Lukens v. Nye — 156 Cal. 498

Majority

p. 498

[Sac. No. 1677.

In Bank.

November 22, 1909.]

EMMA MULLAN LUKENS et al., Respondents, v. A. B. NYE, Controller of the State of California, Appellant.

Headnote

Governor of State—Exercise of Legislative Function in Approval of Bills—Extent of Powers.—The governor of the state, while engaged in considering bills which have passed both houses of the legislature and which are presented to him for approval or disapproval, acts in a legislative capacity and not as an executive. He is for that purpose a part of the legislative department of the state. As an executive officer, he is forbidden to exercise any legislative power or function except as in the constitution provided, and his powers, as a part of the legislative department, are specifically enumerated in the constitution.

Id.—Limited Powers of Governor—Exercise in Contravention of Powers.—When exercising the powers of approving or disapproving bills, conferred by section 16 of article IV", of the constitution, the governor is a special agent with limited powers, and can act only in the specified mode and can exercise only the granted powers. If he attempts to exercise them in a different mode, or to exercise powers not given, his act will be wholly ineffectual and void for any and every purpose.

Id.—Approval by Governor—Modification of Law.—Except in the single instance of a bill containing several items of appropriation of money, when he may approve one or more of them and object to the others, the governor is not empowered to modify or change the effect of a proposed law, or to do anything concerning it except to approve or disapprove it as a whole. If he approves it, his duty requires him to sign it as evidence of such approval.

Id.—Approval Must be of Entire Bill—Qualified Approval.—With the exception stated, the approval by the governor must be of the bill as a whole and without qualification. Any attempt on his part to attach to his approval any qualification, or to withhold his consent to a part of' the law and give it to other parts, will either be entirely nugatory and ineffectual and leave the approval absolute, or it will completely nullify the approval and operate as a veto of the whole bill.

Id.—Agreement With Beneficiary to Except Part of Appropriation.—The governor cannot qualify or change a law by any agreement or contract on behalf of the state, made at the time of his approval, with persons who are to be benefited by the law, whereby they agree to release to the state a part of such benefit. His signature, once attached to the bill, is the exclusive and conclusive evidence of his unqualified approval, and no evidence, nor the judgment of any court, can be allowed to modify or change the terms or effect of

p. 499

the law, or prevent or impair its complete operative force. This rule is as applicable to a law appropriating money to satisfy the claim of a private individual as to any other law.

Id.—Invalidity of Agreement—Proof of Agreement Inadmissible.—An agreement between the governor and the beneficiaries under an act appropriating money to satisfy a claim against the state, to the effect that .the controller of the state should draw his warrants for a smaller sum than that appropriated in satisfaction of the whole amount, is futile and void for any purpose; and in a proceeding by the beneficiaries to enforce the payment of the full amount so appropriated, such an agreement cannot be proved. It is immaterial whether such agreement was in writing or in parol.

Id.—Agreement Against Public Policy—Beneficiaries not Es-topped.—Such an agreement is wholly void, and against public policy, and cannot operate as an estoppel against the beneficiaries of the act from claiming the whole of the amount appropriated, and evidence thereof is inadmissible as proving the basis of such estoppel.

Id.—Legislative Motives Cannot be Considered.—The motives which impelled the legislature, or any component part or member of it, to enact a law, cannot be made a subject of judicial inquiry for the purpose of invalidating or preventing the full operation of the law.

Id.—Mandamus Lies to Enforce Appropriation.—Notwithstanding the mating of such an agreement between the governor and the beneficiaries under the act, a writ of mandate will lie at the instance of such beneficiaries to enforce the payment of the entire sum appropriated by the act.

APPEAL from a judgment of the Superior Court of Sacramento County. Peter J. Shields, Judge.

The facts are stated in the opinion of the court.

