Sterling R. Fulmore v. W. P. Lane, Comptroller, 104 Tex. 499

Mr. Justice Dibrell delivered the following opinion. This is an action by Sterling R. Fulmore, relator, against W. P. Lane, State Comptroller, respondent, upon a petition for a writ of mandamus to compel the respondent, as Comptroller of the State, to issue his warrant to the State Treasurer, in favor of relator for the sum of $100, alleged to be due him by the State for salary for services performed during the month of September, 1911, as stenographic clerk in the office of the Attorney-General. No issue of fact is made by the pleadings, and the questions presented are those of law exclusively.

If an appropriation was made by the First Called Session of the Thirty-First Legislature for the support and maintenance of the Attorney-General’s department, and such appropriation was not vetoed by the Governor, as contended for by the respondent, then the relator is entitled to his writ of mandamus, compelling the respondent, as Comptroller of Public Accounts, of this State, to issue his warrant to the State Treasurer, for the amount of salary due relator.

Section 14,

chapter 17 of the Acts of Third Called Session of the Thirty-First Legislature, 1910, Session Acts, page 39, is as follows: “Section 14. No warrant shall be drawn on the Treasury of this State by the Comptroller based alone on the requisition of any individual or board, except as otherwise provided by law, but in all cases an account must first be made in pursuance of some specific appropriation, and filed with the Comptroller, by some one duly authorized and verified by affidavit.” The duties of the Comptroller under the above

section of the Act of the Third Called Session of the Thirty-First Legislature are essentially different from those under

section 13 of said Act, as recently held by this court in the case of Jewel P. Lightfoot, relator, v. W. P. Lane, respondent. Under t'he several provisions of said Act the Comptroller of Public Accounts is required to audit and approve or disapprove all claims against the State, and by the provisions of

section 14, as above quoted, where such claims are based alone on the requisition of any individual, which is here construed to mean any person authorized by law to make such requisition, or board, the Comptroller is not authorized to draw his warrant on the Treasury of the State, unless such claim is made in pursuance of some specific appropriation. Under such circumstances his duty is not merely ministerial, but discretionary in the degree that he is authorized to withhold the issuance of his warrant until he ascertains whether such claim is made in pursuance of some specific appropriation.

It should not, however, be implied that by the use of the word discretionary above the court holds that under the provision of

section 14, of said Act, the Comptroller is clothed with absolute or arbitrary power to withhold the issuance of his warrant, but that before he is required to issue same under the provisions of said

section 14 he must determine for himself whether the claim is or not made in pursuance of a specific appropriation. If no such appropriation has been made as a basis for the claim, the Comptroller is not required to issue the warrant, but on the other hand, if such appropriation has been made and the requisition for the warrant is made in pursuance thereof his duty to issue the warrant is mandatory and he can not lawfully withhold the issuance of the warrant.

Bespondent’s answer filed in this case does not disclose any reason why he refused to issue relator a warrant for his salary, which was due him for the month of September, 1911, but we find in the sixteenth paragraph of respondent’s petition an allegation, in substance, that respondent refused to issue such warrant upon the sole ground as stated by him, that the appropriation made by the First Called Session of the Thirty-Second Legislature for the support of the Attorney-General’s department had been vetoed in whole by the Governor, and that there was no legal appropriation available against which the Comptroller was authorized by law to draw his warrant.

While the respondent contends that the entire appropriation for the Attorney-General’s department was vetoed by the Governor, the relator contends that no part of such appropriation has been vetoed. That the appropriation for this department was made in a single item, and that no authority was given the Governor by the Constitution to veto a part of an item, and that in attempting to veto a part of an item the veto message was ineffectual and void as to all of said appropriation. These constitute the main questions for decision by this court and we proceed to their determination.

