                      IN THE SUPREME COURT OF MISSISSIPPI

                                    NO. 2002-CA-01510-SCT

HALEY BARBOUR AND MISSISSIPPI
DEPARTMENT OF CORRECTIONS BY AND ON
BEHALF OF THE STATE OF MISSISSIPPI

v.

DELTA CORRECTIONAL FACILITY
AUTHORITY AND JIM HOOD, ATTORNEY
GENERAL, STATE OF MISSISSIPPI1

DATE OF JUDGMENT:                                9/3/2002
TRIAL JUDGE:                                     HON. WILLIAM G. WILLARD, JR.
COURT FROM WHICH APPEALED:                       LEFLORE COUNTY CHANCERY COURT
ATTORNEYS FOR APPELLANTS:                        JOHN L. MAXEY, II
                                                 CHRISTINA CARROLL
ATTORNEY FOR APPELLEES:                          HAROLD EDWARD PIZZETTA, III
NATURE OF THE CASE:                              CIVIL - OTHER
DISPOSITION:                                     AFFIRMED - 04/22/2004
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

        EN BANC.

        EASLEY, JUSTICE, FOR THE COURT:

                                 STATEMENT OF THE CASE

¶1.     This case involves the interpretation of whether then-Governor Ronnie Musgrove's

veto of a portion of Senate Bill No. 3163 (SB 3163) from the 2002 legislative session, 2002

Miss. Laws ch. 135, amounted to a veto of an appropriation or merely a condition of an


        1
           In January 2004, during the pendency of this appeal, Haley Barbour succeeded Ronnie
Musgrove as Governor of Mississippi, while Jim Hood succeeded Mike Moore as Attorney General
of Mississippi. By operation of M.R.A.P. 43(c), Governor Barbour and Attorney General Hood
were automatically substituted as parties in their official capacities in the place of their predecessors
in office.
appropriation. This Court finds that the partial veto was part of a condition and therefore,

according to the Mississippi Constitution of 1890 and almost 100 years of case law

interpreting our State’s Constitution, the Governor’s partial veto was unconstitutional and

thus a nullity. Also, this Court rejects the invitation or suggestion by counsel in this case to

reconsider and overrule our case law. Mississippi has a long history with these issues, and

many other sister states have looked to our case law for guidance in their own constitutional

interpretations. We find that the principles of our case law are still valid and soundly

reasoned and should not be overruled.

¶2.    On April 9, 2002, Governor Ronnie Musgrove (the Governor) approved Sections 1

and 2 of SB 3163 which addressed funding for prisons and vetoed Section 3. Following the

partial veto, the Speaker of the House of Representatives requested an official opinion from

the Attorney General on the partial veto. The Attorney General issued an opinion on April

11, 2002, which characterized the vetoed language as a condition and not an appropriation.

Thus, in the opinion of the Attorney General, the Governor’s veto of Section 3 was an

improper execution of veto powers pursuant to Miss. Const. art. 4 § 73.

¶3.    On August 2, 2002, Delta Correctional Facility Authority (Delta) filed a motion for

a temporary restraining order (TRO) and a verified complaint in the Chancery Court of

Leflore County to enjoin the Mississippi Department of Corrections (MDOC) and the

Governor from closing the Delta Correctional Facility. Delta contended that the Governor

and MDOC’s termination of its contract for private housing of prisoners, was incorrect

because the Governor’s partial veto was unconstitutional. Delta sought declaratory and



                                               2
injunctive relief to affirm the contract and prohibit MDOC from reducing the number of

inmates at the facility.

