Draper v. State
| Decision Date | 22 July 1980 |
| Docket Number | No. 55144,55144 |
| Citation | 621 P.2d 1142,1980 OK 117 |
| Parties | Daniel D. DRAPER, Jr., Gene C. Howard, Don Davis and William J. Wiseman, Jr., Petitioners, v. STATE of Oklahoma and Jan Eric Cartwright, As Attorney General Thereof, Respondent, William F. Poulos, Charles R. Ford, Bill Lancaster, George Camp, Charles Cleveland, Helen Arnold, Gene D. Combs, James D. Holt, Frank Shurden, T. W. Bill Holaday and Frank Davis, Amicus Curiae. |
| Court | Oklahoma Supreme Court |
Petitioners requested the assumption of original jurisdiction and a motion to stay the effectiveness of the Attorney General's Opinions Nos. 79-311 and 79-313B. The Court assumed original jurisdiction and entered the Motion to Stay April 30, 1980. The petitioners also sought writs of prohibition and mandamus to preclude the issuance of further analogous opinions by the Attorney General or, in the alternative, to mandate the withdrawal of the contested opinions.
ORIGINAL JURISDICTION ASSUMED. ATTORNEY GENERAL'S OPINIONS NOS. 79-311 and 79-313B HELD TO BE INVALID AND OF NO EFFECT.
WRIT OF MANDAMUS AND WRIT OF PROHIBITION DENIED.
Womack, Draper, Deatherage & Patten by Cleta Deatherage, Norman, for petitioners.
Jan Eric Cartwright, Atty. Gen., John F. Percival, Asst. Atty. Gen., Oklahoma City, for respondent.
William D. Graves, Oklahoma City, for amicus curiae.
The petitioners, Daniel D. Draper, Jr., Gene C. Howard, Don Davis, and William J. Wiseman, Jr., members of the Oklahoma Legislature, filed an application to assume original jurisdiction, a motion to stay, and petitions for a writ of mandamus and prohibition. The petitioners request that the effectiveness of the Attorney General's Opinions, Nos. 79-311 and 79-313B be stayed; and that the Attorney General be prohibited from the issuance of similar rulings or, in the alternative, an order be issued by this Court which would require the Attorney General to withdraw the opinions.
After the adjournment of the first session of the Thirty-Seventh Legislature, two legislators posed questions concerning the constitutionality of the appropriations bill, HB 1140. 1 This bill contains appropriations to the State Board of Education for the funding of common schools. The Attorney General issued virtually identical Opinions Nos. 79-311 and 79-313B on April 15, 1980. Based on his interpretation of the Oklahoma Constitution art. 5, §§ 56, 57, 2 the Attorney General determined that the appropriations bill commingled general appropriations with special appropriations in a hybrid bill which he found to be unconstitutional. 3
A hearing was held on the motion to stay on April 30, 1980. Following the hearing, the Court issued an order assuming original jurisdiction and entered the motion to stay the effectiveness of the Attorney General's Opinions Nos. 79-311 and 79-313B.
The Attorney General contends this Court does not have original jurisdiction because it does not have general superintending control over the Office of Attorney General. The Attorney General argues that because the Okla.Const. art. 7, § 4 limits general superintending control of the Supreme Court to inferior courts, and all agencies, commissions, and Boards created by law, the exercise of jurisdiction over the Office of Attorney General would be violative of the doctrine of separation of powers pursuant to the Okla.Const. art. 4, § 1. According to the Attorney General, the petitioners should have filed an action for declaratory judgment in the district court. 4
The petitioners counter with the arguments that: 1) The Attorney General exercised quasi-judicial powers which are subject to control by the Court; 2) The matter is of intense concern to the citizenry of this state; and 3) Because of the expediency required and the nature of the matter, jurisdiction should be assumed.
In Oklahoma Ass'n of Mun. Attys. v. State, 577 P.2d 1310, 1312 (Okl.1978) 5 this Court considered whether it should assume original jurisdiction in a similar situation involving an attorney general's opinion. The Court determined that it should assume original jurisdiction because the issue was of broad public concern, and affected all public bodies and governing boards within the purview of the Open Meeting Laws. We find this is a matter of statewide concern and that original jurisdiction should be assumed under the doctrine of publici juris.