On the 26th day of August, 1911, at its First Called Session, the Thirty-Second Legislature of this State passed and sent to the Governor for his approval the General Appropriation Bill, carrying the grand total sum of $10,208,613.85, divided into two sums of $5,558,621.85 for the year ending August 31, 1912, and $4,649,992.00 for the year ending August 31, 1913, and making specific appropriations for the maintenance of the General Government and all of its departments, charitable institutions, etc.

The enacting clause of the bill is in words and figures as follows: “An Act making appropriations for the support of the State Government for two years beginning September 1, 1911, and ending August 31, 1913, and for other purposes, and prescribing certain regulations and restrictions in respect thereto; to make additional appropriations for the support of the State Government for the year ending August 31, 1911, and to pay various miscellaneous claims against the State, and declaring an emergency.” The first

section of the bill making the appropriation for the support of the Government is as follows: “BE IT ENACTED BY THE LEGISLATHBE OF THE STATE OF TEXAS: “Section 1.

That the following sums of money, or so much thereof as may be necessary, be, and the same are hereby appropriated, out of any money in the State Treasury not otherwise appropriated, for the support of the State Government from September 1, 1911, to August 31, 1913, and for other purposes, and for additional amounts to support the State Government for the year ending August 31, 1911, and to pay deficiencies enumerated herein, created according to law prior to August 31, 1911; provided that each and every employee of each and every institution or department of this State shall be paid by voucher issued in his or her name; said voucher should state the amount' of salary or sum due, and for what service performed with the date and time of said service, and no money or moneys shall be paid except upon presentation of said voucher or vouchers endorsed by the payee; provided, further, that all of said vouchers upon which any money or moneys have been paid shall be filed with the Comptroller for the inspectipn of the Governor and the Legislature or by their authority; and provided further, that the correct account shall be kept for all sums paid, or obligations outstanding against each item of appropriation herein and weekly statements of the net balances to the credit of each account, after all payments made and obligations outstanding have been deducted, shall be forwarded to the State Comptroller, and it shall be unlawful for the State Purchasing Agent or the authority in charge of any institution or department of this State to purchase or issue orders for any supplies or to otherwise pledge the credit of this State beyond the amount herein appropriated or otherwise lawfully authorized.” Immediately following

section 1 of the bill and on the right margin of the bill will be found the following words, which are carried through the entire bill and preceding the appropriation of each department: “For the years ending Aug. 31, 1913 Aug. 31, 1913.” Following

section 1 of the bill which makes the appropriation, come in consecutive order, the Executive Office, Mansion and Grounds, Department of State, State Revenue Agent, Public Buildings and Grounds, Department of Insurance & Banking, Texas Library and Historical Commission, State Tax Board, State Purchasing Agent', Public Printing, Bureau of Labor Statistics, State Inspector of Masonary, Public Buildings and Works, Adjutant General’s Department, Texas State Board of Health, Game, Fish & Oyster Commissioner, Live Stock Sanitary Commission, State Mining Board, and Pure Food Commission, for all of which subjects and departments large appropriations are made without any repetition of the appropriating language found in

section 1 of the bill, until the next succeeding department is reached, which is the Attorney-General’s department. The words “for the years ending August 31, 1913, August 31, 1913,” are carried forward and repeated at the beginning of the appropriation for each subject and department.