¶4.    On August 5, 2002, Chancellor William G. Willard, Jr., granted the TRO which

required the operation of the prison until such time as a hearing could be conducted on the

issues. On August 22, 2002, the Attorney General intervened, without objection from the

parties, to argue the question of constitutional validity of the partial veto. On August 26,

2002, a one-day trial was conducted. On September 3, 2002, the chancellor issued a sixteen

page written opinion which ruled that the partial veto violated Art. 4, § 73 of the Mississippi

Constitution of 1890, relying upon the authority of State v. Holder, 76 Miss. 158, 23 So. 643

(1898) and Fordice v. Byran, 651 So.2d 998 (Miss. 1995). Accordingly, the chancellor

found that SB 3163 was valid law in its entirety.2

¶5.    On September 5, 2002, the Governor and MDOC appealed. Delta did not appeal in

this matter, however, as stated above the Attorney General intervened in the matter, without

objection, and has responded with a brief as the appellee to the Governor’s and MDOC’s

appeal in this matter.

                                              FACTS

¶6.    On October 3, 2001, MDOC and Delta signed a Residential Services Agreement.

Delta was a private prison in Leflore County. The terms of the agreement included that

       2
          In addition to ruling that the Governor’s partial veto was unconstitutional in this instance,
the order also stated that SB 3163 stood as law in its entirety and the appropriation of approximately
$251 million with authority to spend approximately $54 million for fiscal year July 1, 2002 through
June 30, 2003 remained in effect. The order also stated that MDOC’s termination of the contract
with Delta was improper and accordingly remained a binding agreement and in full force and effect.
The chancellor, however, denied any other relief sought by Delta.


                                                  3
Delta would house inmates at the facility for a two year period from October 3, 2001, to

October 3, 2003. The contract stated in part the following:

       Section 2.1 Term. A. The term of this Agreement shall be for two (2) years
       commencing on October 3, 2001 and ending on October 3, 2003. This
       Agreement is subject to annual appropriations as set forth in Section 8.6 of this
       Agreement.

       *        *         *         *         *

       Section 8.6 Termination Due to Unavailability of Funds. The payment of
       money by the Department under any provisions hereto is contingent upon the
       availability of funds appropriated by the Legislature of the State to pay the
       sums pursuant to this Agreement. In the event funds for this Agreement
       become unavailable due to non-appropriation, the State shall have the right to
       terminate this Agreement without penalty or obligation, except for the
       obligation to pay for services already provided.

On April 1, 2002, the House of Representatives and the Senate in the 2002 Regular Session

passed SB 3163. The bill provided for MDOC appropriations for the fiscal year of July 1,

2002 through June 30, 2003.                   The total amount of appropriations for MDOC was

$250,190,746.00 of which no more than $54,726,714.00 could be spent for the funding of

private prisons. SB 3163 states in part:

       An Act making an appropriation for the support and maintenance of the
       Mississippi Department of Corrections and to pay the expenses of counties for
       holding state prisoners in county jails, for fiscal years 2002 and 2003.

       Section 1: The following sum, or so much thereof as may be necessary, is
       hereby appropriated out of any money in the State General Fund not otherwise
       appropriated, for the support and maintenance of the Mississippi Department
       of Corrections for the fiscal year beginning July 1, 2002, and ending June 30,
       2003..........................................................................................$233,734,329.00.

       Section 2: The following sum, or so much thereof as may be necessary, is
       hereby appropriated out of any money in the special fund in the State Treasury
       to the credit of the Mississippi Department of Corrections which is collected
       by or otherwise become available for the purpose of defraying the expenses

                                                             4
       of the Department, for the fiscal year beginning July 1, 2002, and ending June
       30, 2003 ..................................................................................$16,456,417.00.

       Section 3. Of the funds appropriated under the provisions of Sections 1 and
       2, not more than the amounts set forth below shall be expended for the
       respective major objects or purposes of expenditure:

       *         *         *          *

       PRIVATE PRISONS

       FUNDING

       General Funds............................................................................$54,726,714.00.

       Special Funds................................................................................................0.00.

       Total............................................................................................$54,726,714.00.

       *         *         *          *

       Any transfers or escalations shall be made in accordance with the terms,
       conditions and procedures established by law, except that no transfers shall be
       made which reduce funds allocated in Section 3 to Regional Facilities or
       Private Prisons.