U. S. Webb, Attorney-General, and Malcolm C. Glenn, Deputy Attorney-General, for Appellant.

G. Russell Lukens, A. A. De Ligne, and Hiram W. Johnson, for Respondents.

This is an action in mandamus to compel the controller to issue a warrant on the state treasurer to the plaintiffs for the sum of $22,808.15, being the second installment of the amount appropriated to John Mullan by the act of the legislature approved March 22, 1905 (Stats. 1905, p.

p. 500

791), in satisfaction of his claim against the state. The plaintiffs are his assignees.

The act appropriates $45,616.30, in payment of said claim, and declares that “the controller is hereby authorized and directed to draw his warrant for the said sum and the treasurer of state is hereby authorized and directed to pay the same, and thereupon the said John Mullan shall make and deliver unto the controller a full receipt and release of his said claim.” One half is made payable on January 1, 1906, and one half on January 1,1907. The installment due on January 1, 1906, has been paid. This action is to compel a warrant for the remaining one half. The act exempts the claim from the provisions of section 672 of the Political Code and therefore it is not required to have the sanction of the board of examiners.

The answer of the controller alleges the following facts in defense. Prior to the passage of the act the claim had been assigned'to the plaintiffs. After the bill had been passed in both houses of the legislature and before its approval, the governor informed the plaintiffs that the amount allowed by the bill was excessive and that he would not approve the same unless the plaintiffs would agree to accept the sum of twenty-five thousand dollars in full satisfaction of the claim. Thereupon plaintiffs and the governor agreed that twenty-five thous- and dollars was the full amount of the claim. An agreement was drawn up providing that in consideration of the sum of twenty-five thousand dollars, to be paid in two installments, the first of $22,808.15, to be paid January 1, 1906, and the second of $2,191.85, to be paid on January 1, 1907, the said plaintiffs acknowledged full receipt and satisfaction of the claim and released the state from further liability, claim, and demand therefor, and that if the payments were not made on said dates, the agreement should be void. For the purpose of inducing the governor to approve said bill and attach his signature thereto so that it would become a law, plaintiffs signed the said agreement and delivered it to the governor for the benefit of the state, and the governor, relying upon the said agreement, and being thereby induced to do so, signed the said bill, whereby it became a law. The plaintiffs, .in pursuance of said agreement, on January 2, 1906, demanded of the controller a warrant for the sum of $22,808.15, due on

p. 501

that day by the act, and thereupon the controller, for the purpose of carrying out said agreement, and relying thereon and also on the representations of the plaintiffs that they would accept the sum of twenty-five thousand dollars in full satisfaction of said claim, issued and delivered the said warrant, so demanded, and the plaintiffs collected the same from the treasury. The controller is ready and willing to issue a warrant for the remainder of $2,191.85, due under the agreement, and has offered the same to the plaintiffs, who refuse to accept it.

A demurrer was sustained to the answer, and judgment passed to the plaintiffs as prayed for. The appellant contends : 1. That the agreement is valid; 2. That the plaintiffs, after thereby inducing the governor to sign the appropriation bill in question, are estopped to demand any greater sum than the agreement provides; and 3. That under the rules applying in mandamus the lower court, in the exercise of a sound discretion, should have refused the writ on the ground that the claim for the excess is unjust and inequitable.

The governor was without power to take or receive the agreement in question and he could not make it a valid contract. While engaged in considering bills which have passed both houses of the legislature and which are presented to him for approval or disapproval, he is acting in a legislative capacity and not as an executive. He is for that purpose a part of the legislative department of the state. (Fowler v. Peirce, 2 Cal. 172 ; People v. Bowen, 21 N. Y. 521 .) As an executive officer, he is forbidden to exercise any legislative power or function except as in the constitution expressly provided. (Art. III.) His powers, as a part of the legislative department, are specifically enumerated in the constitution. When such a bill is presented, “if he approves it, he shall sign it; but if not, he shall return it, with his objections, to the house in which it originated.” If, while the legislature is in session, he neglects to return or sign a bill for ten days, Sundays excepted, it becomes a law without his signature. If the legislature adjourns within the ten days it does not become a law unless, within the designated time after such adjournment, he shall sign and deposit the same in the office of the secretary of state. (Const., art. IV, sec. 16.) When exercising these powers he is a special agent with limited powers, and as in

