We considered and approved as constitutional the act under authority of which the allocation here involved was made to the Department of Public Safety, H.B. No. 518, Title 74, S.L. 1945, ch. 1, p. 376, in Wells v. Childers, 196 Okla. 339,165 P.2d 358.
In disapproving the allocations considered in Wells v. Childers, 196 Okla. 353, 165 P.2d 371, we said:
"Allocations or expenditures made under item 8, sec. 5, or sec. 6, H.B. 518, Title 74, S.L. 1945, ch. 1, p. 376, 62 O.S. Supp. 1945, §§ 139.2(8), 139.3, for 'extraordinary protection of the State' are limited to those compelled by some unforeseen condition such as 'to repel invasion, suppress insurrection, or defend the State in war' — flood, famine, fire, earthquake, pestilence, or epidemics of disease which compel the State to put forward its highest endeavors to protect the people, their property, liberty and lives."
In the body of the opinion we said:
"In State v. Davis, 113 Kan. 4, 213 P. 171, an extraordinary expense was distinguished from ordinary expense, such as incurred by the state for promotion of the general welfare. It was said to be that compelled by some unforeseen condition which is not regularly provided for by law, as floods, famine, fire, earthquake, pestilence, war, or other conditions that will compel the state to put forward its highest endeavor to protect the people, their property, liberty and lives."
The controlling facts presented by this original proceeding to compel the State Auditor by mandamus to set up an account as directed by the Governor, transfer the money allocated thereto and pay valid claims filed against the account are: On the 24th day of January, *Page 5 1946, the Governor executed and filed with the Secretary of State certificate of authority No. 16, which is self explanatory of the matters investigated and determined by him and is as follows:
"Pursuant to authority vested in me by Chapter 1, Title 74, page 376, Oklahoma Session Laws 1945 (62 O.S.Supp. 1945) (§ 139.1 to 139.4) and the mandatory duty placed on me, as Governor of Oklahoma, by Section 8, Article 6 of our State Constitution to 'cause the laws of the State to be faithfully executed, . . . and he shall be a conservator of the peace throughout the state,' there is hereby allocated from the Governor's Contingency Fund, created by said act, Account No. 10500, to the State Department of Public Safety the sum of $30,000.00 to be used by said department for the employment of not to exceed 25 additional patrolmen at annual salaries of not to exceed $2,700.00 each, in order to assist said department in carrying out the duties required of it by law during the remainder of the fiscal year ending June 30, 1946.
"This order is made and the allocation of funds set forth therein authorized because the Twentieth Legislature (which adjourned on April 26, 1945, at a time when motor vehicle travel on the highways of Oklahoma and resulting traffic violations and highway accidents were extremely light by reason of thousands of Oklahoma citizens being absent from the State in defense plants and the armed forces of the United States and by reason of gasoline rationing) in the General Departmental Appropriation Bill (Senate Bill No. 9) for the fiscal year ending June 30, 1946, made an appropriation in an amount only sufficient to pay the annual salaries ($2,700.00 each) of the 79 patrolmen of the State Department of Public Safety for the fiscal year ending June 30, 1946, which appropriation, while adequate at the time made, is now wholly inadequate by reason of existing conditions not foreseeable by said Legislature prior to its said adjournment, to wit: (a) the termination of hostilities against the Axis powers on May 8, 1945 and against Japan on September 2, 1945, (b) the subsequent return to this State of a large majority of said citizens and the lifting of gasoline rationing, (c) the consequent greatly increased motor vehicle travel on the highways of Oklahoma, and (d) the resulting approximate doubling of traffic violations and highway accidents and the consequent great and increasing loss of life and property of the citizens of this State. That, by reason of the above extraordinary and unforeseeable conditions, I find that an emergency exists; and that, therefore, it is now absolutely necessary, in order that the laws of the State may be faithfully executed and the lives and property of its citizens protected, the allocation set forth in the preceding paragraph hereof be made.
"It is ordered and directed that the above allocated funds shall be used for the employment of patrolmen, as aforesaid, and for no other purpose, and that if any of the funds so allocated remain unexpended on June 30, 1946, the same shall not be expended by said department or transferred to any other item of appropriation of and for said department, but shall revert to the Governor's Contingency Fund.
"All claims contracted against this allocation shall be presented in the usual manner and paid out of the above-named fund when authorized and approved by the Commissioner of Public Safety."
A claim for services performed pursuant to appointment as a highway patrolman by reason of the alleged, determined, and declared emergency existing by reason of greatly increased hazardous traffic conditions upon our highways, was filed by one Holt, the petitioner, and rejected by the State Auditor on the authority of our holding in Wells v. Childers, supra, and the opinion of the Attorney General bearing date of January 5, 1946; the Legislature that created the Governor's Contingency Fund made provision and set the salaries for 79 highway patrolmen, reducing the number theretofore provided by 55. This reduction in number of highway patrolmen was made by the Legislature in accordance with the recommendation of the Department of Public Safety and the budget officer appointed by the Governor.
We held in Wells v. Childers, supra, that H.B. No. 518 was sufficient as to *Page 6 specification of purpose and amount of the appropriation made. We also held therein that the power vested in the Governor thereunder is administrative — not legislative. The duty to determine the existence of a real emergency and allocate funds therefor, if available and an emergency is found to exist, was thereunder cast upon him.
When the Governor has made a determination of the existence of such emergency, as set forth in his findings, this court will not disturb the same except "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, 415; Vandergrift v. Riley, 220 Cal. 340, 30 P.2d 516; Prideaux v. Frohmiller,47 Ariz. 347, 56 P.2d 628. It is to be presumed that the Governor made proper investigation; that the facts disclosed to him support the findings made by him. There is no showing that he abused the duty and discretion imposed by the law. Under his findings and determination a real emergency exists affecting the life and property of the many millions using the highways at all times. The only question remaining is: Was the existing emergency foreseen, foreseeable or reasonably to be anticipated by the Legislature? In this connection it should be noted that the war was not at an end and no one knew just when it would end and certainly no one knew when the rationing restrictions affecting travel on the highways would be lifted, and no one could foresee when industrial conditions would relieve the generally inefficient condition of means of highway travel or the extent to which highway travel would increase. Of course, as the state contends, we all anticipated that the war would some time end and we all thought that probably rationing restrictions, affecting highway travel, would end and that there would some day be a great influx of travelers on the highways. But when these things would occur or to what extent the hazards thereof would be minimized or increased by other conditions not calculable no one could reasonably foresee. All the foregoing facts enumerated and those found by the Governor and the fact that the Legislature with the advice of the Public Safety Department and the Budget Officer reduced the number of highway patrolmen show that it did not anticipate the development of such an emergency. All the facts and circumstances found by the Governor and presented to us by the parties indicate to us that the Legislature did not foresee, nor could reasonably have foreseen, the development of the emergency found to exist. There is nothing to show us that the Governor abused his discretion and duty in the matter. He had the authority to make the allocation under the circumstances and it is approved.
Let the writ issue.
OSBORN, WELCH, CORN, and DAVISON, JJ., concur. HURST, V.C.J., and RILEY and BAYLESS, JJ., dissent.