Opinion

Elmhurst Convalescent Center, Inc. v. Bates

  • 46 Ohio App. 2d 206
  • 74 Ohio Op. 2d 370
  • 348 N.E.2d 151
  • 1975 Ohio App. LEXIS 5847
Court
Ohio Court of Appeals
Filed
Oct 30, 1975
Status
Published
Author
Whiteside
On the bench
McOormac, Whiteside, Neilly
Cited by
1 cases
Authority
More cited than 43.2%

The opinion

Whiteside, J.,

concurring.. This cáse'involves a determination of the extent of the governor’s item veto power with respect to bills making an appropriation of money. The

*213

General Assembly has traditionally- included some, substantive provisions in appropriation bills. In recent years, the number and extent of substantive provisions in appropriation bills have increased. ■ .

There is of course a limit of the extent to wbicb the •General Assembly can go in including -substantive provisions in appropriation bills in light of the requirement of. Section 15(D), Article II, Ohio Constitution, that “no bill, contain more than one subject.”

Although the Governor has no item veto with respect to substantive provisions included in a bill not making ah' appropriation of money, where the General Assembly elects, to include substantive provisions in a bill making an appro-, priation of money, the Governor’s, veto power.■ extends to the items of the substantive provisions as well as to- the' items making appropriations. The., item veto, pursuant to Section 16, Article II, Ohio Constitution, extends to

“any

item or items in

any

bill making an appropriation - of. money,” not merely to items of appropriation. (Emphasis added.)

An “item” subject to an item veto need not necessarily be a complete paragraph or even a complete sentence. Under proper circumstances, a single clause, a single phrase, or even a single word may constitute an. “item” •subject to the item veto. This is necessarily true, for otherwise the Genéral Assembly by clever structuring of language •of a provision could deny the.item véto power to the gov-' •ernor which would exist if separate items so cleverly connected were- separately stated. As indicated in

State, ex rel. Brown, v. Ferguson

(1972), 32 Ohio St. 2d 245 , the. General Assembly cannot by any device deny the governor'' the power of item veto of

any

item in a bill making an appropriation of money.

Although the Supreme Court in

Brown

indicated that an item is something separate and distinct in subject and purpose from other provisions in the bill, “subject” and “purpose” here have a narrow import, since a bill may contain only one “subject” in any event.

The Supreme Court in

Brown

also indicated that the

*214

test of whether language in a bill constitutes an item subject to veto is whether both the language vetoed and the remainder of the provisions from which such language is severed can each stand alone, that is whether they are sever-able so that each can stand independently of the other.

This determination, of necessity, must be, made in the first instance by the Governor. The General Assembly, by the requisite three-fifths vote, may override the veto either because it feels the item not to be properly severable or because it feels the item should be enacted in any event. Once the Governor has made his determination, and the legislative process is complete, and the veto is allowed to stand, the courts should exercise great caution in “second-guessing” the governor as to whether the language vetoed constitutes a separate item subject to veto.

It is only where the governor has abused his discretion and the language vetoed

clearly

does not constitute a separate item subject to item veto that the courts should interfere in the legislative process and declare language vetoed to be law notwithstanding the attempted veto. In this ease, we must give great weight to Governor Gilligan’s determination that the vetoed language was subject to the item veto. In cases of doubt or uncertainty, the governor’s determination should be allowed to stand.

Even accepting plaintiffs’ contentions, the most that can be said is that it is unclear whether the language vetoed by Governor Gilligan was properly subject to the item veto. In such, a situation, this court must defer to Governor Gilligan’s determination. However, as expressed in the majority opinion, in this case, we conclude that Governor Gilligan correctly determined that the language vetoed was subject to the item veto.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

A word about cookies

We need a few to keep you signed in and the library working. The rest help us see which pages people use and where they get stuck. They stay off unless you say yes.