Wells v. Childers

• Decision Date: 04 October 1945
• Docket Number: 32272.
• Parties: WELLS v. CHILDERS, State Auditor, et al.
• Court: Oklahoma Supreme Court

165 P.2d 358

196 Okla. 339, 1945 OK 254

WELLS v. CHILDERS, State Auditor, et al.

No. 32272.

Supreme Court of Oklahoma

Oct. 4, 1945

Rehearing Denied Nov. 2, 1945.

Original proceeding in the Supreme Court by J. K. Wells against C. C Childers, State Auditor for the State of Oklahoma, and others, attacking the constitutionality of House Bill No 518, enacted by the Twentieth Legislature, 62 O.S.Supp.1945 § 139.1 et seq., creating the Governor's Contingency Fund, wherein Robert Burns intervened, asserting the unconstitutionality of such bill and also of Senate Bill No 197 of the Nineteenth Legislature, Laws 1943, p. 328.

Writ denied.

GIBSON, C.J., HURST, V. C.J., and RILEY and ARNOLD, JJ., dissenting.

Syllabus by the Court.

1. The legislature may not delegate its power to make laws, and must declare the policy and fix legal principles, but other agencies may be invested with power to ascertain facts to which the policy and principles apply, such power being administrative.

2. The power vested in the Governor by virtue of House Bill No. 518 of the Twentieth Legislature, 62 O.S.Supp.1945, § 139.1 et seq., to the extent passed upon herein, is administrative in nature, and said act does not violate Article 4 of the Constitution.

3. House Bill No. 518 of the Twentieth Legislature does not violate Sections 55 or 59 of Article 5 of the Constitution.

Sid White, of Oklahoma City (Hall Rains, of Oklahoma City, of counsel), for plaintiff.

Randell S. Cobb, Atty. Gen., for defendants C. C. Childers, State Auditor, and A. S. J. Shaw, State Treasurer.

E. L. Mitchell and C. W. King, both of Oklahoma City, for defendant Oklahoma Tax Commission.

Robert Burns, of Oklahoma City, in pro. per., for intervener.

OSBORN Justice.

This is an original proceeding brought in this court by the plaintiff, J. K. Wells, attacking the constitutionality of House Bill No. 518 enacted by the Twentieth Legislature, creating the Governor's Contingency Fund. In the action Robert Burns filed a petition in intervention asserting the unconstitutionality of House Bill No. 518, 62 O.S.Supp.1945, § 139.1 et seq., and also asserting that Senate Bill No. 197 of the Nineteenth Legislature, Session Laws of 1943, p. 328, was unconstitutional for the same reasons as those urged against House Bill No. 518.

The attack by the plaintiff and intervener upon House Bill No. 518 is based upon three grounds: (1) That it violates Section 55, Article 5 of the Constitution, for the reason that neither the object of the appropriation nor the sum appropriated are definitely and distinctly stated in the act; (2) that said act is void because it violates Article 4 of the Constitution in that it delegates to the Governor legislative power; and (3) that it violates Section 59, Article 5 of the Constitution. The attack of the intervener upon House Bill No. 518 and also his attack upon Senate Bill No. 197 are based upon the same grounds. Senate Bill No. 197 of the Nineteenth Legislature is almost identical in terms with House Bill No. 518, and we will consider House Bill No. 518 and apply the same reasoning to Senate Bill No. 197 without separately discussing it.

House Bill No. 518 creates a special cash fund to be known as the Governor's Contingency Fund, directs the State Auditor to transfer to said fund all the unincumbered cash in the general revenue appropriation remaining from the Governor's Contingency and Emergency Fund, authorized by Senate Bill No. 197 of the Nineteenth Legislature, and any cash remaining to the credit of allocations made out of the last mentioned fund where the allocation has lapsed, directs the Oklahoma Tax Commission to transfer to said fund the sum of $200,000 from the sales tax token account of said Commission, and appropriates out of the general revenue fund the sum of $200,000. Said act in part provides:

