Bailey v. State Bd. of Public Affairs

• Decision Date: 14 November 1944
• Docket Number: 31677.
• Citation: Bailey v. State Bd. of Public Affairs, 153 P.2d 235, 1944 OK 301, 194 Okla. 495 (Okla. 1944)
• Parties: BAILEY v. STATE BOARD OF PUBLIC AFFAIRS et al.
• Court: Oklahoma Supreme Court

153 P.2d 235

194 Okla. 495, 1944 OK 301

BAILEY v. STATE BOARD OF PUBLIC AFFAIRS et al.

No. 31677.

Supreme Court of Oklahoma

November 14, 1944

As Corrected Jan. 4, 1945.

Syllabus by the Court.

1. Senate Bills No. 2 and No. 184 of the 19th Oklahoma Legislature, S.L.1943, pages 302 and 235, 74 O.S.Supp.1943 §§ 73.1, 73.2, are in pari materia and are to be construed and applied together.

2. The theory of separation of the three powers of government (legislative, executive and judicial) does not mean that the distinctions between the three can be carried out with precision, but there may be a certain degree of blending of the three powers. The true meaning is that the whole power of one department may not be exercised by the same hands which possess the whole power of either of the other departments.

3. The Legislature may delegate to other departments of the government some powers which it may rightfully exercise.

4. While the Legislature may not delegate to others the power to make a law, which involves a discretion as to what it shall be, it may confer upon executive officers discretion as to its execution, to be exercised under and in pursuance of the law.

5. The Legislature has a wide discretion as to the minuteness with which the policy and standard may be expressed in a statute which confers upon executive officers discretion in carrying out the statute, and the courts should be reluctant to interfere with such discretion.

6. The courts will not declare a statute to be unconstitutional unless its invalidity appears beyond a reasonable doubt.

7. Senate Bills No. 2 and 184 of the 19th Oklahoma Legislature S.L.1943, pages 302 and 235, 74 O.S.Supp.1943, §§ 73.1, 73.2 are not violative of Section 1 of Article 4, Section 1 of Article 5, Section 19 of Article 10, or Article 21, of the Oklahoma Constitution.

8. A statute that is in conflict with, but which does not mention a prior statute, has the effect of repealing, by implication the prior statute to the extent of the conflict.

Original proceeding in the Supreme Court by Cecil C. Bailey, a taxpayer, against the State Board of Public Affairs, composed of Virgil Browne, Mrs. Maude Calvert and H. A. Hewett, to prevent the Board from carrying out certain acts under authority of 74 O.S.Supp.1943 §§ 73.1. 73.2.

Plaintiff's prayer for relief denied.

GIBSON, V. C.J., OSBORN, BAYLESS, and DAVISON, JJ., dissenting.

Walter L. Gray, of Oklahoma City, and Bill Ginder and J. Wilford Hill, both of Cherokee, for plaintiff in error.

Randell S. Cobb, Atty. Gen., and S. H. King, Asst. Atty. Gen., for defendants in error.

HURST Justice.

This is an original proceeding in this court to prevent the State Board of Public Affairs from carrying out certain acts under authority of Senate Bill No. 184 of the 19th Legislature, S.L.1943 page 235, 74 O.S.Supp.1943 §§ 73.1, 73.2.

The State Board of Public Affairs is charged with the management of the penal and eleemosynary institutions of the state. In order to relieve the congestion in some of said institutions the 19th Legislature passed Senate Bill 184, Section 1 of which is as follows: "Section 1. Due to the great number of patients and inmates in some of the penal and eleemosynary institutions of the State and in order to relieve such congestion and to provide a better and more economical administration of the Institutions under the jurisdiction and control of the State Board of Public Affairs, said Board with the approval of the Governor is hereby authorized to transfer either in whole or in part the functions, inmates, personnel and funds from one institution to another institution under its control, to consolidate institutions, or close them entirely, if in the Board's judgment it is warranted. The State Board of Public Affairs with the approval of the Governor shall have full and complete authority to use its discretion in making any shifts, changes, consolidation, transfers or suspensions which appear economically or otherwise advisable to the Board. In transferring funds from one institution to another, the State Board of Public Affairs shall take into consideration the needs of the respective institutions involved in the transfer, and the amount of funds available for both institutions so that both can operate efficiently and to the best interests of the inmates of said institutions. The transfer of funds shall be by resolution of the State Board of Public Affairs approved by the Governor, and the transfer shall not become effective until a duly authenticated copy of the resolution has been filed with the State Auditor. The provisions of this Act shall not be construed to limit or restrict the authority of the State Board of Public Affairs to transfer individual inmates from one institution to another under existing law. In every case of a transfer of inmates the State Board of Public Affairs shall cause a permanent record to be kept of the transfer of such inmates at both of the institutions involved in the transfer."