In making the appropriation for the Attorney-General’s department will be found the language and arrangement as follows: “ATTOEHEY-GEHEEAL’S DEPAETMENT. “For the years ending “Aug. 31, 1912 Aug. 31, 1913 “For the support and maintenance of the Attorney-General’s Department, including postage, stationery, telegrams, telephones, furniture, repairs, express, typewriters and fittings, contingent expenses, costs in civil cases in which the State of Texas or any head .of a department is a party; for the actual traveling expenses and hotel bills incurred by the Attorney-General or any of his assistants or employees in giving attention to the business of the State elsewhere than in the city of Austin; for depositions and procuring evidence and documents to be used in civil suits or contemplated suits wherein the State is a party; for law books and periodicals; for the payment of any and all expenses incident to and connected with the administration of the duties of the Attorney-General’s office; for the enforcement of any and all laws, wherein such duty devolves upon the Attorney-General; for the payment of any and all expenses in bringing, prosecuting and defending suits; for the payment of the salary and maximum fees provided by the Constitution for the Attorney-Genera,!, and for the payment of the salaries and compensation of his assistants and employees and other help deemed by the Attorney-General to be necessary to carry on the work of the Attorney-General’s Department, there is hereby appropriated the sum of Eighty-Three Thousand and One Hundred and Sixty ($83,160.00) Dollars, to be expended during the two fiscal years ending August 31, 1912, and August 31, 1913, to be paid by the Treasurer on. warrants drawn by the Comptroller upon vouchers approved by the Attorney-General,. $41,580.00 $41,580.00 “For the guidance of the Attorney-General in the expendiure of such sums out of the above item of appropriation of $83,160.00, as may be necessary to properly conduct the business of his department, he is hereby empowered and authorized to employ such regular assistants as he may deem necessary, not to. exceed seven in number at any one time, one" of such assistants he shall designate as First Office Assistant Attorney-General; and there may be expended out of the above item of appropriation a sum not exceeding $20,000 per annum for the purpose of paying the salary of the Attorney-General at $2,000 per annum and such fees as are prescribed by law, not to exceed $2,000 per annum, and for the purpose of paying the salaries of the assistants employed; provided that no assistant shall receive more salary than $2,500 per annum; and the Attorney-General shall have the power and authority to employ such stenographic clerks as he may deem necessary to carry on the work of the department, not to exceed four in number, one of whom shall be chief clerk and bookkeeper; and there may be expended out of the above item of appropriation a sum not to exceed $4,900 per annum to pay the salaries of such stenographic clerks, provided that no stenographic clerk shall receive more than $1,300 per annum; there may be employed one porter who shall be paid out of the above item of appropriation a salary of $480 per annum; there may be expended out of the above item of appropriation, for postage, stationery, telegrams, telephones, furniture, repairs, express, typewriters, and fittings, and contingent expenses so much thereof as may be necessary, not to exceed the sum of $1,350 per annum.

The remainder of the above item of appropriation, or so much thereof as may be deemed necessary by the Attorney-General, shall be expended for costs in civil cases in which the State of Texas or any head of a department is a party; for the actual traveling expenses and hotel bills incurred by the Attorney-General, or any of his assistants or employees, in giving attention to the business of the State elsewhere than in the city of Austin; for depositions and procuring evidence and documents to be used in civil suits, or contemplated suits, wherein the State is a party; for law books, and periodicals; and for the enforcement of any and all laws of the State of Texas wherein that duty devolves upon the Attorney-General, and for the payment of any and all expenses deemed necessary by the Attorney-General in the prosecution and defense of all suits, and particularly for the enforcement of the anti-trust and corporation laws and for the employment of special and other help when the same may be deemed necessary by the Attorney-General, provided that the head of said department shall keep a record of the absences of the various employees and the reasons therefor, whether from sickness, vacation or on leave of absence, and that the record of such absence be incorporated in the report made biennially by the head of said department; provided, that the amount herein appropriated as stated herein, and no more, shall be paid out of the general revenue for the Attorney-General’s department during the fiscal years beginning September 1, 1911, and ending August 31, 1913, and provided further, that no deficiency shall be created, nor shall any warrants be issued nor obligations incurred in excess of the amounts herein appropriated.” Upon receipt of the appropriation bill embracing the appropriation for the Attorney-General’s department by the Governor, on the following day and while the Legislature was still in session, he sent to the Senate and House of Representatives his veto message and filed with the Secretary of State the appropriation bill with a statement of his objections appended thereto, as provided by the Constitution.

