City of Sand Springs v. Department of Public Welfare

• Decision Date: 11 March 1980
• Docket Number: No. 53768,53768
• Citation: 1980 OK 36,608 P.2d 1139
• Parties: The CITY OF SAND SPRINGS, a Municipal Corporation, Sand Springs Chamber of Commerce, a corporation, and Clark Walton, Louise W. Rowe, William D. Bigby, Charles P. Garner, Jr., John W. Boyer, Ron E. Limscler, W. J. Filleright, Mrs. W. J. Filleright, Terry L. Jones, Mrs. Terry L. Jones, Patty Benton, Kenneth R. Whitmore, J. N. Powers, Mrs. J. N. Powers, Docker Kosier, Mrs. Docker Kosier, Mrs. Kathleen Foote, H. E. Hardage, Billy D. Hardage, John D. Hardage, Caroline Purser, Bertha DeCou, Bessie Lusk, Grace R. Baker, Billie Bloss, Anna Mae Austin, Katheryn Brooks, Geneva Garoughty, David O. Snyder, C. L. Purser, Ralph Hall, Roger Snodgrass, Peggy Harrison, Jerry R. Claybrook, Rudy L. Vaughn, Carl Rider, Donald Dohlman, David L. Davis, Don Wilson, Bob McFall, James W. Russell, Jack Earls, Al Standrige, M. D. Lay, Anna Harris, William J. Brown, Steven Peters, Kenneth D. Hice, Ron Dobbs, David F. Lundy, Stanley D. Breedlove, D. Edward Hurst, Jack L. Hill, Richard L. Steinberg, Lloyd L. Patterson, Pat Crosier, Orvis Cromson, Michael E. Thompson, Vicki Dustin, Dewey Turney, Doris Allen, Janet L. Wallace, John W. Patterson, Leo G. Vaughn, Jesse M. Rowe, Jim Jackson, L. B. Ellison, Lanny Childress, J. R. Hoggatt, C. E. Browers, Carolyn Byford, Marcia Youngblood, Patricia A. Wattenbarger, Glenda P. Grayson, Margie McClanahan, Harlan S. Pinkerton, Jr., Opal Bigby, Clarence O. Bigby, Walter Rick Grubb, Ron Hufford, Allen Erwin, Larry W. McBride, Dr. James W. Reed, Paula Thurmond, Terry Jones, J. D. England, Anita Steeher, Joe Ganem, Monte R. Box, Kenneth L. Tisher, Individuals, Appellants, v. The DEPARTMENT OF PUBLIC WELFARE, State of Oklahoma, and Lloyd E. Rader, Appellees.
• Court: Oklahoma Supreme Court

Page 1139

608 P.2d 1139

1980 OK 36

The CITY OF SAND SPRINGS, a Municipal Corporation, Sand Springs Chamber of Commerce, a corporation, and Clark Walton, Louise W. Rowe, William D. Bigby, Charles P. Garner Jr., John W. Boyer, Ron E. Limscler, W. J. Filleright, Mrs W. J. Filleright, Terry L. Jones, Mrs. Terry L. Jones, Patty Benton, Kenneth R. Whitmore, J. N. Powers, Mrs. J. N Powers, Docker Kosier, Mrs. Docker Kosier, Mrs. Kathleen Foote, H. E. Hardage, Billy D. Hardage, John D. Hardage Caroline Purser, Bertha DeCou, Bessie Lusk, Grace R. Baker, Billie Bloss, Anna Mae Austin, Katheryn Brooks, Geneva Garoughty, David O. Snyder, C. L. Purser, Ralph Hall, Roger Snodgrass, Peggy Harrison, Jerry R. Claybrook, Rudy L. Vaughn, Carl Rider, Donald Dohlman, David L. Davis, Don Wilson, Bob McFall, James W. Russell, Jack Earls, Al Standrige, M. D. Lay, Anna Harris, William J. Brown, Steven Peters, Kenneth D. Hice, Ron Dobbs, David F. Lundy, Stanley D. Breedlove, D. Edward Hurst, Jack L. Hill, Richard L. Steinberg, Lloyd L. Patterson, Pat Crosier, Orvis Cromson, Michael E. Thompson, Vicki Dustin, Dewey Turney, Doris Allen, Janet L. Wallace, John W. Patterson, Leo G. Vaughn, Jesse M. Rowe, Jim Jackson, L. B. Ellison, Lanny Childress, J. R. Hoggatt, C. E. Browers, Carolyn Byford, Marcia Youngblood, Patricia A. Wattenbarger, Glenda P. Grayson, Margie McClanahan, Harlan S. Pinkerton, Jr., Opal Bigby, Clarence O. Bigby, Walter Rick Grubb, Ron Hufford, Allen Erwin, Larry W. McBride, Dr. James W. Reed, Paula Thurmond, Terry Jones, J. D. England, Anita Steeher, Joe Ganem, Monte R. Box, Kenneth L. Tisher, Individuals, Appellants, v. The DEPARTMENT OF PUBLIC WELFARE, State of Oklahoma, and Lloyd E. Rader, Appellees.

