After an exhaustive review of the decisions of this and other state courts, and those of the Supreme Court of the United States, it is my firm conviction that the majority opinion has gone far beyond any judicial views yet expressed in an attempt to justify legislative and executive encroachment. The authorities cited in the majority opinion do not support either the conclusion or the reasoning therein.
By its express provisions Senate Bill No. 184 is clearly self-condemnatory. It says, and without restrictions: "The State Board of Public Affairs with the approval of the Governor shall have full and complete authority to use its discretion in making any shifts, changes, consolidations, transfers or suspensions which appear economically or otherwise advisable to the Board." That statement has direct reference to the provision next preceding it, which says, "said Board with the approval of the Governor is hereby authorized to transfer either in whole or in part the functions, inmates, personnel and funds from one institution to another institution under its control, to consolidate institutions, or close them entirely, if in the Board's judgment it is warranted."
In my opinion that language reveals an intention to confer upon the board certain well recognized policy-making powers which everywhere are said to be the exclusive and nondelegable functions of the lawmaking department of the state. The bill for that reason will not stand the test universally applied in distinguishing a mere legislative investment of administrative authority from an unconstitutional delegation of legislative power. See Yakus v. The United States, 321 U.S. 414, 88 L.Ed. 653, wherein it was said: "The essentials of the legislative function are the determination of the legislative policy and its formulation and promulgation as a defined and binding rule of conduct." See, also, Bowles v. Willingham, 321 U.S. 503, 88 L.Ed. 626.
The powers delegated to the board in this case would allow the board, at its discretion, to abolish state institutions, *Page 501 to consolidate them, and to alter or wholly change the particular functions for which they were established by law. Those powers are wholly legislative. Institutions such as those here considered are to be established and supported by the state in the manner to be prescribed by law (art. 21, Const.); and the Legislature, as the only lawmaking body, cannot delegate to any individual or board the power to establish, abolish, or materially alter those institutions. The Legislature alone may accomplish those things by duly enacted statutes. Orders of an administrative board cannot take the place of legislative power. Sec. 1, art. 4, Const.
The reasons for restricting the encroachment of the three branches of government, the one upon the functions of the others, have become so well fixed in the history of constitutional government that the question should require but little discussion.
Defendant board urges that said Senate Bill does not violate the requirement that neither branch of the government, the legislative, executive and judicial, shall execise the powers properly belonging to either of the others (sec. 1, art. 4, supra). It is said that the bill has declared a definite legislative policy, leaving to the board as an executive body the execution of the law according to the policy therein defined, pursuant to a guiding standard therein prescribed. The law is definite, says the board, with respect to the handling of the different institutions, depending for its execution merely upon the existence of certain facts to be found and determined by the board.
It is contended that the above circumstances bring the statute in question within the general rule that the Legislature may delegate to executive officers the power to determine certain facts on which the operation of the statute is, by its terms, made to depend. 12 C. J. 846; State ex rel. Murray, Governor, v. Carter, State Auditor, 167 Okla. 473,30 P.2d 700.
But a statute such as this, if it is to fall within the above rule and be saved from the objection of illegal delegation of legislative power, must not only declare a definite policy with respect to the subject of legislation, but must restrict within prescribed limits the functions of the executive board to the making of subordinate rules by which to determine the factual conditions to which the declared legislative policy is to apply, and by which said policy, if the facts warrant, is to be carried out. This statement finds support in Panama Refining Co. v. Ryan, 293 U.S. 388, 55 S.Ct. 241, 79 L.Ed. 446, wherein it was held, in effect, that regulations made by executive officers are valid only as subordinate to a legislative policy sufficiently defined by statute, and when found to be within the framework of such policy.
I would say that the attempted delegation by the Legislature of any power that would permit the executive board to infringe, to restrict, or to go beyond, the declared policy of the statute would not be subordinate to that policy, and would constitute an illegal delegation of legislative power.
The power of the executive board to act or not to act, in its discretion, after a determination of the facts upon which depend the operation of the declared policy, would deprive the statute of a definite legislative policy, and the same would fall short of the requirement that the delegated authority be subordinate to a declared policy. The effect in such circumstance would be an attempted delegation of the power to make the legislative policy. The Legislature cannot delegate its policy-making functions; the policy of the particular law is essentially the law itself. In Gibson Products Co. v. Murphy, 186 Okla. 714, 100 P.2d 453, 457, when dealing with this question, the court said:
"The Legislature may not delegate its power to make laws, it 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, otherwise 'there would be infinite confusion in the *Page 502 laws, . . .'. 1 Cooley, Constitutional Limitations 228 (8th Ed.)."
The statute in the instant case declares a policy, but not a definite policy such as is required to suit the rule permitting the Legislature to invest an administrative board with authority to apply the policy to the ascertained facts. The present statute would authorize the board to abolish, consolidate, and change the functions of certain state institutions at its pleasure, or to continue them if it so desires. It is not required to act even if the facts and circumstances would authorize action. Instead, the whole policy relative to the continued existence and operation of the institutions is turned over without restriction to the board. In so doing, the Legislature has attempted to renounce a duty that is exclusively its own and which cannot be turned over to another branch of the government. Associated Industries v. Industrial Welfare Comm., 185 Okla. 177, 90 P.2d 899. The rule as there stated reads as follows:
"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."
The power of a board to carry out the legislative policy pursuant to definite regulations found within the framework of the declared policy, places upon the board the positive duty to apply the law or not to apply the law as the ascertained facts shall require. Whether the declared policy is to apply in a given instance cannot be discretionary with the executive officers. Such officers may exercise discretionary powers in determining the true facts, that is, whether the factual contingencies demanding application of the policy exist, but they cannot, after determining the facts, apply the legislative policy thereto, or not, as their own desires may dictate. If the ascertained facts require the application of the policy, the policy must be applied; if not, the officers must not attempt to apply the policy. To authorize such discretionary action would permit such officers to inaugurate a legislative policy, and result in an illegal delegation of legislative power.
That was the effect of Senate Bill 184, supra, and in my opinion it is therefore illegal and void as an unauthorized delegation of legislative power.
The majority opinion cites Panama Refining Co. v. Ryan, supra, merely as a case dealing with this particular subject. That case would seem to me to fully support my own views on the question, and the reasoning therein wholly out of sympathy with that of the majority opinion.
In the Panama Case many decisions are reviewed and the reasoning in each case is contrary to that of the majority opinion. For sake of brevity I shall not review them here.
As said in that case (p. 430):
"The question is not of the intrinsic importance of the particular statute before us, but of the constitutional processes of legislation which are an essential part of our system of government."
I therefore respectfully dissent.
OSBORN, BAYLESS, and DAVISON, JJ., concur.