Wells v. Childers , 196 Okla. 353 ( 1945 )

"The letter killeth; but the spirit giveth life." (II. Cor. 3 ch., v. 6.)

A casual reading of the majority opinion herein discloses the applicability of the above quotation. To paraphrase: "When technicality comes in at the door, Justice flies out of the window. " The majority opinion herein written by a strong and active dissenter to the majority opinion in the former case of Wells v. Childers, 196 Okla. 339, 165 P.2d 358, is predicated upon a technical construction of isolated sentences and words contained in the former majority opinion, and in my opinion does violence to not only the prior majority opinion but also to the legislative act under consideration and the well recognized principles of law which should govern this judicial tribunal in its interpretations of the solemnly enacted laws of this state.

In addition to enumerating seven specific provisions relating to the use of said funds, the Legislature, by the eighth provision, declared:

"Any circumstance, condition, or situation which in the judgment of the Governor, requires the expenditure of money for the extraordinary protection of the State and for which specific appropriation has not been made; but not excluding any other contingencies or emergencies not specifically enumerated."

As pointed out in the former majority opinion, the sum appropriated, as compared with total appropriations, constitutes a very small percentage of the total. It would have been entirely permissible for the Legislature to make specific appropriations for each department or institution of the state, and to distinctly specify the uses for each item thereof, such as furniture, telephone and telegraph, transportation, stamps, etc., and to include an item of appropriation for miscellaneous expenses or "contingent expenses" not specifically enumerated. But the Legislature desired to place an additional safeguard against the expenditure of such unenumerated funds, and so it appropriated a sum to a special fund which could be used by the various departments or institutions only with the approval of the Governor, and when he had made a determination that the extraordinary protection of the state required such expenditure.

When the Governor has made a finding of the existence of such emergency or contingency, the court will not disturb the same "unless for a lack of power or an abuse of discretion." Commonwealth ex rel. Meredith v. Johnson, Governor, 292 Ky. 288,166 S.W.2d 409; Vandergrift v. Riley, 220 Cal. 340, 30 P.2d 516; Prideaux v. Frohmiller, 47 Ariz. 347, 56 P.2d 628.

Since the majority opinion strikes down all of the allocations made by the Governor as set out, I shall not attempt to analyze all of the fallacies and technicalities as applied by the majority.

I cannot refrain, however, from calling attention to the allocation made by the Governor to care for the inmates of the Confederate Soldiers Home at Ardmore. These inmates, the youngest of which, according to the record before us, is more than 100 years of age, have been honored wards of the state, some of them for several years. The Legislature changed the institution to a hospital, and broadened the field from which its inmates might be received. But through an apparent oversight, the funds for their care might not be available for a period of 25 days after the beginning of the biennium. Did the Legislature intend that these disabled, honored, and respected citizens of the state should be dispossessed and thrown upon voluntary charity or left to fend for themselves in their feeble helplessness? Surely, they could have had no such base intention. It was entirely proper for the Governor, in recognition of the emergency and contingency, and in the extraordinary protection of the state, to allocate funds for their support during the interim in which the institution was being transformed into the purpose declared by the new legislative policy.

Courts will not declare a legislative act unconstitutional unless its unconstitutionality appears beyond a reasonable doubt. Not only does such unconstitutionality not appear certain, but the additional safeguard against the expenditure of public money, subject always to a review by this court for abuse of discretion, has a basis for commendation. But in reviewing such action, courts should be scrupulously careful to refrain from arrogating to themselves the power of determination instead of yielding such power to the designated legislative agent.

The spirit of the former majority opinion is violated by the present opinion. I therefore respectfully dissent.

Mr. Justice WELCH and Mr. Justice DAVISON concur herein.