No. 53768.

Supreme Court of Oklahoma.

March 11, 1980.

As Corrected March 19, 1980.

Appeal from the District Court of Oklahoma County; Homer Smith, District Judge.

Appellants appeal denial of permanent injunction sought to prevent building of a permanent incarceration facility for delinquent juveniles, on statutory and constitutional grounds. Trial court's denial affirmed for reasons discussed. AFFIRMED.

C. B. Savage, Stephen R. McNamara, Morehead, Savage, O'Donnell, McNulty & Cleverdon, Tulsa, Erwin D. Phillips, Sand Springs, for appellants.

Thomas H. Tucker, Oklahoma City, for appellees.

HARGRAVE, Justice.

The people of the State of Oklahoma, by referendum vote in 1936, established the Department of Public Welfare, giving it powers such that the usual rules of the doctrine of separation of powers do not obtain to restrict the activities challenged here. The people have spoken; the Constitution, as the organic law of the State, will be obeyed. The provisions of Article XXV of the Oklahoma Constitution render inapplicable the persuasively presented, and usually obtaining, doctrine of separation of governmental powers. Thus the outer limits of the authority of the Department must be measured by the unique provisions of the Oklahoma Constitution, and that measurement dictates the conclusions made herein.

This action was brought by the city of Sand Springs, the Chamber of Commerce of the city of Sand Springs, and numerous other plaintiffs as listed above, seeking to enjoin the construction of a detention facility for "prepsychopathic and presociopathic" juveniles at the present site of the Rader Diagnostic Center in Sand Springs. The petition generating this action alleges the institutional facility constitutes a threat to the health, safety and welfare of plaintiffs, and as such, poses the spectre of a continuing nuisance. The Sand Springs police department is presently overburdened by juvenile escapes, which numbered 150 during the calendar year of 1978, placing an undue burden upon law enforcement in the area. The increase of this problem is alleged to constitute a threat to citizens in the surrounding area. The petition also alleges the grant of the property on which this institution is built is a determinable fee conditioned upon the use of the premises as a "site for the construction and maintenance of a school and hospital for mentally retarded children." The Board of Regents has executed a waiver and consent authorizing the construction of a juvenile diagnostic and evaluation center, and the petition alleges the proposed construction is outside the scope of the limited fee granted and the waiver subsequently given.