Thereafter, on April 9, 2002, the Governor approved Sections 1 and 2 of SB 3163, but struck

or vetoed a portion of Section 3. The Speaker of the House of Representatives requested an

official opinion from the Attorney General on the partial veto. On April 11, 2002, the

Attorney General issued his opinion stating in part:

       The portions of ...SB 3163 which the governor attempted to partially veto do
       not provide for the appropriations, but rather set forth the conditions under
       which the money appropriated elsewhere in the bill may be spent, i.e., for the
       funding of various divisions and programs of the agency.

                 *         *          *         *




                                                               5
       Therefore this office is of the opinion that he governor’s action in attempting
       to veto portions of Section 3 of Senate Bill No. 3163...constitutes an improper
       exercise of his Section 73 veto powers.

       *      *      *      *

       Section I of the Bill makes a separate and distinct appropriation of money
       from the general fund to the Department of Corrections. Section 2 of the bill
       makes an additional separate and distinct appropriation of money from special
       funds to the Department of Corrections. Section 3, on the other hand, does not
       provide for an appropriation, but rather sets forth the conditions under which
       the money appropriated by Sections 1 and 2 may be spent...It states “Of the
       funds appropriated under the provisions of Sections 1 and 2, not more than the
       amounts set forth below shall be expended for the respective major objects of
       expenditure.”

The opinion effectively concluded that the Governor’s veto exceeded his authority pursuant

to Section 73 of the Mississippi Constitution. On August 2, 2002, Delta filed this action in

the Chancery Court of Leflore County.

                                      DISCUSSION

       I.     Whether provisions of a prison appropriations bill (SB 3163, 2002
              Regular Session) allocating a specific amount of money for private
              prison funding and prohibiting that money from being spent on
              anything else are “parts” of the appropriations bill that are
              thereby subject to veto under Section 73 of the Mississippi
              Constitution of 1890?

¶7.    Prior to addressing the issue of whether the Governor vetoed an actual

“appropriation” or a “condition” of an appropriation, a framework of some background

information and general case history of similar issues presented and ruled upon by this Court

is helpful to resolve the question before us today.

       A.     Provisions of the Mississippi Constitution of 1890.




                                             6
¶8.    Article 4 of the Mississippi Constitution of 1890, includes § 69 which concerns the

contents of appropriation bills, § 72 which concerns the process of a governor’s approval or

denial of a bill and the corresponding legislative veto override process, and § 73 which

concerns a governor’s veto power of appropriation bills. Each of these sections are of

importance in the general understanding of the case sub judice. Section 69 states:

       General appropriation bills shall contain only the appropriations to defray the
       ordinary expenses of the executive, legislative, and judicial departments of the
       government; to pay interest on state bonds, and to support the common
       schools. All other appropriations shall be made by separate bills, each
       embracing but one subject. Legislation shall not be engrafted on the
       appropriation bills, but the same may prescribe the conditions on which
       the money may be drawn, and for what purposes paid.

Miss. Const. art. 4, § 69 (emphasis added). Section 72 states:

       Every Bill which shall pass both Houses shall be presented to the Governor
       of the state. If he approve, he shall sign it; but if he does not approve, he shall
       return it, with his objections, to the House in which it originated, which shall
       enter the objections at large upon its Journal, and proceed to reconsider it. If
       after such reconsideration two-thirds ( 2/3 ) of that House shall agree to pass
       the Bill, it shall be sent, with the objections, to the other House, by which,
       likewise, it shall be reconsidered; and if approved by two-thirds ( 2/3 ) of that
       House, it shall become a law; but in all such cases the votes of both Houses
       shall be determined by yeas and nays, and the names of the persons voting for
       and against the Bill shall be entered on the Journal of each House respectively.
       If any Bill shall not be returned by the Governor within five (5) days (Sundays
       excepted) after it has been presented to him, it shall become a law in like
       manner as if he had signed it, unless the Legislature, by adjournment,
       prevented its return, in which case such Bill shall be a law unless the Governor
       shall veto it within fifteen (15) days (Sundays excepted) after it is presented
       to him, and such Bill shall be returned to the Legislature, with his objections,
       within three (3) days after the beginning of the next session of the Legislature.

