterances of political doctrinaires, the executive, in every republican form of government, has only a qualified and destructive legislative function and never creative legislative power. If the governor may select, dissect, and dissever, where is the limit of his right? Must it be a sentence or a clause, or a word? Must it be a section, or any part of a section, that may meet with executive disapprobation? May the governor transform a conditional or contingent appropriation into an absolute one in disregard and defiance of the legislative will? That would be the enactment of law by executive authority without the concurrence of the legislative will and in the face of it.6 62 58 Id. at 177. 59 Porter v. Hughes, 4 Ariz. 1 (1893). 60 Pickle v. McCall, 86 Tex. 212 (1893). 62 Id. at 180-81. These themes would surface again and again in future cases: the legislature may place conditions on appropriations; the veto is destructive and not creative; the governor may not use the item veto to dissect a bill and distort the legislative will. However, subsequent courts would discover that it was not an easy matter to distinguish appropriate conditions from inappropriate conditions, to separate the act of destruction from that of creation, or to either determine or preserve the legislative will. THE PROGRESSIVE ERA: 1900-1915 The first decade of this century was a critical period in American administrative history. The corporate structure of the business sector had become highly bureaucratized and was capable of marshalling large numbers of employees toward particular goals. As the corporate structure spread and grew, its success led scholars and practitioners of public administration to suggest that the beneficial results came from following the precepts of "scientific management." Scientific management Frederick W. Taylor, generally viewed as the father of the scientific management school, was convinced that the principles and practices of the private sector were equally applicable to the public sector and testified to that effect before Congress.63 "Taylorism became more than a concept for management planning. Through its dogmas it acquired the trappings of a political ideology.64 Political progressives were impressed by the arguments of Taylor and the other promoters of scientific management. They supported the work of the research bureaus at the city and state level. Indeed, there was a faith that if the facts were made known about a problem, the right decision by public officials would be forthcoming. A number of ideological assumptions were implicit in the scientific management theory. The overarching values of scientific management and, to a large extent, progressivism, were captured in the phrase "economy and efficiency," which became the guiding light of good government. There was always "one best way" to organize and manage an activity. Such a value structure naturally regards the legislature as a nuisance, for legislatures are neither economic nor efficient. Hence, Progressives placed a high value on the executive, particularly the governor. The Progressive Movement had a wide-ranging agenda for reform. Prominent on this agenda was the need to enhance the powers of the governor, making that office the administrative chief of the state. It was recognized that the principal tool for making the governor the responsible administrative chief was control over money. The governor should be able to influence, if not dominate, the appropriation process and then have the authority and resources to 63 Frederick W. Taylor, The Principles of Scientific Management (1911); testimony of Frederick W. Taylor before the Special Committee of the House of Representatives to Investigate the Taylor and Other Systems of Shop Management, January 25, 1912. The committee reported its findings in H. Rep. No. 403, 62d Cong., 2d Sess. (1912). 64 Dwight Waldo, The Administrative State 47 (1948). insure that the funds appropriated were managed in a responsible and accountable manner. Distrust of state legislatures took another form at the turn of the century: the initiative and the referendum. These procedures gave citizens the power to exercise direct legislative control. The initiative allowed citizens to draft a proposed law or constitutional amendment and then have it submitted to the voters for approval or rejection. The referendum required a measure passed by the legislature to be submitted to the voters for approval. Initiatives and referendums were promoted by progressives as another check on legislatures. 65 The amendatory veto The political environment encouraged the grant of additional authority to the governor. Alabama rewrote its constitution in 1901 to permit the governor to return a bill to the legislature with proposed "amendments" that would remove his objections and the risk of a veto.66 The motivation behind this amendatory veto was at least partly to give the legislature an opportunity to correct its own deficiencies.67 The amendatory veto was considered supplemental to the governor's general veto and item-veto authority. A unique feature of Alabama's amendatory veto procedure was, and remains, that the governor's message proposing amendments is automatically introduced in the legislature and does not require introduction by a legislator. "The Governor of Alabama has, therefore, acquired one of the most valuable of legislative prerogativesthe power to propose a bill." 68 The amendment considered by the legislature could contain only what the governor proposed and nothing else." 69 The next year, 1902, Virginia adopted an amendatory veto provision in its constitution.70 It differed from the Alabama amendatory veto in that the governor submitted "recommendations" rather than "amendments" to the legislature. This distinction is important because it means that the legislature retained its prerogative to have members alone introduce legislation. A governor's recommendation need not be considered. The decision by Alabama and Virginia to adopt an amendatory veto did not set off a stampede by other states to emulate their example. The principal reason for this appears to be that many other states had developed similar procedures, but had achieved that end by informal means. One study reports on the following discussion of the amendatory veto at a Governor's Conference: At the Governor's Conference of 1911, Governor O'Neal of Alabama called attention to the working of the constitutional provision in that state, authorizing the governor to propose amendments; and stated that there had been no cases where proper amendments recommended had not been adopted. Governor McGovern of Wisconsin said the same result could be secured, and had been secured in Wiscon 65 Austin Ranney, "The United States of America," in David Butler and Austin Ranney, eds., Referendums 67-86 (1978). See Loren P. Beth, The Development of the American Constitution, 1877-1917 (1971), at 80. 66 Alabama Constitution, Art. V, § 125. 67 Frank W. Prescott, "The Executive Veto in Southern States," 10 J. Pol. 659, 663 (1948). 68 Walters, supra note 13, at 421. 69 Brandon v. Askew, 172 Ala. 160, 54 So. 605, 607-08 (1911). 