To understand the effect of the veto message on the appropriation under investigation it will be necessary to set out in full said message and statement, which are as follows: “Executive Office, Austin, Texas, Aug. 29, 1911. “To the Senate and House of Representatives: “. . . I regret exceedingly the necessity for having to veto any portion of the appropriation for the executive departments of the State Government.

I regret that the Legislature felt it incumbent upon itself to seek to deprive the Governor of the constitutional prerogative of vetoing any item for any department where in his judgment such appropriation was excessive or unnecessary. In the bill as filed with the Secretary of State I have exercised this prerogative, nevertheless, and vetoed the lump sum of $83,160.00 appropriated to the Attorney-General’s department. After making this lump appropriation in one item, the Legislature divided the same into two items of $41,580.00 each for the fiscal years ending August 31, 1912 and 1913, respectively.

By striking out the lump appropriation and the words describing the same, and the appropriation of $41,580.00 for the second year, the sum of $41,580.00 is left subject to the use of the Attorney-General for the maintenance of his department for the two fiscal years named, any portion of which can be used, under0 the language of the bill, for any purpose in carrying on the duties of his office. This is not as much, perhaps, as should be appropriated to this department. I have no desire to cripple its efficiency, but under all the circumstances I felt impelled to take the course I have in this instance.

If further means are needed to carry on the work of said department, as shown in the- statement filed with the Secretary of State, I shall be glad to approve application for necessary deficiency warrants to meet all necessary expenses of that department. “I find by reference to the appropriation for this department by the Thirty-First Legislature that the sum of $34,830.00 was appropriated for the fiscal year ending August 31, 1910, and $24,330.00 for the' fiscal year ending August 31, 1911, or a total of $59,160.00 for the two years.

Of this amount about $11,902.00 has lapsed or will lapse, showing that the total requirements of that department for the last two years, with an increased force of assistants, was $47,258.00.

In view of these facts, the sum of $83,160.00 for the two years ending August 31, 1913, was deemed -by me to be excessive, and should not have been asked for, especially in view of the unsatisfactory condition of the finances of the State at this time. “On account of the manner in which the appropriation was made, no other course was left open to me than to veto the bulk sum of $83,160.00 and the item of $41,580.00 for the second year.

Even under present conditions and talcing the expenditures for the last two fiscal years as a basis, it will not require more than $6,000.00 or $7,000.00 deficiency t'o meet the requirements of the Attorney-General’s office up to the 31st day of August, 1913. The sum which remains in the bill subject to the Attorney-General’s unconditional control, as seems to have been the wish and will of the Legislature, will be amply sufficient, even upon the present' expensive basis under which that department is conducted, to last him until the next Legislature meets in January, 1913, without even a deficiency.

The paragraph containing the items which follow the appropriations for the respective years named is vetoed, because it is out of harmony with the remainder of the appropriation after the objections already noted and the items named were disapproved.” “Executive Office, Austin, Texas, Aug. 29, 1911. “To the Secretary of State: “As provided in

section 14 of

article 4 of the Constitution of Texas, I transmit herewith for file in the office of the Secretary of State, free conference committee substitute for Senate Bill Wo. 3, said Bill being ‘An Act making appropriations for the support of the State Government for two years beginning September 1, 1911, and ending August 31, 1913, and for other purposes, and prescribing certain regulations and instructions in respect thereto, to make additional appropriation for the support of the State government for the year ending August 31, 1911, and to pay various miscellaneous claims against the State, and declaring an emergency/ said Bill having passed the First Called Session of the Thirty-Second Legislature of the State of Texas, and having been received in the Governor’s office on August 26, 1911, at 6 :.30 p. m. “Said free conference committee substitute for Senate Bill Wo. 3 has been signed' by me on this date, and the items therein not objected to are approved.

I append to the said bill at the time of signing the same this statement, showing the items to which I object,-and the reasons therefor. Where the items objected to have no special reason assigned for that action, they are vetoed on the ground that the appropriations are not essential to the efficient administration of the State Government or of the particular department for which they may have been made. I have run a blue pencil through said items objected to, as well as the words describing them, as follows; except •where the appropriation covers a period of two years and that for only one year is vetoed:' . .