Id. § 69 (emphasis added). Section 73 states:

       The governor may veto parts of any appropriation bill, and approve parts of
       the same, and the portions approved shall be law.


                                               7
Id. § 73 (emphasis added).

¶9.    Thus, Section 69 provides that legislation cannot be engrafted on to an appropriation

bill, but that the conditions to draw the money and the purpose for which the money will be

paid may be prescribed in the appropriation bill. Section 72 provides, in part, for a

legislative override of every bill and the legislative override process of a two-thirds (2/3)

vote of both Houses to overturn a governor’s veto. On the other hand, Section 73

specifically concerns appropriations bills as opposed to “every bill” and does not provide for

a legislative override process.

       B.     Prior Case Law

¶10.   This Court has ruled on questions concerning whether an “appropriation” or merely

a “condition” of an appropriation was vetoed by a governor in State v. Holder, 76 Miss. 643,

23 So. 643 (1898); Colbert v. State, 86 Miss. 769, 39 So. 65 (1905); and Fordice v. Bryant,

651 So.2d 998 (Miss. 1995).

¶11.   In State v. Holder, decided within 8 years of the Mississippi Constitution of 1890, this

Court found that a governor could not veto a condition of a bill. Holder, 23 So. at 645.

Indeed, this Court provided that every bill has three parts which include “[t]he purpose of

the bill, the sum appropriated for the purpose, and the conditions upon which the

appropriation shall become available.” Holder, 23 So. at 645 (emphasis added). This Court

commented that the result would be “monstrous” if a governor was allowed to make an

appropriation into law yet veto either the purpose or conditions, or both, in the process. Id.

This result would frustrate the legislative intent unless the legislature then passed the purpose



                                               8
or condition by a two-thirds (2/3) vote. Id.       The Holder Court also commented on the

meaning of § 73:

       The true meaning of section 73 is that an appropriation bill made up of several
       parts (that is, distinct appropriations), different, separable, each complete
       without the other, which may be taken from the bill without affecting the
       others, which may be separated into different parts complete in themselves,
       may be approved, and become law in accordance with the legislative will,
       while others of like character may be disapproved, and put before the
       legislature again, dissociated from the other appropriations.

Id. See also Fordice, 651 So.2d at 1002. This Court further stated:

       To allow a single bill, entire, inseparable, relating to one thing, containing
       several provisions, all complementary of each other, and constituting one
       whole, to be picked to pieces, and some of the pieces approved, and others
       vetoed, is to divide the indivisible; to make of one, several; to distort and
       pervert legislative action, and by veto make a two-thirds vote necessary to
       preserve what a majority passed, allowable as to the entire bill, but
       inapplicable to a unit composed of divers complementary parts, the whole
       passed because of each.

Holder, 23 So. at 645. See also Fordice, 651 So.2d at 1002. Likewise in Fordice, this

Court held that then-Governor Fordice impermissibly vetoed a condition prescribed by the

legislature on twenty-seven appropriations bills rather than a specific appropriation. Id at

1002. Fordice, a 1995 case decided almost 100 years after Holder, reiterated the language,

reasoning and law in Holder. In Colbert, a case involving bonds rather than appropriations,

reinforced the authority that the Legislature holds in Mississippi          based upon the

Constitution. Colbert, 39 So. at 66. Specifically, the legislative branch of government has

“control of the purse strings.” Id. This Court further held:

       Indeed, it is the supreme legislative prerogative, indispensable to the
       independence and integrity of the Legislature, and not to be surrendered or
       abridged, save by the Constitution itself, without disturbing the balance of the
       system and endangering the liberties of the people. The right of the Legislature

                                               9
       to control the public treasury, to determine the sources from which the public
       revenues shall be derived and the objects upon which they shall be expended,
       to dictate the time, the manner, and the means both of their collection and
       disbursement, is firmly and inexpugnably established in our political system.

Id.

