63 Op. Att'y Gen. 313 (1974)
 
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Wisconsin Attorney General Opinions

21 August 1974.

Governor;
Governor's veto of inseparable part of
Section 3 of Senate Bill 598 constitutes
an objection to all of Section 3 within the
meaning of Article V, Section 10, Wisconsin
Constitution, and the entire Section 3 is
returned to the legislature for
reconsideration.

Article V, Section 10, Wisconsin
Constitution, discussed.

ERNEST C. KEPPLER, Chairman,
Committee on Senate Organization

Section 3 of Senate Bill 598 (Chapter 298,
Laws of 1973) was vetoed in part by the
Governor.

Section 3, as passed by the
legislature, provided:

Section 3.
20.370(2)(vr) of the statutes
is created to read:

20.370(2)(vr) Snowmobile law enforcement.

From interest earnings on snowmobile
registration, the amounts in the
schedule for departmental law
enforcement under Chapter 350
not to exceed $130,000 or the
amount of interest earned in
any fiscal year from snowmobile
registration fees, whichever is less.

As partially vetoed, Section 3 provides:

20.370(2)(vr) Snowmobile law enforcement.

[From interest earnings on snowmobile
registration][F], the amounts in the
schedule for departmental law
enforcement under Chapter 350
not to exceed $130,000 [or
the amount of interest][F]
earned in any fiscal year
from snowmobile registration fees,
[whichever is less][F].

TEXT CONTAINED WITHIN THE BRACKETS WAS
STRICKEN THROUGH IN THE ORIGINAL TEXT.

You ask, on behalf of the Senate Committee on
Organization, my opinion of the effect of
such partial veto, i.e., does it constitute
an objection to all of Section 3, requiring
the return of Section 3 in its entirety to
the legislature for reconsideration.

The Governor's authority to veto parts of an
appropriation bill is found in Article V,
Section 10, Wisconsin Constitution,
set out in part below:

   . . . Appropriation bills may be
   approved in whole or in part by the
   governor, and the part approved shall
   become law, and the part objected to
   shall be returned in the same manner as
   provided for other bills. . . .

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The requirements for a valid partial
veto were set out as follows in

State ex rel. Finnegan v. Dammann (1936),
220 Wis. 143, 146,
264 N.W. 622:

In the previous case of
State ex rel. Wisconsin Tel. Co. v.
Henry, 218 Wis. 302, 260 N.W. 486, this
court for the first time had occasion to
consider the scope of the 1930
constitutional amendment.

It was there held:

(1) That the 1930 amendment permits
    the veto by the governor of any
    separable part of an
    appropriation bill; and

(2) that this power to partially veto
    exists, although the part vetoed
    does not deal with appropriations.
    . . .

Because Section 3 contains an appropriation,
only one question remains to be answered:
Is that portion vetoed a "separable part"?

In

State ex rel. Wisconsin Tel v. Henry (1935),
218 Wis. 302, 260 N.W. 486, an extensive
discussion of what constitutes a "separable
part" was conducted by the court.

In that discussion, set out in part below,
the court made it clear that a "separable
part" did not include contingencies or
conditions placed on the appropriation by the
legislature:

We have not found any reported cases
construing the similar constitutional
provision in Mississippi, Kentucky,
New Mexico, and North Dakota, with the
exception of State ex rel. Teachers &
Officers v. Holder, supra, and Miller v.
Walley, 122 Miss. 521, 84 So. 466.

As in those cases, the parts of a bill
which were disapproved by the executive
prescribed conditions upon which the
payment of the appropriation was
expressly made contingent, so that the
parts vetoed were clearly integral and
inseparable parts of the appropriation
made in the bill, . . . what constitutes
a "part" of an appropriation bill, and
is therefore subject to a partial veto
under Section 10, Article V, Wisconsin
constitution, is not difficult to
ascertain in this case, if, as stated,
the provisions in the disapproved parts
of Bill No. 48 A were not provisos or
conditions upon which the appropriation
in the approved portions was made
dependent or contingent.

pp. 312-313-314.

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Section 3, as passed by the legislature,
would appropriate for enforcement purposes
the lesser of $130,000 or the amount of
interest earned from snowmobile
registration fees.

The effect of the veto would be to
appropriate, in any year, $130,000 for
enforcement regardless of the amount of
interest earned on registration fees,
assuming those fees total more than $130,000.

Thus, a contingency or condition on the
amount appropriated in any year was
removed by the partial veto.