p. 502

the ease of other special agents, he can act only in the specified mode and can exercise only the granted powers. If he attempts to exercise them in a different mode, or to exercise powers not given, his act will be wholly ineffectual and void for any and every purpose. When he goes beyond the limits of these powers in the attempt to exercise them, his acts, so far as they transcend the powers, are of no force. In Ohio, the senate alone attempted to empower a committee to investigate the city officers of Cincinnati, a matter not germane to the powers or business of the senate. Holding the committee an illegal body the court said: “Whatever inherent power the general assembly in its entirety may possess by virtue of its being the repository of the whole legislative power of the state, we do not think it follows as a conclusion that one of its constituent parts must likewise possess the same inherent powers. It may be conceded that either branch of the legislature has all such powers as are necessarily implied in the express grant of powers to it by the constitution; but under the system' of distribution of powers in the American eonstitutions, and especially under the constitution of Ohio, which is explicit in excluding from the legislative department the exercise of any power which is not delegated in the constitution (art. I, see. 20), the authority of a single branch of the legislature to act separately must be found in express terms or by necessary implication in the constitution. It is clear that the ‘legislative power,’ whatever may be the extent of that power which is conferred upon the general assembly, is not expressly delegated to a part of the general assembly. Nor is it impliedly so delegated. The constitution explicitly grants and defines the separate powers of each branch of the general assembly. . . . The powers of each house are not general and subject only to limitation in the constitution, as is the legislative power of the entire general assembly; but they are specific or enumerated powers. . . . We therefore must look to the enumerated powers alone to determine this question; and it were just as sane to claim that either branch of the legislature might, by itself, enact a law, as to claim that by ‘inherent power’ it could independently exercise any legislative power outside of those specifically designated in the constitution.” (State v. Guilbert, 75 Ohio St. 43 , [ 78 N.

p. 503

The same principles apply when the power of the governor as a legislative instrumentality is involved. He may act only in the prescribed mode, and may exercise only the powers enumerated, or necessarily implied. In the case of a bill containing several items of appropriation of money,' he may approve one or more of them, and object to the others. (Art. IV, sec. 16.) In no other case is he empowered to modify or change the effect of a proposed law, or to do anything concerning it except to approve or disapprove it as a whole. He cannot participate in the discussions or proceedings of either house, except by sending them a veto message when a bill is disapproved. If he approves a proposed bill, his duty requires him to sign it as evidence of such approval. This approval, except in the single instance stated, must be of the bill as a whole, and without qualification. Any attempt on his part to attach to his approval any qualification, or to withhold his consent to a part of the law and give it to other parts, will either be entirely nugatory and ineffectual, and leave the approval absolute, or it will completely nullify the approval and operate as a veto of the whole bill. (Porter v. Hughes, 4 Ariz. 1 , [ 32 Pac. 165 ]; State v. Holder, 76 Miss. 158 , [ 23 South. 643 ].)

His approval makes such a bill a part of the statute law, next to the constitution, the highest manifestation of the will of the people. The governor cannot qualify or change it by any contemporaneous agreement or contract on behalf of the state with persons who are to be benefited by the law, whereby they agree to release to the state a part of such benefit. That would be to permit the governor and the persons concerned to make the law to suit themselves without the concurrence of the legislative houses. His signature, when it is shown to have been attached, is the exclusive and conclusive evidence of his unqualified approval, and the result being law, no evidence, nor the judgment of any court, can be allowed to modify or change its terms or effect, or prevent or impair its complete operative force. The constitution makes no distinction between a law appropriating money to satisfy the claim of a private individual and a law declaring the will of the people on any other subject. Its mandate is unalterably fixed by the words of the bill, made a law by the final act of the governor, and it is unchangeable except by the power which

p. 504

enacted it. “It is a principle in the English law, that an act of Parliament, delivered in clear and intelligible terms, cannot be questioned, or its authority controlled, in any court of justice.” (1 Kent’s Com. 447.) And in the United States, “if there be no constitutional objection to a statute, it is with us as absolute and uncontrollable as laws flowing from the sovereign power in any other form of government. (1 Kent’s Com. 448.)

