Wells v. Childers , 196 Okla. 339 ( 1945 )

This is an original proceeding attacking the constitutionality of H. B. 518 enacted by the 20th Legislature, creating the Governor's Contingency Fund, and seeking to restrain expenditures from the fund.

The appropriation is assailed on the ground that the act delegates legislative power to the Governor, in violation of article 4 of the Constitution, which reads:

"The powers of the government of the State of Oklahoma shall be divided into three separate departments: The Legislative, Executive, and Judicial; and except as provided in the Constitution, the Legislative, Executive, and Judicial Departments of government shall be separate and distinct, and neither shall exercise the powers properly belonging to either of the others."

Section 1 of the act creates a special cash fund in the office of the State Treasurer, to be known as the Governor's Contingency Fund, to be composed of such cash and appropriations as may be determined by the Legislature, to be disbursed for such purposes and in such manner as may be prescribed by the Legislature. Sections 2, 3, and 4 of the act prescribe the sources from which said fund will be derived. Section 5 authorizes the Governor to use and expend any or all of the monies in said fund to defray expenses arising by reason of contingencies or emergencies, including seven specified purposes, and authorizes the Governor to use and expend any or all of said monies under any circumstances, conditions, or situations which, in the judgment of the Governor, require the expenditure of money for extraordinary protection of the state for which specific appropriation has not been made, "not excluding any other contingency or emergency not specifically enumerated."

Section 6 of the act gives the Governor unlimited authority to allocate and authorize the expenditure of the monies in the fund as in his discretion might 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 emergency or contingency, and prescribes the procedure to be followed in making such allotment. Thus power is sought to be given the Governor to determine what shall constitute a contingency or emergency in addition to those by the Legislature enumerated in section 5.

Power to make laws is legislative and may not be delegated by the Legislature to the executive or judicial departments of the state government. Art. 5, sec. 56; art. 6, sec. 12, Const. of Okla. "Appropriation", as used in the Constitution, denotes the setting apart or assigning to a particular use a certain sum of money for specified purposes in such manner that public officials are authorized to draw and use the sum so set apart, and no more, for the purpose specified, and none other. Dickinson v. Clibourn, 125 Ark. 101, 187 S.W. 909; State v. Moore, 50 Neb. 88, 69 N.W. 373.

An appropriation in this state is a legislative authority, given at the proper time and in legal form to the proper officer, to apply a distinctly specified sum, from a designated fund out of the treasury, in a given year, for a specified object or demand against the state. Menefee v. Askew,25 Okla. 623, 107 P. 159.

The Legislature must not only, by law, set apart the money, but every such law making a new appropriation, or continuing or reviving an appropriation, shall distinctly specify the sum appropriated and the object to which it is to be applied. Article 5, sec. 55, Const. Each of these specified purposes must be a part of the law making the appropriation and each must be by the Legislature. This is a duty that cannot be delegated. Smithberger v. Banning, 129 Neb. 651, 262 N.W. 492, 100 A.L.R. 686; State v. Wetz, 40 N.D. 299, 168 N.W. 835.

The Legislature must determine to what objects and purposes money of the state shall be appropriated and cannot bestow that power upon any person or board for the exercise of discretion of the donee as to the objects for which the money shall be expended. People v. Brady, 227 Ill. 124, 115 N.E. 204; 16 C.J.S. 377; Re County Com'rs of Counties Comprising the 7th Judicial District, 22 Okla. 435, 98 P. 557.

Under these authorities, that part of section 5 which purports to authorize the Governor to use and expend said fund under "any circumstance, condition, or situation, which in the judgment of the Governor requires expenditure of money for the extraordinary protection of the state and for which expenditures specific appropriation has not been made, but not excluding any other contingencies or emergencies not specifically enumerated," and all that part of section 6 which empowers the Governor to allocate and authorize the expenditure of monies in said fund as may in his discretion be necessary to defray any necessary expenses resulting from any contingency or emergency, to any state officer, board, etc., by a certificate setting out the amount allocated and the purpose for which such amount may be expended, and setting out the supposed emergency or contingency requiring the expenditure; and all that part of section 6 which reads:

"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 but of said Governor's Contingency Fund in the manner that other claims against the State are paid."

— are all utterly void as an unconstitutional delegation of the legislative power.