Therefore, such a partial veto
was not authorized by Article V, Section 10,
Wisconsin Constitution, and was invalid.

My conclusion of invalidity is supported by
the purpose of Article V, Section 10,
Wisconsin Constitution, as described in

State ex rel. Martin v. Zimmerman (1940),
233 Wis. 442, 447-448,
289 N.W. 662:

. . Its purpose was to prevent, if
possible, the adoption of omnibus
appropriation bills, logrolling, the
practice of jumbling together in one act
inconsistent subjects in order to force
a passage by uniting minorities with
different interests when the particular
provisions could not pass on their
separate merits, with riders of
objectionable legislation attached to
general appropriation bills in order to
force the governor to veto the entire
bill and thus stop the wheels of
government or approve the obnoxious act.
Very definite evils were inherent in the
lawmaking processes in connection with
appropriation measures.

Both the legislature and the people
deemed it advisable to confer power upon
the governor to approve appropriation
bills in whole or in part, . . .

The probable effect of the partial veto of
Section 3 would be to increase the amount
appropriated in any year contrary to the
purpose of a partial veto, i.e., the
reduction or elimination of
individual appropriations.

The effect of an invalid partial veto was
considered by the Wisconsin Supreme Court in
only one case, State ex rel. Finnegan v.
Dammann (1936), 220 Wis. 143, 264 N.W. 662.

The result of that consideration was as
follows at pages 149-150:

The next question is as to the
effect of the partial veto.

We have been favored with able argument
to the effect that the veto being a
nullity, the approval of the governor
must be considered as unqualified.

We are satisfied that this
contention is not sound.

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It is conceded by both plaintiff and
defendant that in order to become a law
this act required the governor's approval.

Both sound principle and the decisions
bearing upon the question establish that
whether or not an invalid partial veto
results in an act being in force or wholly
inoperative, depends entirely upon whether
the act could become a law without the
governor's sanction and approval, or
whether it required this approval
before it could become law.

In the former case, the partial veto being
ineffective as a veto and no approval
being required, the law is in force.

In the latter case, an express approval
of the law as enacted being required
and only a qualified approval given,
the act wholly fails.

Nowell v. Harrington,
122 Md. 487,
89 Atl. 1098;

Wood v. State Administrative Board,
255 Mich. 220,
238 N.W. 16;

Mills v. Porter,
69 Mont. 325,
222 Pac. 428,
35 A.L.R. 592;

State ex rel. Jamison v. Forsyth,
21 Wyo. 359,
133 Pac. 521;

State ex rel. Teachers & Officers of Ind and

College v. Holder,
76 Miss. 158,
23 So. 643;

Regents of State Univ. v. Trapp,
28 Okla. 83,
113 Pac. 910.

However invalid and nugatory the veto
may have been, it did in fact operate to
destroy the unequivocal character of the
governor's approval.

This question is not to be answered by
conjecture or speculation whether the
governor would or would not have
signed the act had he correctly
determined the extent of his
powers partially to veto it.

The question is whether, as a matter
of fact, the bill as enacted had
the governor's approval.

The partial veto, however invalid,
indicates that it did not.

Since the act required the approval of
the governor, and did not receive it,
the conclusion is inevitable that Bill
No. 312, S., never became a law and
mandamus does not lie to compel its
publication by the defendant.

In State ex rel. Finnegan v. Dammann, the
partial veto was invalid because the bill
was not an appropriation bill and therefore
not subject to partial veto.

The Governor could only approve or
veto the bill in its entirety.

The court, as indicated by the quoted
passage, would not speculate on the
Governor's response had he realized
that a veto in part was not possible and
therefore held the entire bill invalid.

In contrast, Senate Bill 598 is a
proper subject for partial veto.

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The Governor approved all of the bill except
a portion of Section 3, and that approval in
part would have been proper had the Governor

correctly determined the extent of his
powers partially to veto it.

Therefore, we need not speculate as to the
Governor's intent with respect to those
parts of the bill previously approved.

They became law as Article V, Section 10,
Wisconsin Constitution, provides:

..the part approved shall become law..

However, the ascertaining of the
Governor's reaction to Section 3

had he correctly determined the extent
of his powers partially to veto it

would require speculation, and thus, I must
conclude that the Governor objected to all of
Section 3. Therefore, Section 3 must

be returned in the same manner as
provided for other bills

for legislative reconsideration.

RWW:JEA

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