Attorney-General’s Department. “

(1) On page 30, the item in words as follows, ‘the sum of Eighty-Three Thousand and One Hundred and Sixty ($83,160.00) Dollars/ is objected to and disapproved, first, because it is an excessive appropriation of the public funds for the purposes appropriated at a time when the burden of taxation upon the people of this State must necessarily be increased to supply deficits and pay the necessary expenses of government; second, because the same is an evasion of the Constitution, in that it is an attempt to make an appropriation in gross and not for specific purposes as directed by the Constitution. “

(2) The item on page 30 of $41,580.00 for the fiscal year ending August 31, 1913, is objected to and disapproved. The remaining item of $41,580.00, as appropriated, is available for use until exhausted, and may be applied during both of the fiscal years ending August 31, 1912, and August' 31, 1913. If said sum of $41,580.00 is not sufficient for both of said years any additional amount actually needed for the efficient administration of the Attorney-General’s office can be provided by deficiency allowance when the same is ascertained to be necessary. “

(3) The following language, beginning on page 30 and concluding on page 34, is objected to and disapproved for the reason that' it is not in harmony with the appropriation for the Attorney-General’s department in consonance with the objections to the two items already elimited as outlined above.” Here follows the guidance clause in the appropriation for this department, which has heretofore been copied. in this opinion and it will not be necessary to repeat it here. The Constitution of this State,

section 14,

article 4, in part, provides: “If any bill presented to the Governor contains several items of appropriation, he may object to one or more of such items, and approve the other portion of the bill. In such ease he shall append to the bill, at the time of signing it, a statement of the items to which he object's, and no item so objected to shall take effect. If the Legislature be in session, he shall transmit to the House in which the bill originated, a copy of such statement, and the items objected to shall be separately considered.

If, on reconsideration,- one or more of such items be approved by two-thirds of the members present of each House, the same shall be a part of the law, notwithstanding the objection of the Governor.” As provided for in the foregoing

section of the Constitution, where any bill providing for several items of appropriation is presented to the Governor for his approval, he may object to one or more of such items, which items shall not take effect unless passed by both Houses by two-thirds of the members thereof. If the appropriation for the Attorney-General’s department contains one item of appropriation only, then the Governor’s veto struck out the whole appropriation, but if the appropriation contained more than one item, the veto struck out only a part of such appropriation.

It will therefore be necessary to determine, as a ■ matter of law, whether the appropriation contains one or more items. Having determined that issue we will then proceed to determine whether the veto of the Governor struck out the whole or a part of the appropriation. The first

section of the bill was intended to and did contain all the language necessary t'o make the appropriation for all the subjects and departments of the Government provided for in the measure, and it was not therefore necessary that such language should be repeated in order to make such appropriations effective. A repetition of the language making the appropriation for the maintenance of the departments of government was not essential, and may be regarded, where repeated, as surplusage. It evidently 'was so regarded by the Legislature, for out of about sixty departments, commissions, institutions and subject's for which appropriations were made the appropriating language contained in

section one of the bill has not been repeated, except in making the appropriation for the department of the Attorney-General. So that we regard the repetition of the language contained in

section one made under the head of Attorney-General’s department as without significance. In making the appropriations for all the other departments of State and State Institutions the expense for the payment of salaries of officers and employees and other expenses are itemized or apportioned for each year ending August 31, 1912, and August 31, 1913, and then aggregated in the two columns for each year.

The appropriation for the Attorney-General’s department, as will be seen from an inspection of same, as given above, does not itemize the appropriation or apportion the same as in the other eases, but enumerates the various purposes for which the aggregate sum of $83,160.00 may be expended under the direction and in the discretion of the Attorney-General.

