Schmitt v. Hunt

• Decision Date: 19 December 1960
• Docket Number: No. 39203,39203
• Citation: 359 P.2d 198,1960 OK 257
• Parties: Dale A. SCHMITT, Corinne Breeding, Richard A. Knox, D. B. Salmon, James B. Miller, Raymond Fields, and James J. Hunter, as the State Personnel Board of the State of Oklahoma, Plaintiffs in Error, v. Joe B. HUNT, Defendant in Error.
• Court: Oklahoma Supreme Court

Page 198

359 P.2d 198

1960 OK 257

Dale A. SCHMITT, Corinne Breeding, Richard A. Knox, D. B.

Salmon, James B. Miller, Raymond Fields, and James

J. Hunter, as the State Personnel Board

of the State of Oklahoma, Plaintiffs in Error, v. Joe B. HUNT, Defendant in Error.

No. 39203.

Supreme Court of Oklahoma.

Dec. 19, 1960.

Rehearing Denied Jan. 27, 1961.

Syllabus by the Court.

1. In the consideration of the unconstitutionality of any Act of the Legislature such Act should be held constitutional unless its unconstitutionality is shown beyond a reasonable doubt.

2. Power to determine the policy of the law is primarily legislative, and cannot be delegated, whereas the power to make rules of a subordinate character in order to carry out that policy and apply it to varying conditions, although partaking of a legislative character, is in its dominant aspect administrative and can be delegated and the Legislature may delegate the power to determine some fact or state of things upon which the law makes its own operation depend.

3. A statute should be given a construction in conformity with the Constitution in order that its constitutionality may be sustained, if the statute is susceptible of such a construction.

4. 74 O.S.Supp.1959, Ch. 27, does not become effective or operative until such time as the Executive Order is actually issued to any particular department or agency of government.

5. Section 813, 74 O.S.Supp.1959, does not violate Section 56, Article V of the Oklahoma Constitution.

Appeal from District Court of Oklahoma County; A. P. Van Meter, Judge.

Joe B. Hunt, who is the State Insurance Commissioner, sued the State Personnel Board of the State of Oklahoma composed of Dale A. Schmitt, Corinne Breeding, Richard A. Knox, D. B. Salmon, James B. Miller, Raymond Fields, and James J Hunter, to restrain this Board from bringing the employees of the Insurance Department of the State and the employees of the Insurance Commissioner of the State of Oklahoma under the Personnel Board as provided in 74 O.S.Supp.1959, Ch. 27, Sections 801-819, passed by the 1959 Legislature and to declare said Act unconstitutional. From a judgment for the plaintiff the defendants have appealed. Reversed.

Mac Q. Williamson, Atty. Gen., Fred Hansen, First Asst. Atty. Gen., W. L. Keating, Oklahoma City, of counsel, for plaintiffs in error.

Collins, Moore & Sellers, Sapulpa, for defendant in error.

HALLEY, Justice.

Briefly stated this is an action by Joe B. Hunt, the insurance Commissioner of the State of Oklahoma to restrain the State Personnel Board of Oklahoma from bringing the employees of the State Insurance Department and of the State Insurance Commissioner under the jurisdiction of the Personnel Board. The Director of the Personnel Board notified the State Insurance Department that under a schedule adopted by the State Personnel Board that the State Merit System for Personnel Administration would be extended to include the employees of the State Insurance Department as of April 25, 1960. This suit was filed to prevent such action.

The counsel for the respective parties to this proceeding have briefed this case under five heads which are as follows:

'1. The action is not premature.

'2. The act in question attempts an unlawful delegation of legislative authority to the State Personnel Board.

'3. The act in question usurps the prerogatives and duties of the Insurance Department of the State of Oklahoma, and of the Insurance Commissioner of the State of Oklahoma.

'4. The act in question attempts an unlawful delegation of legislative authority to the Governor of the State of Oklahoma.

'5. The act in question violates the constitutional provisions of this state in regard to appropriation of public funds.'

Since the important thing in this lawsuit is the constitutionality of Title 74, Ch. 27, O.S.Supp.1959, which we are deciding, we will not discuss the first proposition. The prematurity of this suit is of no concern.

Parties will be referred to as they appeared in the trial court.