70 Virginia Constitution, Art. V., § 6. sin, without any constitutional provision; and two years later Governor Colquitt of Texas reported that he had recommended amendments to bills. Not infrequently the veto messages of governors point out specific objections to certain parts of bills; and such bills may be repassed after amendment to meet the governor's criticism. The same result is often secured without a formal veto, when the governor lets it be known before a bill has passed the legislature that it will not be approved unless amended in certain respects. 71 Seven additional states or territories included the item veto in their constitutions between 1900 and 1915: Arizona in 1901, Virginia in 1902, Ohio in 1903, Kansas in 1904, Oklahoma in 1907, Michigan in 1908, and Alaska in 1912. Ohio, after denying the governor even a general veto for the entire nineteenth century, added the item veto to its constitution in 1903. The adoption of this item veto has an intriguing history. The constitution provided that an override by the legislature required a two-thirds majority in each house, backed by the strange provision that the vote must be not less than the bill received on its original passage (even if the bill passed unanimously).72 This peculiar procedure was incorporated into Ohio's constitution because of a statute passed in 1902, which provided that if a political party in its state convention voted in favor of a proposed constitutional amendment, it would be put on the ballot in the party column and a straight vote for the party ticket would also count as support for the amendment. By this device the item veto was added to Ohio's constitution.73 The item-veto procedure was amended in 1912 to reduce the override requirement from two-thirds to threefifths, to eliminate the strange provision about requiring as many votes for repassage as received on original passage, and to limit the item veto to appropriations.74 Prior to the Michigan constitutional convention of 1907, there had been agitation in support of the item veto. "Like many other states," according to one scholar, "Michigan had long been a victim of excessive tax burdens, resulting from 'pork-barrel' tactics to legislation which prevented a scientific approach to the problems of public finance." 75 At the convention, the item veto provision was accepted with little opposition.76 Advocates of the item veto argued a position that echoed statements made elsewhere on the virtues of enhanced gubernatorial power: The necessity of this provision is found in legislative experience. The mutual exchange of courtesies by members of the legislature whereby one agrees to support the appropriations desired by others, in the consideration that others will support those in which he is interested, had led to extravagance and to many vicious appropriations. The restrictions contained in this section, it is anticipated, will prevent such practice with distinct benefit resulting to the state.77 71 Fairlie, supra note 3, at 489. 72 Tuttle, supra note 4, at 107. 73 Id. at 108. 74 Id. at 109. The 1903 language provided that the votes for repassage "shall in each house respectively be no less than those given on the original passage." This sentence was altered in 1912 to read "in no case shall a bill be repassed by a smaller vote than is required by the constitution on its original passage," which is the current language. 75 Dorr, supra note 35, at 95. 76 Michigan Constitution, Art. III, § 37 (1908). 77 Quotation from the Constitutional Convention of 1907. in John A. Perkins, "The Role of the Governor of Michigan in the Enactment of Appropriations," Michigan Governmental Studies No. 11 (1943), at 53. As was to be often the case, however, the item veto did not match some of the expectations in Michigan: It is to be noted that the success of the negation depends upon the proper itemization of appropriation bills; and thus the legislature has in fact the power to nullify the section, in spite of the clear constitutional implication, by voting appropriations in lump-sums without regard to items. This it has persistently done to the embarrassment of governors pledged to economy. By way of retaliation several governors have interpreted the provision as conferring upon the executive constitutional authority to reduce sums as well as to strike items from appropriation measures. This expediency was first utilized by Governor Osborn in 1911 and the practice was never seriously challenged until 1931, when the issue was raised for judicial determination. 78 The caseload increases Whereas there had been only three cases from 1861 to 1900 with those cases packed into the last decade, the period from 1900 to 1915 ushered in about a dozen cases. New wrinkles in the use of the item veto tested the limits of the governor's power. In 1905, the governor of California received a bill which appropriated $45,616.30 to pay a claim. He advised the claimants that the amount was excessive and that he refused to sign the bill unless the amount was reduced. He persuaded them to accept $25,000 and drafted an agreement, which they signed. He then approved the bill. The claimants later went to court to challenge the governor's action. The court held that the governor was without authority to make such agreements. He was empowered to exercise the item veto but not to modify the item: "The governor has no legal power to reduce the amount of the claim." 79 The governor of California did not receive item-reduction authority until 1922.80 An item veto by the governor of West Virginia was disallowed by the courts in 1909 because he had failed to follow the state constitution's requirement that he express his disapproval to the legislature while it was in session. The constitution directed that "if he disapprove the bill, or any item or appropriation therein contained, he shall communicate such disapproval with his reasons therefor to the House in which the bill originated. . . ." Immediately before adjournment the governor met with a joint committee of the two houses and told the lawmakers that he had no further communications to make. After adjournment sine die, however, he vetoed the sum of $2,080 for the widow of the attorney general. The court held that the item veto could only have been consummated by communicating the governor's disapproval to the legislature.81 An item veto by the governor of Washington in 1909 raised the perennial question of how the veto can be invoked on a portion of a bill without disrupting the internal consistency and logic of the sections that remain. The governor had vetoed the first four sections of a bill and approved the last two, one of which repealed an earlier act. As originally passed by the legislature, the repealing section was connected in substance and logic to the first four sections. The court held that when the first four sections fell, because of the item veto, so did the repealing section: "In other words, when the execu 78 Dorr, supra note 35, at 96. 79 Lukens v. Nye, 156 Cal. 498, 507 (1909). 80 Paul Mason, comp., Constitution of the State of California 86 (1941). 81 May v. Topping, 65 W.Va. 656, 659 (1909). |