       C.     The Arguments

¶12.   Both the Governor and the Attorney General outline a general background in which

to understand the history of appropriation bills and the veto powers of the legislative and

executive branch of government. The Attorney General contends that the Legislature placed

a “condition” upon the approximately $251 million appropriated to MDOC. He argues that

Section 1 and 2 of SB 3163 appropriate $251 million in general funds ($233,734,329) and

special funds ($16,456,417) while Section 3 only caps, and does not appropriate, the private

prison spending of not more than approximately $54 million in funds.3 When looking at SB

3163, an eleven-page document, as a whole, Section 3 in and of itself spans approximately

five pages and includes funding for various areas including support, medical services, parole

board, farming operations, private prisons, and regional facilities.

¶13.   The Attorney General states that according to case law, there is a bright line test for

partial vetoes consisting of (1) a veto of a complete appropriation with a purpose, sum, and

conditions, and (2) the partial veto of the item must be distinct and separate and not affect

another portion of the bill. Fordice, 651 So.2d at 1002; Holder, 23 So. at 645. The Attorney

General maintains that Sections 1 and 2 of the bill appropriate funds by stating in part the



       3
        SB 3163 also prohibited MDOC from decreasing the private prison funds by 10% to offset
any emergency in the MDOC budget. See Miss. Code Ann. § 27-104-17(2).

                                             10
same language that “The following sum, or so much thereof as may be necessary, is hereby

appropriated....” See SB 3163. On the other hand, Section 3 of the bill begins “Of the funds

appropriated under the provisions of Section 1 and 2, not more than....” which the Attorney

General maintains is a “condition” placed on the appropriation. Comparing Governor

Fordice’s attempt to exercise a partial veto by striking a provision that placed a cap on the

number of employees of 86 and inserting 84 and Governor Musgrove's striking a provision

that placed a cap of not more than $54 million, the Attorney General concludes that the

struck item is a condition and not an appropriation.

¶14.   Further, the Attorney General contends that the language of Section 3 has none of the

indicia of an appropriations because the no more than $54 million cap is not an appropriation

of a specific or certain sum of money since MDOC is not required to spend $54 million or

any amount of private prisons. The term private prison is not a specific purpose because it

is open ended and does not specify any particular prison nor tie the funds to specific

expenditure. In addition, the Attorney General maintains that the Governor’s contention that

the partial veto of Section 3 resulted in no funds for private prisons, since the $251 million

was reduced by $54 million, runs afoul of case law that any partial veto must not affect any

other non-vetoed portion of a bill. Fordice, 651 So.2d at 1002; Holder, 23 So. at 645.

¶15.   The Governor argues that the chancery court’s interpretation of Section 73 weakens

the checks and balances of the governmental branches given by the Constitution and dilutes

the chief executive officer’s decision making power. In addition, the Governor maintains

that Holder and Fordice are not controlling in the case sub judice. The Governor argues that

in Holder, the vetoed language did not contain a specific amount of money designated for

                                             11
a specific purpose, but rather “requirements” that had to be satisfied before dispersal of the

funds (i.e., conditions). The Governor argues that in Fordice, there was no veto of “an

actual amount of money allocated for a specific purpose.” Here, the Governor contends that

the veto was a classic appropriation because the struck provision allocated “a definite

maximum amount of money to be spent in a specific purpose, and prohibit[ed] the money

from being spent on anything else.” That being, $54 million for private prisons and for

nothing else.

¶16.   Further, the Governor contends that the reasoning used in Holder and Fordice is

based upon a distortion of the language contained in Section 73. Section 73, according to

the Governor, states that a governor “may veto parts of any appropriation bill....”

(emphasis added). Thus, the Governor maintains that the attempt by Holder and Fordice

to distinguish a “distinct appropriation” from a “condition” of an appropriation and to allow

partial veto of the distinct appropriation only, is unsound. Like Section 69 which addresses

the Legislature’s ability to prescribe conditions in appropriation bills, the Governor asserts

that the framers could have included the term “conditions” in Section 73. However, the

Governor argues that Section 73 does not restrict the partial veto of a condition, rather the

section allows a partial veto of “parts of any appropriation bill” which includes a “condition”

or “appropriation."