This law is binding upon all the executive officers of the state. It expressly commands the controller to draw warrants on the treasurer for the sum appropriated. The Political Code also a binding law, directs him to do the same. (See. 433, subd, 17; sec. 672.) These commands of the law are not to be questioned by any official or citizen, or controlled by the courts. Any agreement between the governor and the beneficiaries to the effect that the controller shall draw his warrants for a smaller sum in satisfaction of the whole amount, must necessarily be futile and entirely void for any purpose. The facts alleged could not be proven as the foundation upon which to prevent the operation of the law, or to qualify its. terms in any respect, and they are, in law, irrelevant and immaterial.

The scheme of legislation provided in the constitution does not contemplate nor countenance such proceedings by the-governor, as a mode of qualifying or affecting the operation of a law. If it were permitted the governor would practically have power to adjust claims against the state, a power not given to him by any law and which the constitution plainly vests exclusively in the legislature. (Art. IV, secs. 22, 29, 30, 31, 32, 34.) The appropriation bills enacted into law, instead of being, as the constitution intends, the final declaration of the people as to the disposition of the public funds, would be subject to the negotiations and bargains of the governor with the beneficiaries, not manifested by any public record, and resting upon private agreements in writing, or in parol. We say in parol, because no distinction can be made, if the power exists, between a parol contract of this character and one in writing. The fiscal officers of the state would not be justified in relying on the sanction of the law for the disbursement of state funds; they would be forced to inquire of the governor and pf the beneficiaries to learn whether or not an agreement had been made modifying such laws, or creating an estoppel

p. 505

against the enforcement thereof. In case of disputes, difference, or doubts concerning the terms or execution of such agreements, the officers would have to decide as to the truth of the matter. It is impossible to overestimate the scandals that might arise under such a system, if it were authorized. The constitution expressly declares that no payment of public funds shall be made upon any claim against the state, under any contract made without express authority of law, and that all unauthorized agreements or contracts therefor shall be null and void. (Art. IV, sec. 32.) The entire proceeding was clearly contrary to public policy.

The agreement in question being wholly void, and also against public policy, it cannot be the foundation for an estoppel. Nor can an equitable estoppel be based upon it as-the inducement or consideration which may have led the governor to approve the bill which it purports to modify. The governor was acting in a legislative capacity and his signature was an act in the process of making a law. It is well established that the motives which impelled the legislature, or any component part or member of it, to enact a law, cannot be made a subject of judicial inquiry for the purpose of invalidating, or preventing the full operation of the law. (Harpending v. Haight, 39 Cal. 202 , [ 2 Am. Rep. 432 ]; People v. Bigler, 5 Cal. 26 ; Cooley on Constitutional Limitations, 259; 2 Sutherland on Statutory Construction, 2d ed., sec. 496; 26 Am. & Eng. Ency. of Law, p. 569; People v. Glenn, 100 Cal. 423 , [ 38 Am. St. Rep. 305 , 35 Pac. 302 ].) As the result of this rule and because, as heretofore shown, it is incompetent, all evidence to show what induced the governor to sign the bill would be rejected, and the facts upon which the estoppel is supposed to rest could never be established.

But conceding their existence as alleged, the whole plan was against public policy, and for that reason the facts are not, sufficient to create an estoppel. The authorities fully support this proposition. In People v. Board, 75 N. Y. 42 , the salary of the police surgeon was fixed by law at twenty-two hundred and fifty dollars. The board of police passed a resolution appointing Satterlee to the position at a salary of fifteen hundred dollars. He accepted the appointment, began service-under it, and received part of the salary at the reduced rate. The board had no power to change the salary. It.