He is given a discretion not given the other heads of departments, and the force to be employed in his department is only limited as to the maximum number that may be employed, and the salaries to be paid them is not fixed as in other cases, but the provision fixes only such salaries as may not be exceeded.

The sums that may be expended, for postage, stationery, telegrams, telephones, furniture, repairs, express, typewriters, and fittings, and contingent expenses are not fixed under the appropriation for this department as is done in all other department's, but for all of said purposes a sum is fixed which may not be exceeded. Such sum, however, may be expended under the provisions relating to this department for one or all of the enumerated purposes. In the respects last enumerated the provisions relating to the appropriation for the Attorney-General’s department are both peculiar and significant.

They are peculiar in that they are different from the provisions relating to any other department provided for in the bill, and significant in that they indicate either that greater confidence was imposed in the Attorney-General as the head of his department than in other-heads of departments, or that the labors of the office of Attorney-General are more variable than those of other departments. Either incentive might furnish the purpose of the Legislature in so arranging .the appropriation for this department.

In making the appropriation for the Attorney-General’s department the aggregate sum of $83,160.00 is appropriated in two separate and distinct sums of $41,580.00 each for the years ending August 31, 1912 and 1913. Whatever inference may be drawn from the language of the provisions of the bill relating to the Attorney-General’s department as to the intent of the Legislature, it must be concluded indubitably that the sum of $83,160.00 was divided into two items of appropriation, one for $41,580.00 available for the year ending August 31, 1912, and a like sum for the year ending August 31, 1913.

If this was not the intention of the Legislature, the words “For the years ending August 31, 1912—August 31, 1913,” would not have been carried forward into the appropriation for this department. This view is strengthened by the division of the aggregate sum appropriated into two items and placed under the two year columns respectively.

The idea that only one item of appropriation was made for the Attorney-General’s department, is rebutted by the legislative construction put upon that subject as expressed in the bill itself in what is called the “Recapitulation.” The recapitulation is a statement of the aggregate sums appropriated for each fiscal year, and in this instance, is as follows: It is clear to our minds that the Legislature intended and did appropriate two items of $41,580.00 each for the support of the department of the Attorney-General, and that'.the language referring to the sum of $83,160.00 was employed to designate the aggregate sum that was intended to be appropriated for that department for the two fiscal years before mentioned.

It is suggested as throwing light upon the legislative intent, that the clause contained in the proviso following the appropriation made for each department to the effect, “that no surplus shall be diverted from one account to another account,” is left out of the provision in the appropriation for the Attorney-General’s department. Leaving out that proviso could have been for one purpose only, to permit, if it does, the use of one appropriation for a definite purpose to be used for a different purpose when such sum has' not. been expended for the purpose originally designed.

The effect of leaving out' that proviso under the appropriation for the Attorney-General’s department is not presented in this case for consideration. Eliminating that clause from the provision making the appropriation under investigation can not be construed as indicating the purpose of the Legislature to make one distinct and separable item of appropriation for that department.

Read in the light of all the provisions of the bill and the separate and distinct appropriation of two sums or items for the two ensuing fiscal years, the language in the clause designed for the guidance of the Attorney-General may be read as for the guidance of the Attorney-General in the expenditure of such sums out of the above items of appropriation aggregating $83,160.00 as may be necessary to properly conduct' the business of his department, etc.

This construction is perfectly consistent with the other provisions of the appropriation, and the construction contended for by the relator and respondent that a single item of appropriation is made can not, in our judgment, be harmonized with the other provisions making the appropriation, as heretofore indicated. We therefore hold that there were two items of appropriation for the Attorney-General’s department. We next revert to the Governor’s veto message and determine its effect.

In construing the purport of a veto message the same rules of construction that govern in construing legislative acts should be applied. The veto power when exércised is a legislative and not an executive function. Pickle v. McCall, 86 Texas, 223; Cooley on Const. Lim., 185; People v. Bowen, 21 N. Y., 517. Tested by such rules of construction it is clear the Governor never intended to veto the entire appropriation made for t'he support of the department of the Attorney-General, for he so expressly declares his intention not to cripple that department'.