       D.       The Chancery Court Ruling

¶17.   The chancery court's opinion provided a general history of the Constitution as well

as an examination of Sections 69, 72, and 73 and the prior case law of Holder and Fordice.

Based upon evidence, the Constitution and case law, the chancellor determined that the

                                              12
Governor’s partial veto of SB 3163, Section 3, was unconstitutional and thus a nullity.

According to the chancellor, Sections 1 and 2 reflected appropriations of funds while Section

3 was a condition. The chancellor noted that the Governor did not exercise a partial veto of

Sections 1 or 2, however, his veto message made clear that only language in Section 3 were

subject to his partial veto. The chancellor ruled in part:

       This language in Section 3 as approved clearly sets forth conditions for the use
       of the appropriated funds under Sections 1 and 2 and clearly meets the
       guideline emanating from the Fordice and Holder decisions...Neither of the
       provisions “not approved” by the Governor in Section 3 are an entire, separate
       and distinct appropriation and neither is subject to the partial veto authority
       granted to a governor under Section 73, Article 4 of the 1890 Constitution as
       well as Holder and Fordice.

Comparing other senate bills to SB 3163, the chancellor found that the language in SB 3163

was not unlike these bills in its organization of an appropriation in an initial section of the

bill followed by another section that stated “[o]f the funds appropriated [above], not more

that the amounts set forth below shall be expended for the respective major objects or

purposed of expenditure.” This language is similar of course to the language in SB 3163,

Section 3. The chancellor also determined that “[t]he attempted partial veto if allowed to

stand would effect other parts ot Senate Bill 3163 not vetoed in contradiction of Fordice and

Holder.” Lastly, the chancellor also dismissed the issue of whether applying Fordice and

Holder here would practically mean that the Governor would be prohibited from exercising

a partial veto to any section of SB 3163. See FN 1. In reaching his decision, the chancellor

stated that Section 73 was in place to guard against the “evils of omnibus appropriation

bills.” Holder, 23 So. at 644. The chancellor then directed attention to other sections of the

bill that could be partially vetoed, namely Sections 16 and 17.

                                              13
       E.       Analysis

¶18.   As the highest state court, this Court has the proper authority and responsibility to

interpret the Mississippi Constitution of 1890. This Court has determined constitutional

questions concerning the partial veto powers of a governor in the past in Holder v. State, 23

So. 645, and Fordice v. Bryan, 651 So.2d 998. The Governor provides case authority from

other jurisdictions pertaining to the question of an appropriation verses a condition. While

the parties provide worthwhile case authority, we find that the conclusions of other state

courts applying their constitutional provisions and case law to specific legal issues are not

controlling in Mississippi. The history and evolution of Mississippi constitutional provisions

and case law interpretations of those provisions are unique. This Court applied well-

reasoned principles to the interpretation of constitutional provisions and subsequent

legislation for almost 100 years. This Court finds that these principles and reasoning still

stand today.4

¶19.   The Governor struck a portion of Section 3 of SB 3163, we find that this section was

but a condition of Sections 1 and 2 which actually appropriated the funds by the Legislature.

The Governor made clear that he exercised a partial veto on only a portion of Section 3 and

not any veto on the appropriating Sections 1 or 2. Clearly, Section 69 of the Constitution

allows the Legislature to “prescribe the conditions on which the money may be drawn, and

for what purposes paid.” Miss. Const., Art. 4, § 69. The bill as written, this Court finds,

       4
          An amicus curiae brief was submitted to this Court on behalf of Senator Hob Bryan. The
brief suggests that prior case law is sufficient in deciding this case and that there is no need to
consider overruling the prior cases. However, the brief suggests that the pursuant to § 73 “parts”
includes line items. Further, the brief argues that a governor may veto a line item if the legislature
attempts to tell the executive branch of government exactly how to spend the money.