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was held that the contract, claimed to have been created by the appointment and acceptance, to serve for the salary mentioned in the resolution, was not binding, and that the transaction did not constitute an estoppel against him to prevent him from enforcing payment at the legal rate. The cases of Kehn v. State, 93 N. Y. 293 ; Clarke v. State, 142 N. Y. 105 , [ 36 N. E. 817 ], and Rettinghouse v. Ashland, 106 Wis. 595 , [ 82 N. W. 555 ], are similar in effect. “Contracts, as a general rule, cannot vest in parties any rights in contravention of law or public policy.” (Shorman v. Lakin, 47 Ark. 354 , [ 1 S. W. 560 ].) “The reason is too obvious to admit of question. The law might, otherwise, at times be evaded, or its policy defeated, by a few strokes of the pen.” (Klenk v. Knoble, 37 Ark. 304 .) “An unlawful agreement cannot defeat a lawful right. A contract which is void as being against public policy cannot create an estoppel.” (Tate v. Building Assoc., 97 Va. 79 , [ 75 Am. St. Rep. 770 , 33 S. E. 383 ].) “Where there is no power or authority vested by law in officers or agents, no void act of theirs can be cured by aid of the doctrine of estoppel.” (Raisch v. San Francisco, 80 Cal. 6 , [ 22 Pac. 22 ]. See, also, Oregonian Ry. Co. v. Oregon R. & N. Co., 10 Sawy. 479 , [ 23 Fed. 232 ]; Sample v. Bank, 5 Sawy. 394 , [Fed. Cas. No. 12660]; Dupas v. Wassell, 1 Dill, 213 , [Fed. Cas. No. 4182]; Webb v. Davis, 37 Ark. 555 ; Langan v. Sankey, 55 Iowa, 54 , [ 7 N. W. 393 ]; Martin v. Zellerbach, 38 Cal. 311 , [ 99 Am. Dec. 365 ]; 2 Pomeroy’s Equity Jurisprudence, sec. 935.) The consequence of holding this agreement effectual as an estoppel would be to make it valid, notwithstanding the entire lack of power in the governor to demand or accept it and despite its infringement of the express terms of the statute. Such contracts could always be set up as an estoppel and the public policy which prohibits them would be defeated. As said by Mr. Justice Nutter, who wrote the opinion in this ease in the district court of appeal, to give the agreement validity in this manner, would “establish a principle at .variance with the spirit of our system of government that would enable governors as a branch of the legislative department to exercise in their approval or disapproval of bills a power withheld by the constitution.”

The rules which govern the courts in suits in mandamus do not authorize the issuance of the writ in the present case.

p. 507

In Wiedwald v. Dodson, 95 Cal. 453 , [ 30 Pac. 580 ], the court declared the well-established doctrine that it is a discretionary writ, and that it need not issue to compel an official act not made imperative by the proper construction of a statute, and contrary to its spirit, although in strict conformity to its literal terms. In Board of Education v. Common Council, 128 Cal. 369 , [ 60 Pac. 976 ], a tax had been levied and had been paid by many of the taxpayers. It was asserted that the wrong board had made the levy and a suit in mandamus was begun to compel a levy by the legal board. The result of another levy would have been that many of the taxpayers would have been compelled to pay the same tax twice. This court refused the writ and quoted as authority Merrill on Mandamus, secs. 71-73, to the effect that, “The writ of mandate will not issue where it will work injustice, or introduce confusion and disorder, or operate harshly, or where it will not promote substantial justice.” This is doubtless a correct statement of the general rule on the subject and in many cases it controls. But it has no real application to the case at bar. The same principles also apply, to and control the doctrine of estoppel in equity. Yet, as we have seen, a contract which is illegal and against public policy will not suffice to create an estoppel. The writ of mandate is discretionary, and frequently the principles of equity are to be resorted to for the determination of the question whether or not it should issue. But these principles cannot be invoked in mandamus, any more than in equity, to enforce agreements which are void in law and which have been made in violation of public policy; which would enable the officers of the state to avoid carrying out the positive mandates of a constitutional statute, and which would sanction and enforce the doctrine that an act of the legislature may be modified by an unauthorized contract executed at the unauthorized demand of the governor.

