FULMORE v. LANE, State Comptroller, 140 S.W. 405

DIBRELL, J. 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 f-avor 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, c. 17, of the Acts of Third Called Session of the 31st Legislature, 1910 (Session Acts, page 39), is as follows: “Sec. 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, 140 S. W. 401. Under the 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 cannot lawfully withhold the issuance of the warrant.

Respondent’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 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 biil is in words and figures as follows: “An act making appropriations for the support of the state government for two years beginning September 1st, 1911, and ending August 31st, 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 31st, 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 Legislature 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 1st, 1911, to August 31st, 1913, and for other purposes, and for additional amounts to support the state government for the year-ending August 31st, 1911, and to pay deficiencies enumerated herein, created according to law prior to August 31st, 1911; provided that each and every employé 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 inspection 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 ail 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 Tears Ending— “August 31st, 1912 — August 31st, 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 Masonry, Public Buildings and Works, Adjutant General’s Department, Texas State Board of Health, Game, Fish & Oyster Commissioner, Live Stock Sanitary Commissioner, 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 31st, 1912 — August 31st, 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: “Attorney General’s Department.

For the Tears Ending— August 31, 1912 — August 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 hills incurred by the Attorney General or any of his assistants or employés 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 General, and for the payment of the salaries and compensation .of his assistants and employés and other help deemed by tha 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 31st, 1912, and August 31st, 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 tbe guidance of tbe Attorney General in tbe expenditure of sucb sums out of tbe above item of appropriation of $83,160.00 as may be necessary to properly conduct tbe business of bis department, be is hereby empowered and authorized to employ sucb regular assistants as be may deem necessary, not to exceed seven in number at any one time, one of sucb assistants be shall designate as First Office Assistant Attorney General; and there may be expended out of tbe above item of appropriation a sum not exceeding $20,000.00 per annum for the purpose of paying the salary of tbe Attorney General at $2,000.00 per annum and such fees as are prescribed by law, not to exceed $2,000.00 per annum, and for the purpose of paying tbe salaries of tbe assistants employed; provided that no assistant shall receive more salary than $2,500.00 per annum; and the Attorney General shall have the power and authority to employ such stenographic clerks as be may deem necessary to carry on tbe work of tbe 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 $4,900.00 per an-num to pay the salaries of sucb stenographic clerks, provided that no stenographic clerk shall receive more than $1,300.00 per annum; there may be employed one porter who shall be paid out of tbe above item of appropriation a salary of $480.00 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 $1,350.00 per an-num.

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 employes, 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 antitrust and corporation laws and for the employment of special counsel 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 employes 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 1st, 1911, and ending August 31st, 1913, and 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: “ * * * X 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, under 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 taking 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 to 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 objection already noted and the items named-, were disapproved.” “Executive Office, “Austin, Texas, August 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 substi- - tute for Senate Bill No. 3, said bill being ‘An. act making appropriations for the support. of the state government for two years beginning September 1st, 1911, and ending August 31, 1913, and for other purppses, 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 31st, 1911, and to pay various miscellaneous claims against the state, and declaring an emergency,’ said bill having passed the first called session of the 32d Legislature of the state of Texas, and having been received in the Governor’s office on August 26th, 1911, at 6:30 p. m. “Said free conference committee substitute for Senate Bill No. 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 31st, 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 31st, 1912, and August 31st, 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 eliminated 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, art. 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 case he shall append to the bill, at the time of signing it, a statement of the items to which he objects, 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 Gevernor’s veto struck out the whole of the 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 to 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 60 departments, commissions, institutions, and subjects for which appropriations were made the appropriating language contained in

section 1 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 1, 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 employes and other expenses áre 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 cases, but enumerates the various purposes for which the aggregate sum of $83,160 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 departments; but for all of said purposes a sum is fixed which may not be exceeded. Such sums, 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 .aré 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 mating the appropriation for the Attorney General’s department the aggregate sum of $83,160 is appropriated in two separate and distinct sums of $41,580 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 con•cluded indubitably that the sum of $83,160 was divided into two items of appropriation, •one for $41,580 available for the year ending August 31, 1912, and a libe sum for the .year ending August 31, 1913.

If this was not the intention of the Legislature, the words, “For the years ending August 31st, 1912— August 31st, 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: Recapitulation. For the Tears Ending- August 31, 1912 — August 31, 1913.

Executive Office .$45,901.00 23,916.00 Mansion and Grounds. 8,650.00 1,650.00 Department of State.20,770.50 19,480.00 State Revenue Agent. 4,550.00 4,450.00 Public Buildings and Grounds. 58,090.00 76,830.00 * * * v * # * * Attorney General’s Department... 41,580.00 41,580.00 It is clear to our minds that the Legislature intended to and did appropriate two items, of $41,580 each, for the support of the department of the Attorney General, and that the language referring to the sum of $83,160 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 cannot 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 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 cannot, in our judgment, be harmonized with the othfer 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 exercised, is a legislative and not an executive function. Pickle v. McCall, 86 Tex. 223, 24 S. W. 265; 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 the 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, appropriated for the year ending August 31, 1012, and to object to 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 $83,150 contained in the clause making such appropriation, for that was but a summing up of the two items of $41,580 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 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, 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 de-partment of the Attorney General for the ■second year, amounting to $41,580, and left available the item of $41,580 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 he 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 provision of the bill as applied to the appropriation for the Attorney General’s department leaves the item of $41,-580 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 by virture 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 Miss. 177, 23 South. 643, 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 ease 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 character of the Governor’s authority. All the powers delegated to him by 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.