                                                 14
clearly makes Section 3 “[o]f the funds appropriated under the provisions of Sections 1 and

2, not more than the amounts set forth below...” contingent upon the preceding provisions

of Sections 1 and 2 both of which state “[t]he following sum, or so much thereof as may be

necessary, is hereby appropriated ....” The language of the bill makes Sections 3 reliant upon

Sections 1 and 2 and, in this case, thus, a condition of these sections.

¶20.   Further, this Court finds that the executive branch of government through a

governor’s use of a partial veto may not thwart or sabotage the legislative intent. Holder,

23 So. at 645. Indeed, an “executive” or governor in this instance, “in every republican form

of government, has only a qualified and destructive legislative function, and never creative

legislative power.” Id.   Thus, we find that the Governor’s veto here cannot inhibit the

legislative intent of the bill, nor can his veto create new legislation. Indeed, both Holder

and Fordice warned against allowing a single bill to be picked to pieces resulting in dividing

“the indivisible” and frustrating legislative intent. Id. See also Fordice, 651 So.2d at 1002.

Accordingly, this Court finds that the partial veto of SB 3163 exercised by the Governor was

an unconstitutional veto of a condition of an appropriation bill as written and thus a nullity.

Holder, 23 So. 645.

                                      CONCLUSION

¶21.   For the reasons cited above, this Court finds that the Leflore County Chancery Court

correctly found that the Governor’s partial veto of SB 3163 was unconstitutional and thus

a nullity and that SB 3163 became law in its entirety in the form as passed by the

Legislature. Therefore, the chancery court's judgment is affirmed.

¶22.   AFFIRMED.

                                              15
       SMITH, C.J., CARLSON, GRAVES AND DICKINSON, JJ., CONCUR. COBB,
P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY WALLER,
P.J. DIAZ, J., NOT PARTICIPATING.


       COBB, PRESIDING JUSTICE, DISSENTING:


¶23.   In my view, a logical reading of the plain language of Art. 4, §§ 73 and 69 of the

Mississippi Constitution of 1890 leads to the conclusion that the Governor’s veto of the two

parts of SB 3163 in question, was lawful and proper. Thus, I respectfully dissent.

¶24.   The following steps outline the process by which I reach that conclusion:

       A. There is no dispute that SB 3163 is a general appropriation bill.

       B. Art. 4, § 73 states “The governor may veto parts of any appropriation bill....”

       C. Art. 4, § 69 states (in pertinent part) what general appropriation bills shall

contain: “[g]eneral appropriation bills shall contain only the appropriations to defray the

ordinary expenses of the executive, legislative, and judicial departments of the government.”

Clearly the MDOC is a department of the executive branch. Clearly SB 3163 is the general

appropriation bill for MDOC, providing $233.7 million from the State General Fund and

$16.5 million from the MDOC special fund, totalling more than a $250 million appropriation

to MDOC.

       D. Art. 4, § 69 also states what general appropriate bills shall not contain:

“[l]egislation shall not be engrafted on the appropriation bills . . . .” The language which in

my view violates Section 69 , is found buried in the very last sentence of the five pages

which comprise Section 3 of SB 3163, stating “[a]ny transfers or escalations shall be made

in accordance with the terms, conditions, and procedures established by law, except that no

                                              16
transfers shall be made which reduce funds allocated in Section 3 to Regional Facilities

or Private Prisons.” (emphasis added). This appears to be a classic case of “engrafting” if

ever there was one.

¶25.   In essence this bill, as sent to the Governor, mandated that the MDOC must spend the

entire $54,726,714 to fund private prisons in FY 2003. Period. That’s it. No matter if there

is a serious shortfall of revenue available to fund state government due to inaccurate

estimations of expected revenue, forcing a reduction of the total MDOC funding. No matter

whether there are any prisoners that need to be housed in private prisons. No matter what

other emergency or unforeseen contingency might arise within MDOC which would

necessitate the transfer of funds to or from other major objects of expenditure within the

MDOC appropriation. As correctly stated in the Governor’s veto message of April 9, 2002,

“[t]his special restriction on transfer nullifies general law authorizing agency heads to

transfer up to 15% of their budget between categories as changes occur and needs demand.”