Senate Bill No. 2 of the Nineteenth Legislature, S.L.1943 page 302, makes appropriations for said institutions for the two fiscal years ending June 30, 1944, and June 30, 1945. Section 1 of that Act, 74 O.S.Supp.1943, § 73.1, contains a clause practically identical with Section 1 of Senate Bill 184, above. Each Act contains a severability clause. The two laws are in pari materia and are to be construed together. State ex rel. Marland v. Phillips Pet. Co., 189 Okl. 629, 118 P.2d 621.

On November 22, 1943, the State Board of Public Affairs passed a resolution, which was approved by the Governor on the same day, with the view of carrying out the policy declared by Senate Bill 184, which, omitting the first two paragraphs reciting the substance of the law, is as follows:

"Whereas, in order to relieve congestion in certain of said institutions and to provide a more economical administration thereof, the State Board of Public Affairs finds that it is advisable and necessary to consolidate certain institutions and to transfer the functions and funds and certain inmates and patients from one institution to another.

Now, therefore, be it resolved that the following orders relating to the consolidation and transfer of certain institutions under the jurisdiction of the State Board of Public Affairs be made:

1. The West Oklahoma Home for White Children, located near Helena, Oklahoma, is hereby consolidated with the Whitaker State Orphan Home, located near Pryor, Oklahoma, and all of the inmates of said first institution are hereby ordered to be transferred to said second institution. At this particular time there shall be no transfer of funds.

2. After the removal of the inmates in the West Oklahoma Home for White Children to the Whitaker State Orphan Home, the State Training School for White Boys, located near Pauls Valley, Oklahoma, is hereby transferred, including inmates, personnel and funds, from said institution to what is now the West Oklahoma Home for White Children at Helena.

3. After the removal of the inmates, personnel and funds from the State Training School for White Boys at Pauls Valley to the West Oklahoma Home for White Children at Helena, all inmates of the institutions set forth below suffering from epilepsy are hereby transferred to what is now the State Training School for White Boys near Pauls Valley, Oklahoma:

Central Oklahoma State Hospital at Norman;

Eastern Oklahoma Hospital at Vinita;

Western Oklahoma Hospital at Supply;

Northern Oklahoma Hospital at Enid.

In order to support and maintain the epileptic patients hereby ordered transferred to the Pauls Valley institution funds from the appropriations made for the Central Oklahoma State Hospital, the Eastern Oklahoma Hospital, and the Western Oklahoma Hospital, by subsequent orders of this Board shall be transferred for the purpose of supporting and maintaining said epileptic patients at the Pauls Valley institution.

4. The expense of making these transfers and consolidation, and the removal of the inmates of said institutions as herein ordered, shall be paid from funds allocated to this Board out of the Governor's Contingency and Emergency Funds under the provisions of Senate Bill No. 197, of the Nineteenth Legislature, page 328, Oklahoma Session Laws 1943.

5. A permanent record shall be kept at the institutions named in the above orders of the inmates involved in the consolidation and transfers herein provided for, such record to be kept of such inmates at both of the institutions involved in the transfer of each particular inmate."

The purpose of this action is to prevent the State Board of Public Affairs from carrying out said resolution on the ground that Senate Bill 184 is unconstitutional, and the acts about to be carried out under the resolution are unauthorized and would be void. Plaintiff sues as a taxpayer. He urges several reasons why the Act is unconstitutional.

1. Plaintiff first contends that Senate Bill 184 is violative of that part of Section 19, Article 10, of the state constitution, which provides that "no tax levied and collected for one purpose shall ever be devoted to another purpose."

The moneys appropriated by Senate Bill No. 2 are appropriated out of the general revenue fund of the State, the public building fund and the revolving fund of certain of said institutions. And the money to be used in making the transfers is to come from the "Governor's Contingency and Emergency Fund" of $900,000, which is appropriated out of the general revenue fund. S.L.1943, page 328. The general revenue fund comes from many sources and may ordinarily be used to finance any proper state function, including the care of the inmates in the penal and eleemosynary institutions.

The plaintiff does not point out where any of the...