It has been suggested that the power of a governor who believes that a sum so proposed to be appropriated to a private individual to pay his claim against the state exceeds the amount justly due, is similar, to that of a judge engaged in the trial of a case who believes that the verdict returned by the jury is excessive. The conditions are so variant that there is no real analogy. The governor has no legal power to reduce the amount of the claim. His only course is laid down in

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the constitution. He must sign the bill as it is, or he must withhold his approval and return it with his objections to the house in which it originated. The judge, on the contrary, is, for the time being and for the purposes of that ease, the repository of the whole judicial power of the state. He may render judgment for any amount he sees fit, and, if no further action is taken by the parties, that judgment will be valid and will stand as the measure of their rights. If it does not conform to the verdict of the jury, or to the agreement of the parties made manifest by their consent to a modification and reduction of the verdict, it may, of course, be reversed on appeal. But unless thus reversed, it is conclusive. There is no lack of power, although there may be an erroneous exercise of it. The governor, in the case supposed, is proceeding entirely beyond his official power and his acts are of no more force, so far as the validity and effect of the agreement is concerned, than if they were those of a private citizen. The judge acts within his powers and in accordance with his duty. The purpose of his official existence is that he may do justice between the parties to the litigation. The governor acts outside of his powers, which in this” respect, limit his duty. It is never his duty in such matters to act in excess of his power. The judge does not arbitrarily reduce the verdict and give judgment for a smaller sum. He offers the plaintiff an opportunity to agree to a reduction; if he agrees, the judge has power to render the judgment accordingly; if he refuses, the judge can regularly do nothing more than grant the new trial. In either case he acts strictly within his powers. The conduct of the judge in thus inducing an agreement between the parties and a settlement of the litigation, is not only not illegal nor contrary to public policy, but it is especially encouraged by public policy. It has been sanctioned by the practice of many years in the courts of this country. (See 37 Cent. Dig. cc. 1363, sec. 324.) The power to do this exists at common law and it is therefore authorized by the law of this state. (Pol. Code, sec. 4468.) The governor, if he has such power, could compel the person concerned to yield to his demands and execute any agreement he required, at the peril of losing his entire claim, and such person will have no alterative, except to apply to a succeeding legislature. He has no other appeal. A power so-

Dissent

p. 509

arbitrary cannot justly or reasonably be implied from anything contained in the constitution, or in our system of government. It.is not sanctioned by custom, or even by precedent. It cannot be recognized by the courts until the people confer it in express terms.

A closer analogy would be the case of a judge giving judgment for a certain sum of money and contemporaneously taking an agreement from the plaintiff to accept, in full satisfaction of the judgment, a smaller amount. The defendant, in such a case, might perhaps obtain relief by application under section 473 of the Code of Civil Procedure, or by motion for a new trial, or by suit in equity directly attacking the judgment, provided he began the proper proceeding within the time and in the manner provided by law. But if he suffered that time to pass, he would be bound to pay the judgment in full.. The agreement would form no part of the record, it would not be self-executing, nor could it operate directly upon the judgment of its own force, and it could not be used collaterally to impeach the judgment, or to satisfy it in part. The law has provided no method for the enforcement of an agreement taken by the governor in contravention of the statute he has put in force. The veto or rejection of the entire bill is the only means he has to enforce his objections thereto, and when the bill is signed by him, the case is parallel to that of a judgment when collaterally attacked after the time for direct attack has expired. The agreement could have no effect and proof of it could not be permitted to impair the law or change the judgment.

The judgment is affirmed.

Henshaw, J., Melvin, J., Angellotti, J., Sloss, J., and Lorigan, J., concurred.

I dissent and will file an opinion later.^[1]

* The protracted illness of Chief Justice Beatty has prevented him from preparing this opinion so as to permit of its publication at this time. It will appear in a subsequent volume of the reports.

Cases cited

Board of Education v. Common Council 128 Cal. 369 Cal. 1900-04-07 p. 507

Statutes and regulations cited

Code of Civil Procedure
- § 473 p. 509