This $54.7 million would have to be spent on private prisons, no matter what.

¶26.   It is easy for the casual or complacent reader to overlook this engrafting, however,

because the up-front and obvious part of Section 3 of SB 3163 which speaks to funding of

private prisons states that “not more than the amounts set forth below shall be expended for

the respective major objects or purposes of expenditure,” but not until page six does it state

that the $54,726,714 must be spent on private prisons.

¶27.   While State v. Holder, 76 Miss. 158, 23 So. 643 (1898) and Fordice v. Bryan, 651

So. 2d 998 (Miss. 1995), cited by the majority, are instructive, they are not controlling in this

case, and in my view, it is not necessary to overrule them in order to reverse the trial court’s

                                               17
ruling. They are quite distinguishable on their facts. It is unfortunate that both these cases

have employed a torturous analysis of the difference in “conditions” and “parts” of

appropriations, which might be expected to be applied in every case involving the partial

veto of an appropriation bill. That is not, however, necessary in the case before us.

¶28.   Section 73 of our Constitution is, in essence, a “check” given to the Governor to

prevent legislative micromanagement of executive branch departments, and thus is an

integral part of the “checks and balances” ingrained in our constitutional system. See

Alexander v. State ex rel. Allain, 441 So. 2d 1329 (Miss. 1983). Contrary to the reasoning

of the chancellor, which is approved by the majority, in my view Section 73 contemplates

that even if an appropriation bill covers “but one subject” as required by Section 69, the

Governor may still veto parts of it. If the Legislature tries to tell the executive branch

exactly how to spend a sum of money through the use of a line item, the Governor has the

right to veto that item. The Governor, however, has to pay a price for the exercise of this

power, i.e., unless the veto is overridden, the money will not be spent at all. This Court’s

established doctrine forbidding the veto of “conditions” means the Governor must veto the

“appropriation”, and not just change the language as was done in Fordice. Otherwise, the

Governor would be writing legislation.

¶29.   The position taken by the Delta Correctional Facility Authority, and adopted by the

chancellor, would render this check on legislative power practically useless. If §§ 1 and 2

of SB 3163 are the only “appropriation” sections, so that a Governor cannot veto a line item

in an appropriation bill, then § 73 is essentially written out of the Constitution. It reduces



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the veto power of the Governor to merely a power to veto the whole bill. That would render

§ 73 superfluous, because § 72 already provides for vetoes of entire bills.

¶30.    On the other hand, the Governor’s alternative position, i.e. that a Governor should be

able to veto any part of a bill (presumably including individual words and phrases) is

untenable. That would allow the Governor to use the veto power to essentially write

legislation that the Legislature did not initially approve and that would become law unless

there is a successful affirmative two-thirds vote of the Legislature to override the veto.

¶31.    The Governor’s veto is consistent with Holder and Fordice. In both those cases, the

forbidden vetoes left the appropriation intact but changed certain conditions on its

expenditure. For that reason, the vetoes were improper. Here, the money [the line item

appropriation to fund private prisons] could not be spent at all [absent an override of the

veto], and thus the veto of the line item was a valid exercise of the Governor’s power under

§ 73.

¶32.    The Legislature may make a line-item appropriation and, if the Governor disputes it,

the Legislature may override his veto by a two-thirds majority. This forces a vote on that

line item, and that line item alone, a process which isolates the disputed provision for

consideration by itself, free from any political maneuvering which might have previously

occurred in drafting the entire bill. These balancing powers would be sufficient to enable

the Legislature to maintain control over the power to make law, to tax, and to spend, and at

the same time to protect the public against untoward legislative maneuvering and

interference with executive powers.



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¶33.   For the foregoing reasons, I conclude that the Governor’s action here was a veto of

a “part” of an “appropriation bill” and thus proper under Section 73. Therefore, I would

reverse and render the chancellor’s judgment.

       WALLER, P.J., JOINS THIS OPINION.




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