The material portion of the petition as presented upon appeal alleges the construction of the facility is an improper use of funds collected under authority of the Oklahoma Sales Tax Code, 68 O.S.1971 § 1301, et seq., by virtue of the fact that there is no provision in the law allowing use of such funds for construction of a detention center for incorrigible delinquent minors. The posture of this action at trial presented the theory that the proposed facility constituted a nuisance. This theory has been abandoned on appeal, as the transcript clearly demonstrates the secure facility is designed to alleviate current conditions constituting a nuisance. Additionally, the petition alleges construction of the facility with funds provided by the Sales Tax Code constitutes a violation of the Constitution of the State of Oklahoma, Article X § 19 because the tax collected for purposes specified by the Legislature is being devoted to a purpose not specified. Article X § 19 states:

Every act enacted by the Legislature, and every ordinance and resolution passed by any county, city, town, or municipal board or local legislative body, levying a tax shall specify distinctly the purpose for which said tax is levied, and no tax levied and collected for one purpose shall ever be devoted to another purpose.

The defendant demurred specially to the count in the petition relating to the use of property at the site of Hissom Memorial Center for purposes other than those allowed in the limited estate granted by the Board of Regents on the ground that the face of the petition disclosed the plaintiff lacked standing to enforce compliance with the determining limitation found in the grant, citing Nelson v. Garrett, 201 Okl. 9, 200 P.2d 420 (1948). This demurrer was sustained and no appeal has been saved therefrom by the petition in error.

In their trial brief, the appellants contend that the establishment of a maximum security structure to house incorrigible juveniles is a rule-making function establishing a fourth class of juveniles under the care of the Department other than the statutorily recognized classes of dependent and neglected, in need of supervision, or delinquent; adding to the last classification incorrigible delinquent. Establishing such a class is asserted to be a rule-making function which can be accomplished validly under the Administrative Procedures Act only by publication of notice and during a legislative session. Appellants, as a basis for such proposition, contend that despite the exception of the Commission generally, 75 O.S.1971 § 301(1)(c) from the Administrative Procedures Act, that agency is required to follow the act's rule-making regulations under the express provisions of § 301(1)(c), applying § 304 of the act to the Department.

Appellants propose that the establishment of a new facility for incarceration of "problem delinquents" by the Department of Public Welfare is an usurpation of legislative authority reserved unto the Legislature and the people of the State of Oklahoma by virtue of Article V, Section 1 of the Oklahoma Constitution. ¹ As stated in the Department's brief: "the Commission is authorized to utilize any institution under its jurisdiction for any program the Commission or Department administers, 56 O.S. § 333, and it is further authorized to make capital expenditures at these institutions 'whenever the Commission finds the same is needed for the proper discharge of its responsibilities.' 56 O.S. § 305." Appellants' position basically is that such a statement on its face bears out their contention that the Department has here assumed legislative powers far beyond those properly delegable. Title 56 O.S.1971 § 305 bears the title:

Rules and regulations Repair of buildings Federal funds Superintendents and other personnel Expenditure of funds.

Subsection (c) provides:

The Commission may provide for the repair, alterations, or remodeling of any existing building at the above-named institutions, or at any other institution under its jurisdiction, necessary for the proper and efficient administration and to conserve the properties and the State's investment in such properties. Funds available for operating expenses and revolving funds of institutions under the control of the Commission may be used for such purposes, and may also be expended for land and other capital outlay, whenever the Commission finds the same is needed for the proper discharge of its responsibilities. . . .

This Court has previously equated the term "capital expenditure" with "capital outlay." Osage County Excise Board v. Missouri-Kansas-Texas R. Co., 340 P.2d 217 (Okl.1959). The language of the statute, foreshadowed by the title of the section, clearly authorizes the Commission to construct a capital improvement whenever the Commission finds the improvement necessary for the discharge of its responsibilities imposed by statute. While it is "well settled" in this jurisdiction that the power to determine the policy of the law is primarily legislative and cannot be delegated, the power to make rules of a subordinate character in order to carry out the policy legislatively determined and to apply that policy to varying factual conditions, although sharing the attributes of legislative exercise of power, is in its major sense an administrative duty which may be delegated properly to an administrative body by the Legislature. State ex rel. Hart v. Parham, 412 P.2d 142, (Okl.1966); Associated Industries v. Industrial Welfare Commission, 185 Okl. 177, 90 P.2d 899 (1939). Otherwise stated the...