This leaves some seven purposes specified in section 5 of the act for consideration. Incidentally, it may be noted that number 5 is clearly prohibited by the provisions of section 23, art. 10, of the Constitution, as amended, which, among other things, provides that after June 30, 1941, that portion of every appropriation at the end of each fiscal year, in excess of the actual revenue collected and allocated thereto, shall be null and void, and the further provision that any department, institution, or agency of the state operating on revenue derived from any law or laws which allocate the revenues thereof to such departments, institutions, or agencies, shall not incur obligation in excess of the unencumbered balance of surplus cash on hand. Said section clearly contemplates, and requires the Legislature to provide, that all appropriations shall be reduced so as to bring them within revenues actually collected. The appropriation being automatically reduced to conform to the amount of revenue actually collected, to permit the Governor to allocate and authorize the expenditure of any additional amount as provided in purpose number 5 in section 5 of the act is to give to the Governor power to appropriate money, which is clearly a legislative power which cannot be delegated. Objections might be pointed out as to other specified purposes, but we deem it unnecessary to discuss them. All of section 5 is objectionable for the same reason of unlawful delegation of legislative power. It gives the Governor unlimited power to use all or any part of the total appropriation for any one of the seven specified purposes. Likewise, it gives the Governor power to use any part of the appropriation for any one of the seven specified purposes.

In State v. Budge, 14 N.D. 532, 105 N.W. 724, the court had under consideration an act of the Legislature which provided for the appointment of a Board of Capitol Commissioners consisting of three persons, with power in said board to make a contract for the remodeling and reconstruction of the State Capitol and for the erection of a Governor's residence. The act detailed how the funds should be provided, the aggregate amount being $600,000. The commission was given unlimited discretion as to what the residence should cost and what the Capitol should cost, limited, of course, to $600,000 for both. The validity of the act was challenged in an action to enjoin the commissioners from proceeding thereunder. In the opinion, the court said:

"The commission has absolute power under this law to fix the limits of the cost of each of said buildings. They finally determine what sums shall be used for each building. We think that such discretion should have been exercised by the Legislature. It is not properly an administrative discretion. What the several buildings shall cost should have been limited by the act, as it is a substantive matter of legislative discretion that the Legislature cannot delegate."

So with the act here involved. The Governor is given unlimited discretion to use and expend any or all of the money in the fund for any one of seven specified purposes. Or he may, in his discretion, allot said money to two or more of said purposes. Or, he may, in his discretion, disregard all the seven purposes specified by the Legislature and allot all the money to any state officer, board, department, institution, or commission, or to any two or more of them, upon his determination of the existence of an emergency requiring the expenditure of the money so allotted. Or, finally, the Governor may, under the act, incur such obligations and expenses as he may deem necessary by reason of any contingency or emergency. The discretion and judgment to be used in these matters are purely and clearly legislative power and cannot properly be delegated to persons or boards. State v. Budge, supra; Lingo-Leeper Lbr. Co. v. Carter, 161 Okla. 5,17 P.2d 365.

The act is challenged as being violative of the provisions of article 5, section 55, Constitution, in that the sum sought to be appropriated as well as the object of its application is not distinctly specified in the act. By terms of the act, to constitute the fund, in addition to an appropriation from the general revenue fund of the state and a transfer from the sales tax token account, there is sought to be reappropriated from the general revenue fund the unencumbered balance and lapsed portion of the Governor's Contingency and Emergency Fund for the previous biennium, and to this end, reference is made in section 2 of the act to S. L. 1943, p. 328. What is the total sum appropriated? The act does not say, but the mandate of the Constitution is "Every such law making . . . an appropriation shall distinctly specify the sum appropriated . . ." It is urged, however, that the sum appropriated is a fact capable of ascertainment by mathematical calculation independent of the act and therefore under the theory "That is certain which can be reduced to certainty," the constitutional requirement is satisfied and fulfilled.

In Meyer v. Clift, 31 Okla. 793, 123 P. 1042, this court was of a different view. Therein it was said:

"It has been urged that the amount necessary is a question of fact only which may be determined independent of the act. In this we cannot concur. If the Constitution prohibits the Legislature from fixing the amount the act appropriates, by reference to any other law, the court cannot do indirectly what the Legislature is prohibited from doing directly . . . The sum that the Legislature may appropriate by any act must be a fixed sum." 59 C. J. 249; McAdoo Petroleum Corp. v. Pankey, 35 N.M. 246,294 P. 322; State v. Moore, 50 Neb. 88, 69 N.W. 373; Lepanto Spec. School Dist. v. Cone, 176 Ark. 1178,5 S.W.2d 332; Oliver v. Bolinger, 146 Ark. 242, 225 S.W. 314; Westinghouse E. M. Co. v. Chambers, 169 Cal. 131,145 P. 1025; Fergus v. Russel, 270 Ill. 304, 110 N.E. 130; Anno. Cas. 1916B, 1120; Peabody v. Russel, 302 Ill. 111, 134 N.E. 150, 20 A. L. R. 972.