'Section 5. The Governor may use and expend any or all of the monies in the Governor's Contingency Fund herein created, to defray expenses arising by reason of contingencies or emergencies for which provision has not been made, including (1) necessary repair or replacement of public buildings destroyed or damaged by fire, hail, tornado, explosion, or other hazard; (2) emergencies resulting from increase in the cost of food, clothing and maintenance necessary for the operation of any State penal, charitable or eleemosynary institution; (3) for supplemental allocation to the Oklahoma State Regents for Higher Education for emergency needs of the institutions comprising the Oklahoma State System of Higher Education; (4) necessary maintenance of the National Guard when released from Federal service; (5) necessary augmentation of any appropriation for any State function which may be reduced by reason of a failure in the revenue provided to finance such appropriation; (6) for the purchase of food and clothing, maintenance costs, and payment of salaries at penal and eleemosynary institutions of the State; (7) for the repair and replacement of highways and bridges destroyed or damaged by floods; and (8) any circumstance, condition or situation which, in the judgment of the Governor, requires the expenditure of money for the extraordinary protections of the State and for which expenditures specific appropriation has not been made; but not excluding any other contingencies or emergencies not specifically enumerated.

'Section 6. The Governor may allocate and authorize the expenditure of monies in the Governor's Contingency Fund as may, in his discretion, be necessary to defray any necessary expenses resulting from any contingency or emergency to any State officer, board, department, institution, or commission in defraying expenses resulting from any such contingency or emergency by filing with the State Auditor a certificate setting forth the amount allocated, the purpose for which such amount may be expended, the emergency or contingency requiring the expenditure and such limitations or conditions as the Governor may elect to impose upon the expenditure of such allocation. Upon the filing of such certificate, such officer, board, department, institution, or commission shall be authorized to incur obligations and expenses payable out of the Governor's Contingency Fund by complying with the provisions and conditions contained in the certificate of authority. Claims for payment of obligations or expenses incurred pursuant to such authorization shall be paid by the State Auditor by the issuance of warrants out of the Governor's Contingency Fund in the same manner as other claims against the State are paid. If, at any time, a balance remains in any allocation after the contingency or emergency for which the allocation was made has been met, the Governor may order the cancellation of said balance and revert same to the unallocated amount of the Governor's Contingency Fund. The State Auditor shall keep a separate account of each allocation made by the Governor. The Governor may also incur such obligations and expenses as he may deem necessary by reason of any contingency or emergency and claims for payment of any such expenses or obligations shall, when approved by the Governor, be payable out of said Governor's Contingency Fund in the manner that other claims against the State are paid.'

We are not herein concerned with any specific allocation of said funds, the attack being levelled at the act in its entirety.

The principal attack upon the statute is predicated upon the provisions of Section 55, Article 5 of the Constitution, providing that every law making or reviving an appropriation 'shall distinctly specify the sum appropriated and the object to which it is to be applied, and it shall not be sufficient for such law to refer to any other law to fix such sum.'

As to the first requirement above--that it shall distinctly specify the sum appropriated--it appears from the face of the act that the sum appropriated is capable of ascertainment by mathematical calculation, and therefore it is definite and certain within the meaning of said constitutional provision. Edwards v. Childers, 102 Okl. 158, 228 P. 472; Black v. Oklahoma Funding Bond Commission, 193 Okl. 1, 140 P.2d 740.

As to the second requirement above--that it must distinctly specify the object to which it is to be applied--petitioner contends that it is indefinite and uncertain in that it grants discretionary power to the Governor in the expenditure thereof, and therefore confers upon him legislative power which could not be delegated by the Legislature, and that the act therefore violates Article 4 of the Constitution providing for a separation of the powers of government into legislative, executive and judicial departments, and that neither shall exercise the powers properly belonging to either of the others.

While the Legislature may not delegate to another agency the authority to make laws, it may delegate to another agency the power to make rules and regulations relating to the administration thereof and to determine facts and specific situations to which the general policy of the law as declared by the Legislature applies. Associated Industries v. Industrial Welfare Commission, 185 Okl. 177, 90 P.2d 899; Gibson Products Co. v. Murphy, 186 Okl. 714, 100 P.2d 433; Bailey v. State Board of Affairs, Okl.Sup., 153 P.2d 235; Panama Refining Co. v. Ryan, 293 U.S. 388, 55 S.Ct. 241, 79 L.Ed. 446; 42 Am.Jur., Public Administrative Law, sec. 44.

The cases above cited review many authorities from this and other states, and we deem it unnecessary to cite additional authorities upon this point. It is clear that in House Bill No. 518 the Legislature definitely set forth its policy and purpose to protect the state, in the interim between its sessions, from the evil effects due to...