Neither the executive nor the judiciary, therefore, can exercise any authority or power, except such as clearly granted by the Constitution.

Upon the principle of our government that the sovereign power of the state resides in the people, and that only such powers as they have delegated to their functionaries can he 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 cannot be shown, he has no title to the exercise of the power.” The Governor of Arizona, under act of Congress passed July 19, 1876 (19 Stat. 91, c. 212), 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.

No 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 had approved the bill except as to subdivision 17 of

section 1. 1-Iis 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 purely negative. This principle was clearly laid down by Chief Justice Stayton in Pickle v. McCall, 86 Tex. 223, 24 S.

W. 268, 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 tbe members present in each house declare that a bill 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 or 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, art. 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 con-, tains 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 the 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 noneffective.

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 its 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 R.

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. BROWN, C. J. Is there an appropriation of funds in the treasury available for the-payment of the warrant which relator seeks to have respondent issue? is the question before us. We all agree that such appropriation was made and is in force; therefore the-writ of mandamus will issue to respondent, commanding him to issue a warrant to relator as prayed for.

We do not agree as to-the amount of the appropriation. We reach the same conclusion by different course of reasoning, and each member of the court will assign the reasons which lead him to the-common result. I agree with Judge DIBRELL in the main, but have some reasons, not elaborated by him. I disagree with Judge-RAMSEY mainly as to the standpoint from, which we view the question. Each paragraph of the bill is dependent, upon the first

section thereof, and to be com-■píete the paragraph which concerns the Attorney General’s department should he read, if printed, thus: “Be it enacted by the Legislature of the state of Texas: “Section 1. That the following sums of money, or so much thereof as may he necessary, be, and the same are hereby appro5 printed out of any moneys in the state treasury not otherwise appropriated for the support of the state government from September 1st, 1911, to August 31st, 1913. * * * “Attorney General’s Department.

For the Years Ending- August 31, 1912 — August 31, 1913. •For the support and maintenance o£ the Attorney General’s department, * * * there is hereby appropriated, eighty-three thousand and one hundred and sixty ($83,160.09) 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.” In making this statement of the appropriation I omit the different items for which the Attorney General is authorized to expend the money, as being immaterial to the construction of the language which concerns the matter under investigation.

Standing alone, this language which is embraced in the portion of the bill on the left of the column — “to be expended during the two fiscal years ending August 31, 1912, and August 31, 1913” — would authorize the Attorney General to use the full sum of $83,100 at any time during the two years specified. But the language which authorizes the use •of the $S3,160 during the two years is general, while the language that directs the amount to be expended each year is special words, addressed to the same subject, and will control and interpret the meaning of the general words. Lewis, Stat. Const. §§ 347, 348.

So that I call 'attention to the fact that in this appropriation, as part of the same paragraph, the language, “for the two fiscal years ending August 31, 1912, and August 31, 1913,” as found at the top of the two columns, is upon the same subject as the general language which we have above quoted, and is specific in stating when the sum is to be expended; that is, that one half should be expended during the year ending August 31, 1912, and the other half during the year’ ending August 31, 1913. The sum of $83,160 is the aggregate sum.

If this be not correct, then specific language is subordinate to the general terms, contrary to the sound rules of construction. I believe that this is a proper construction of that paragraph of the appropriation bill and that the effect of it is to appropriate the full sum of $83,160, to be expended one-half in each of the years named.

If this be correct, then each of the sums became a separate item, and, being a separate and distinct item from the main sum, the Governor had the power to veto either of the sums mentioned, and, having exercised that power in vetoing the sum which was appropriated for the last year of the time named, that veto leaves the other item for use during the time named; that is, for the year ending August 31, 1912.

I will further call attention to this fact, with regard to this appropriation, that, taking this language as it is constructed, if the sum of $83,160 were stricken from the bill there would remain a valid appropriation for the sum of $41,580 for the year ending August 31, 1912, and for the year ending August 31, 1913. I think this is legitimate to show that the Legislature intended there should be a sum appropriated for each year, and that each one of the sums appropriated should be independent of the other, which constitutes each an item of itself.

If it.be held that the sum of $83,160, mentioned in the printed portion of the bill, constitutes the item of appropriation, and that the others are simply mentioned as parts of it and dependent upon it, then, being an item in itself, the Governor had the power to veto it, for he might veto any item in the bill. He did veto the lump sum. In order to arrive at what is the effect of the Governor’s veto, we must read it in connection with the bill as it was when he received it.

We find that in his veto message he expressly says that he vetoes the $83,160 mentioned in the appropriation bill, and gives his reasons therefor — that the. sum is excessive. There is no ambiguity in the language; it is explicit; it is emphatic. He intended to and did veto the lump sum. It is true that the Governor did not intend to destroy the whole appropriation. His purpose was to save one-half of it by leaving the appropriation for the first year standing, and to make his veto of the last

part conclusive and effective by striking out and vetoing the appropriation for the last. year. The erasure was not authorized, but serves to emphasize the intention to forbid that sum. The inconveniences that may arise out of this situation must be dealt with by other departments of the government. It is ordered that the writ of mandamus as prayed for issue to the respondent, commanding him to issue to relator the warrant sought in this proceeding. It appearing that the respondent has not willfully denied the relator’s right, it is ordered that relator pay all costs. See 140 S. W. 1082.