Reardon v. Riley

The petitioner as director of the department of industrial relations of this state, seeks the issuance of a writ of mandamus directing and commanding the respond

Respondent Stockburger, as director of finance, admits all of the allegations of the petition and evinces a willingness to approve the proposed fiscal year budget but his desire so to do is frustrated by reason of the failure and refusal of the respondent Riley, as controller, to set up on his books more than $1,277,185 to cover the expenditures of the department of industrial relations for the designated biennium, which amount is $120,000 less than that alleged by petitioner to have been appropriated for the department.

The controversy as to the disputed $120,000 had its inception in the following facts. It appears that pursuant to the provisions of section 34 of article IV of the Constitution, the governor submitted to the fifty-second legislature a budget, accompanied by an appropriation bill, covering the proposed biennium expenditures, among others, of the department of industrial relations in the sum of $1,297,185. As finally passed by the legislature and submitted to the governor for consideration, the budget or appropriation bill, so far as the department of industrial relations is concerned, was amended by increasing its appropriation to $1,625,185, it being specifically provided that $328,000 and $20,000, respectively, of the sum so appropriated should be expended as therein designated. Pursuant to the power vested in him by sections 16 and 34 of article IV of the Constitution, the governor signed the appropriation bill and at the time of signing appended thereto a statement of the items therein contained to which he objected, together with his reasons therefor. In paragraph “2” of his statement of objections the governor, with reference to the item for the department of industrial relations (No. 78 in the appropriation bill) stated, “I object to and eliminate” the specific and included items of $328,000 and $20,000 “for the reason that I consider the

Three possible results suggest themselves, viz.:

1. That the action of the governor was a nullity, leaving all three items ($328,000, $20,000 and $1,625,185) as they were before the governor attempted to veto the first two and reduce the third by a lesser amount than the aggregate of the “eliminated” items; or

2. That the action of the governor reduced the sum of $1,625,185 originally fixed by the legislature, by the aggregate of the “eliminated” items ($328,000 plus $20,000 or $348,-000), leaving the sum of $1,277,185—the total amount claimed by the respondent controller to be -available to the department of industrial relations; or

3. That the action of the governor “eliminated” the specific and included items of $328,000 and $20,000 but did not affect the general appropriation of $1,625,185 for said department, which latter item was affected only by the express reduction thereof by the governor to $1,397,185—the amount claimed by petitioner for his department and conceded by the respondent director of finance as being available therefor.

We are not inclined to accept the second result above indicated, and contended for by the respondent controller, as the applicable solution of this proceeding. In support thereof he contends that by the “elimination” of the specific and included items of $328,000 and $20,000, respectively, the governor ipso facto reduced the general or gross appropriation to the department of industrial relations by the aggregate of said “eliminated” specific items, or to $1,277,185, and that the governor could not then increase the “reduced” general appropriation by $120,000 (the amount here in dispute), or to $1,397,185, without prior legislative action. The result contended for by the respondent controller is required neither by law nor reason. It stultifies and improperly restricts the power vested in the governor by sections 16 and 34 of the Constitution, which sections authorize the governor to “reduce or eliminate any one or more items of appropriation of money while approving other portions of the bill . . . ”. In other words, the second result above suggested, and here contended for by the respondent controller, would permit the governor to “reduce or eliminate” the specific and included items of further “appropriation” but would preclude him from “approving”, as authorized, such other portion of the bill as contained the general “appropriation” for the department and would likewise preclude the governor from “reducing”, as was his obvious intention here, the general appropriation by an amount less than the aggregate of the “eliminated” specific and included items. Such a result is not to be favored. As declared in section 3541 of the Civil Code, “an interpretation which gives effect is preferred to one which makes void”.

On the other hand, the third result above suggested gives full effect to the intent of the legislature without unduly curtailing the power granted to the governor by the cited

A somewhat analogous result was reached with respect to special fund moneys, as distinguished from general fund moneys with which we are here concerned, when in Board of Fish and Game Com. v. Riley, 194 Cal. 37 , 43—49 [ 227 Pac. 775 ], it was held, in effect, that the reduction by the governor of a specific and included budget appropriation for the fish and game commission did not abrogate or affect the continuing appropriation to the commission of all the moneys deposited in the fish and game fund and that the subsequent authorization of an expenditure greater than that provided for in the specific, included and reduced budget appropriation did not encroach upon the legislative function “since its effect is not to make an appropriation, but is merely to render available, to the extent of its allowance, an appropriation already made”. Such, by analogy, is our reasoning and conclusion herein.

It appears from the brief of the respondent director of finance, and is conceded by the respondent controller, that the predecessor in office of the respondent controller, under analogous circumstances, caused by the upholding in Wood v. Riley, supra, of the governor’s veto of a specific and included item of appropriation of 1 per cent of the fund generally appropriated by the Budget Act of 1923 for teachers’ colleges, applied to the situation a practical construction, consistent with our reasoning and conclusion herein, and set up on his books the entire 100 per cent of the appropriation notwithstanding the veto of the 1 per cent.

In conclusion, we do not find it necessary or proper to here concern ourselves with items of appropriation other than those made to .the department of industrial relations, herein represented by its petitioning director. Such other items, though perhaps presenting somewhat similar problems, are not within the issues of this proceeding and some of the par

Let peremptory writ issue as prayed.

Shenk, J., Curtis, J., Langdon, J., Seawell, J., Edmonds, J., and Houser, J., concurred.

Rehearing denied. Langdon, J., and Shenk, J., voted for a rehearing.