We will discuss the remaining propositions in their order. We think it would be helpful to set out the purpose as set out in the first paragraph of the Act:

'The general purpose of this Act is to provide all citizens a fair and equal opportunity for public service, to establish conditions of service which will attract officers and employees of character and ability, to establish uniform job and salary classifications, to increase the efficiency and economy of the governmental departments and agencies by the improvement of methods of personnel administration, to provide a statutory basis for the existing merit system of personnel administration covering the employees of the State Employment Security Commission, Crippled Children's Commission, the State Department of Health, and the State Department of Public Welfare, and to provide for the extension of the merit system to the employees of such other state agencies or departments as the Governor may direct by an Executive Order. The Legislature further declares that, in its considered judgment, the proper administration of our State government requires the enactment of this measure.'

In the consideration of the constitutionality of any Act of the Legislature it must be borne in mind that such an Act should be held constitutional unless its unconstitutionality is shown beyond a reasonable doubt. Bailey v. State Board of Public Affairs, 194 Okl. 495, 153 P.2d 235; Leveridge v. Oklahoma Tax Commission, Okl., 294 P.2d 809. See also the cases shown in West's Oklahoma Digest, Constitutional Law, k48.

The function of the Court is clearly limited to the determination of the validity or invalidity of the Act. There is a presumption that the Act is constitutional. Application of State of Oklahoma Building Bonds Commission, 202 Okl. 454, 214 P.2d 934.

Under proposition II the plaintiff says that Title 74, Ch. 27, attempts an unlawful delegation of legislative authority to the State Personnel Board and for that reason is unconstitutional. With this contention we cannot agree.

To us there is nothing in the Act that takes away any power of the Legislature or unlawfully delegates legislative authority to the Personnel Board. Surely the Legislature would not undertake to enumerate the entire gamut of operations of the Board. From necessity, it has become increasingly imperative that many quasi-legislative functions be entrusted to departments, boards and commissions. These things must be done in this way or they cannot be done at all, and their doing, in a very real sense, makes for the safety of the republic and is thus sanctioned by the highest law. Cornell v. Harris, 15 Cal.App.2d 144, 59 P.2d 570. In order to have a successful operation of an institution of the kind set up by the Legislature to insure improvement of the personnel problems involved in the operation of a State Government the Board in control must have some leeway in its operations or otherwise it could not move.

Today there are at least fifteen State Merit System Acts operating in other jurisdictions, which contain similar provisions to our Title 74 O.S.Supp.1959, Section 805(2) and they have not been declared unconstitutional.

The authority to make rules and regulations carrying out the purposes of Merit Systems or Civil Service Acts has been held not to be an unlawful delegation of legislative authority in the following cases from other jurisdictions: Yeilding v. State ex rel. Wilkinson, 232 Ala. 292, 167 So. 580; Cornell v. Harris, supra; People ex rel. Akin v. Kipley, 171 Ill. 44, 49 N.E. 229, 41 L.R.A. 775; Ricks v. Department of State Civil Service, 200 La. 341, 8 So.2d 49; Opinion of the Justices, 138 Mass. 601; Gregory v. Kansas City, 244 Mo. 523, 149 S.W. 466; Green v. State Civil Service Commission, 90 Ohio St. 252, 107 N.E. 531; State ex rel. Buell v. Frear, 146 Wis. 291, 131 N.W. 832, 34 L.R.A.,N.S., 480.

The foregoing cases sustain the general rule announced in 10 Am.Jur., Civil Service, Section 4, as follows:

'It is a well-recognized principle that a state legislature may enact laws providing that appointments to public offices or positions shall be made according to merit and fitness and that such merit and fitness must be ascertained by competitive examination. Such laws, though assailed on many grounds, have, with only a few exceptions based upon some particular feature of the law of some particular constitutional provision, been uniformly held constitutional. The main consideration in the selection of officers and agents is the public welfare. * * * A public office is not the property of an officeholder within the constitutional provision against depriving a man of property; nor does it ever become a vested right as against the right of a state to remove its incumbent.',

and 16 C.J.S. Constitutional Law § 138, p. 621, which is:

'Civil Service. The legislature may establish a civil service commission, and, within limitations imposed by the constitution, may confer on it authority to adopt and enforce rules for carrying into effect the provisions of a civil service statute, including rules governing the appointment of public officers, their tenure of office, the preparation and holding of examinations, the grading of papers, the granting of veterans' preference, promotion, and removal to classify offices and employments; to determine exemptions on account of the impracticability of ascertaining merits by examination; and to make investigations concerning the action of persons in the public service and make reports thereof.

'Retirement. The legislature may delegate to executive officers or agencies various powers with respect to the retirement of public officers or employees.'

While we have not previously considered the validity of this Act, we have heretofore considered in other cases many of the legal problems presented and argued in this case.

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