It is clear from a reading of art. 5, § 56 that certain things may be contained in a general appropriations bill, and other things must not be included. The quintessential query is whether the Oklahoma Constitution mandates a general appropriations bill. If it does, the Attorney General's Opinions are correct. If it does not, the Legislature may continue in its present pragmatic approach to state financing.
The Constitution, the bulwark to which all statutes must yield, must be construed with reference to the fundamental principals which support it. Effect must be given to the intent of its framers and of the people adopting it. This intent is to be found in the instrument itself; and when the text of a constitutional provision is not ambiguous, the courts, in giving construction thereto, are not at liberty to search for its meaning beyond the instrument. 6 Since H.B. 1140 makes an appropriation for the expense of an agency of the executive department in a separate bill and not in a single general appropriation bill, there is a presumption that the appropriation is constitutional and that the Constitution does not mandate a general appropriation bill for the expenses of the executive, legislative and judicial departments of government. 7
The Attorney General suggests that separate appropriation bills for the expenses of different departments of government are of recent development and that prior thereto, such appropriations were contained in a single appropriation bill.
The rule that where the Constitution confers the power to do a particular act and prescribes the means and manner of doing such act, such is exclusive of all others, 8 and the fact that in construing constitutional provisions, great weight must be given to legislative interpretation, 9 do not necessarily mean that the legislature, by enacting a single appropriations bill for the expenses of the several departments of government in prior years, must continue enacting a single appropriations bill. This is so because we do not look to the Constitution to determine whether the Legislature is authorized to do an act but rather to see whether it is prohibited. If there is any doubt as to the Legislature's power to act in any given situation, the doubt should be resolved in favor of the validity of the action taken by the Legislature. Restrictions and limitations upon legislative power are to be construed strictly, and are not to be extended to include matters not covered or implied by the language used. 10
Under our holding in Tate, if the Legislature enacted separate appropriation bills for the expenses of the several departments for one fiscal year, and enacted a single appropriation bill for the expense of all departments for the next fiscal year, we would not look to the Constitution to determine whether the two types of appropriations are authorized, but to determine whether the Legislature is prohibited by the Constitution from making the two types of appropriations, or either of them.
We find no express limitations in our constitution upon the power of the Legislature to enact laws similar to HB 1140. Nor do we find that the passage of such appropriation bills is prohibited by the Constitution. The Constitution mandates certain requirements if there is a general appropriations bill, it does not dictate that there be one.
Although a writ of mandamus will lie to compel the Attorney General to perform a plain ministerial duty, it is inappropriate when the Attorney General has performed his duty. The statute, 74 O.S.Supp.1979 § 18b(q), 11 imposes the requirement that the Attorney General answer any question on any subject posed by any member of the Legislature. The Attorney General answered the questions. Mandamus will lie to compel the Attorney General to exercise his discretion, but it does not lie to control his action regarding matters within his discretion, unless his discretion has been clearly abused. A difference of opinion is not an abuse of discretion. Where there is room for two opinions, the action is not arbitrary or capricious when it is exercised honestly upon due consideration even though it may be believed that an erroneous conclusion has been reached. 12 Before a writ of mandamus may be issued there must be: 1) a clear legal right vested in the petitioner, 2) refusal to perform a plain legal duty which does not involve the exercise of discretion, and 3) adequacy of the writ and inadequacy of other relief. 13 Mandamus is an improper remedy.
When a public officer exercises a judicial or quasi-judicial function, a writ of prohibition may be employed to control his actions. Prohibition is a preventive, rather than a corrective, remedy. It issues to prevent the threatened commission of a future act, not to undo a completed act nor to review or nullify an act which has already been performed. However, in public questions of great importance and interest, the Supreme Court may retain jurisdiction, and in a proper case grant prohibition. 14 Even though the Attorney General may have exercised quasi-judicial powers in the interpretation of the statutes, and it is appropriate to issue a writ of prohibition to control the performance of judicial and quasi-judicial activities, we choose not to issue a writ of prohibition but rather determine the opinions to be invalid and of no effect. 15
Original Jurisdiction Assumed. Attorney General's Opinions Nos. 79-311 and 79-313B Held To Be Invalid And of No Effect. Writ of Mandamus...
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