It is equally true that ’ he did intend to veto a part of such appropriation. The question is what effect did the veto message have on the appropriation referred to in the light of the evident intent of the Governor? It will not do to take an isolated sentence, or paragraph, from the message and determine the meaning of the whole therefrom, but rather to take all its parts and harmonize them as near as may be practicable and from the whole message determine its purpose and effect.

There can be no doubt but that the Governor intended to leave in that appropriation the sum of $41,580.00 appropriated for the year ending August 31, 1912, and to object t'o the item appropriating a like sum for the year ending August 31, 1913.

It is altogether consistent with his express purpose to have stricken out the $83,160.00 contained in the clause making such appropriation, for that was but a summing up of the two items of $41,580.00 each and was surplusage and its elimination in no manner affected either of the two items of appropriation for the two years beginning September 1, 1911, and ending August 31,

Section 1 of the bill made the appropriation for the support of all the departments, without repeating the language of appropriation. With, the $83,160.00 stricken out the appropriation for that amount in two items was still effective in the bill for use by the Attorney-General. The veto message left available for the support of the Attorney-General’s department the sum of $41,580.00, which is subject to requisition by the Attorney-General during the year ending August 31, 1912.

We therefore hold that the Governor vetoed the item for the department of the Attorney-General for the second year, amounting to $41,580.00, and left available the item of $41,580.00 appropriated for the first fiscal year ending August 31, 1912. Especial stress seems to be laid upon the following language of the veto message: “The remaining item of $41,580.00, as appropriated, is available for use until exhausted, and may be applied during both of the fiscal years ending August 31, 1912, and August 31, 1913.

If said sum of $41,580.00 is not' sufficient for both of said years any additional amount actually needed for the efficient administration of the Attorney-General’s office can be provided by deficiency allowance when the sum is ascertained to be necessary.” It is contended that the Governor by the use of the foregoing language has undertaken to change, alter and construct the appropriation bill, and thereby exercise a legislative function contrary to the intent of the Legislature itself. We do not think the message undertakes to do this, or that the complaint is well founded.

The provisions of the bill as applied to the appropriation for the Attorney-General’s department leaves the item of $41,580.00 for the year ending August 31, 1912, available. The veto message as we construe it on this point simply expresses an opinion as to the legal effect of the appropriation under the peculiar facts of the case as applied thereto, and does not "undertake to give the appropriation that effect hy virtue of its fiat. We think under the circumstances of this case the complaint is attended with an undue exercise of solicitude.

The authority of the Governor to veto the language of the appropriation bill under the Attorney-General’s department, which directs the method of his using the appropriation for that department, is questioned, and it" devolves upon the court to determine that issue. The duty of defining the power of the Executive in relation to the exercise of the veto privilege is, as suggested by Chief Justice Woods in the case of State v. Holder, 76 Hiss., 177, one of difficulty and delicacy.

The veto power of the Executive under our system of government is not'inherent in such officer as a legislative function, but is a power confided in him by the supreme authority of the State, and in exercising this function, while he is not confined to rules of strict' construction, he nevertheless must look to the Constitution for the authority to exercise such power. The principle here enunciated has been aptly put by the Supreme Court of Illinois, in the -case of Field v.

People, 3 Ill., 79, in discussing the question of the Governor’s veto power: “In deciding this question, recurrence must be had to the Constitution. That furnishes the only true rule by which the court can be governed. That is the charter of the Governor’s authority. All the powers delegated to him or in accordance with that instrument, he is entitled to exercise, and no others. The Constitution is a limitation upon the powers of the Legislative Department of the Government, but it is to be regarded as a grant of powers to the other departments.

Heither the Executive nor the Judiciary, therefore, can exercise any authority or power except such as clearly granted by the Constitution.