In view of the provision (art. 5, sec. 55, Const.) that "It shall not be sufficient for such law to refer to any other law to fix" the sum appropriated, it is inferred that resort may not be had to any source other than the appropriating act to ascertain the sum appropriated. The inference becomes a certainty when consideration is given to the constitutional mandate "Every such law making . . . an appropriation shall distinctly specify the sum appropriated . . ." In view of the fact that section 2 of the act does not distinctly specify the sum appropriated, the appropriation to that extent fails.

Independent of failure of section 2 of the act to specify the sum sought to be appropriated as a material or major portion of the fund, was there an appropriation? Why is the chief executive officer not left to his own discretion in the use of public revenues? What is meant by the constitutional inhibition upon the executive power? History answers these questions. These restraints are contained in Constitutions of all the states and in the Constitution of the United States. They are imposed by paramount law to guard against the abuse of power. They were derived from historical documents enunciating fundamental principles, among which was that the king or executive department should not use money in the treasury except as specifically appropriated. Theretofore the king levied and expended public revenues by his own authority, and at his own will made application of public funds to such claims as he chose and to the neglect of others, and so he became independent of the people and, as a matter of course, tyrannical and wasteful in administration. 1 Black Comm. ch. 8. Public funds were then used where selfgratification, favoritism, and corruption could be best accomplished while just demands upon the treasury were left unpaid. Ristine v. State, infra. The result, according to Macauley, was plunder and the public revenues were wasted in extravagance and corruption until it was determined no longer to vote to the Crown revenue in lump sums to be applied to purposes according to royal discretion.

To guard against such abuse, effective sovereignty was then transferred from the Crown to the Parliament through the medium of enunciating a fundamental principle that "No money shall be drawn from the treasury but in pursuance of an appropriation by law". The principle is a part of our basic law extended as it is by words of the inhibition. The abuse to be avoided by the principle is exercise of official discretion in the expenditure of public funds. By it the Legislature alone is given the right and upon it is imposed the duty of designating periodically the particular demand, the object and the public purpose to which money in the treasury shall be applied and the amount of each application. Objects stated in several to which a fund of the state may be applied do not constitute an appropriation. The problem should be settled upon meaning of the Constitution. The words of that instrument require, in this respect, no interpretation. They are quite plain so as to require a legislative allocation of definite sums of money to a specific object or purpose as authority to disburse funds.

Assuming the limitation contained in our constitutional provision is not the rule by which an appropriation is measured, surely then there is reversion by the act under consideration to official discretion such as was abrogated in the English Revolution of 1688 and which it was undoubtedly the design of our Constitution to abrogate here.

Our conclusion is not without consideration of Edwards v. Childers, 102 Okla. 158, 228 P. 472, and Black v. Oklahoma Funding Bond Com., 193 Okla. 1, 140 P.2d 740, wherein the rule of the Edwards-Childers case is applied without further examination. The decision in Edwards v. Childers, supra, sustains an appropriation consisting of an excise tax on gasoline, the whole of which was devoted to construction and maintenance of state highways. The rule, therein stated was restricted by paragraph 4 of the syllabus to an appropriation of an entire fund for a particular purpose "from sources not coming from, or out of, the general revenue of the state". As indicated in Meyer v. Clift, supra, and by the opinion announcing the doctrine, it is thought the rule should not be extended.

"The primary object of the provisions of the Constitution . . . is to prevent the expenditure of the people's money without their consent, expressed in the organic law or constitutional acts of the Legislature." Dickinson v. Clibourn, 125 Ark. 101, 187 S.W. 909.

"The abuse to be corrected by the establishment of the principle was the exercise of official discretion in paying out the public money." Ristine v. State, 20 Ind. 328.

"The object of the Constitution . . . is to prevent expenditures of public funds at the will of those who have them in charge . . .". State v. Clausen. 94 Wash. 166, 162 P. 1.

In consequence of this view, it is the mandate of the Constitution that no money shall be paid out of the treasury of the state except in pursuance of an appropriation by law, and that an appropriation by law may not be made unless the law providing for expenditures from the general revenue fund of the state shall distinctly specify the sum appropriated and the object of its application.

The writ should be granted.

GIBSON, C.J., HURST, V.C.J., and ARNOLD, J., concur.