Hpon the principle of our Government, that the sovereign power of the State resides in the people, and that' only such powers as they have deligated to their functionaries can be exercised, where a claim of power is advanced by the Executive, the question is not whether the power in question has been granted to the people, but whether it has been granted to the Executive; and, if the grant can not be shown, he has no title to the exercise of the power.” The Governor of Arizona, under Act of Congress, passed July 19, 1876, was authorized to exercise the veto power to the extent that if he does not approve a bill, he shall return it, together with his objections, to the House in which it originated.

Ho authority was given the Governor "by that Act' to disapprove, a bill in part. Exercising the power delegated him as above stated, the Governor of Arizona returned an appropriation bill to the House in which it originated with his signature, and added after his signature that he approved the bill except as to subdivision 17 of

section 1. His veto thus expressed was by the Legislature sustained, but the Supreme Court of Arizona held that the bill, as a whole, became a law, as the Governor had no authority to veto a single item of an appropriation bill. Porter v. Hughes, 4 Ariz., 1, 32 Pac., 165. The Executive,' while in the exercise of the veto power, is exercising a legislative function, yet the authorities are uniform in holding that he has no power to construct legislation. His authority is surely negative. This principle was clearly laid down by Chief Justice Stayton in Pickle v.

McCall, 86 Texas, 223, in the following paragraph: “The Legislature has the affirmative power to enact laws, while the Executive has only a negative power, by the constitutional exercise of which he may defeat the will of the majority of both Houses of the Legislature; but this power has no effect when, upon his veto, two-thirds of the members present in each House declare that a hill shall become a law.” Applying the rules above laid down, we find the Governor has power to disapprove any bill passed by both Houses of the Legislature, and that when he disapproves any bill, the same shall not become a law, unless reconsidered and approved by two-thirds of the members of both Houses.

If the Legislature has adjourned at the time the Governor disapproves any bill the same fails to become a law. If a bill passed by the Legislature contains several items of appropriation the Governor is authorized to object to one or more of such items, and such item ór items so objected to shall not' become a part of the law, unless the Legislature be in session and such item or items objected to be reconsidered and approved by. two-thirds of the members of both Houses. The executive veto power is to be found alone in

section 14,

article 4 of the Constitution of this State. By that

section he is authorized to disapprove any bill in whole, or if a bill contains several items of appropriation, he is authorized to object to one or more of such items. ¡Nowhere in the Constitution is the authority given the Governor to approve in part' and disapprove in part a bill. The only additional authority to disapproving a bill in whole is that given to object to an item or items where a bill contains several items of appropriation.

It follows conclusively that where the veto power is attempted to be exercised to object to a paragraph or portion of a bill other than an item or items, or to language qualifying an appropriation or directing the method of its uses, he exceeds t'he constitutional authority vested in him, and his objection to such paragraph, or portion of a bill, or language qualifying an appropriation, or directing the method of its use, becomes noneffeetive.

So that we are constrained to hold that that' portion of the veto message contained in subdivision (3) of the statement of objections appended to the appropriation bill and filed in the office of the Secretary of State, was unauthorized and therefore noneffective, and the paragraph so attempted to be stricken out will remain as a part of the appropriation bill.

While the paragraph may not harmonize with the appropriation for the Attorney-General’s department as modified by the veto message of the Governor, yet the language of this clause must in it's application adjust itself to the changed condition of the appropriation to which it refers. In view of the above holding it is therefore ordered that' the clerk of this court issue the writ of mandamus as prayed for by relator directed to W. P. Lane, Comptroller of Public Accounts of the State of Texas, commanding him to issue and deliver to relator, Sterling B.

Fulmore, a warrant upon the Treasurer of the State of Texas, for the sum of $100 for salary due relator as stenographic clerk of the Attorney-General due for the month of September, 1911, and that relator pay all costs of this proceeding. Opinion filed ¡November 4, 1911.