I concur in the dissenting opinions of the Chief Justice and of Mr. Justice Riley. The authorities cited by them support the conclusion that the making of appropriations for state purposes is traditionally *Page 347 (59 C. J., States, §§ 341, 382), and by the express terms of our State Constitution (section 55, article 5), purely a legislative function which the Legislature cannot delegate, and that the act violates article 4 of our Constitution, and it also violates section 55, article 5, of our Constitution in four respects: (1) It refers to another statute in fixing part of the sum appropriated, (2) it does not distinctly specify the sum appropriated, (3) it does not distinctly specify the object to which the appropriation is to be applied, and (4) it is made nonfiscal, which means that the appropriation may be expended after the expiration of two and one-half years from the passage of the act. Furthermore, the authorities cited in the majority opinion do not support the reasoning thereof or the conclusion reached, as I shall now briefly point out.
The first two cases cited in the majority opinion (Edwards v. Childers and Black v. Oklahoma Funding Bond Commission) concerned appropriation bills for a specified object, and no discretion to use the money appropriated for different purposes was vested in any executive officer in the acts there under consideration, as in the act here involved.
The next authorities cited in the majority opinion do not deal with the validity of appropriation bills. Rather, they deal with the right of the Legislature to delegate administrative duties to executive officers by laying down a sufficient standard to guide the officers in administering the law. Bailey v. State Board of Affairs, 194 Okla. 495,153 P.2d 235, had to do with the executive function of caring for the wards of the state and spending the appropriations made for that purpose. The other authorities concerned the police power and the due process clause. They all recognize that the Legislature cannot delegate true legislative power, such as the power to make a law.
The authorities last cited in the majority opinion dealt with appropriations. The first two (Protest of St. L. S. F. Ry. Co. and People v. Bowman) had reference to municipal appropriations, and are not in point, since section 55, art. 5, of our Constitution and the like provision of the Illinois Constitution relate only to appropriations by the Legislature, not to municipal appropriations made by the local officers. The other cases by the courts of Arizona, California, Kentucky, Massachusetts, Vermont, and Wisconsin involved appropriation bills under constitutional provisions which do not require that appropriation bills distinctly specify the amount of the appropriation or the object to which it shall be applied, as in Oklahoma. The California Constitution (art. 4, sec. 22) requires only that "no money shall be drawn from the treasury but in consequence of appropriation made by law." The provisions of the Constitutions of Kentucky (sec. 230), Massachusetts (Part 2, ch. 2, § 1, art. 11), Vermont (sec. 27, ch. 2), Wisconsin (sec. 2, art. 8), and of many other states, as well as of the United States (article 1, sec. 9(7)), are very similar to the quoted California provision. On the other hand, seven states have constitutional provisions very similar to section 55, art. 5, of our Constitution. See Arkansas, section 29, art. 5; Illinois, section 16, art. 5; Louisiana, section 10, art. 4; Maryland, section 32, art. 3; Missouri, section 19, art. 10; New Mexico, section 30, art. 4; New York, section 21, art. 3. In the Kentucky, Massachusetts, and Wisconsin cases cited in the majority opinion attention is called to the fact that some states have constitutional provisions requiring that legislative appropriations be definite as to amount and purpose. Thus, the Kentucky court (292 Ky. 288, 166 S.W.2d 409) said:
"While some of our sister states' Constitutions contain provisions prescribing the form and extent to which appropriations shall be detailed and specified, a great many states, like our own, have no restrictions in that respect."
The Massachusetts court (302 Mass. 605, 19 N.E.2d 807) said: *Page 348
"Cases arising in other jurisdictions under constitutional provisions in different form furnish little aid in interpreting the provisions of the Constitution of this commonwealth. See, for example, Peabody v. Russell, 302 Ill. 111; State v. Carter,167 Okla. 32."
And the Wisconsin court (183 Wis. 132, 197 N.W. 823) said:
"In the states of North Dakota, Arkansas, Oklahoma, and South Dakota there are constitutional provisions that appropriations must be specific, or there are other provisions imposing conditions not found in our Constitution."
The clear inference is that the courts of Kentucky, Massachusetts, and Wisconsin would not have sustained appropriations for contingency and emergency purposes if their Constitutions had contained provisions, similar to section 55, art. 5, of our Constitution.
The attempt of the majority to distinguish the Illinois case, Peabody v. Russell, 302 Ill. 111, 134 N.E. 150, 20 A. L. R. 972, is not effective. That case is contrary to the majority opinion, and properly construes and enforces the Illinois constitutional provision requiring that appropriation bills "specify the objects and purposes" for which the items of appropriation are made, and holds in effect that "emergencies" do not constitute a specified "object and purpose." And the annotator was of this view.
I do not find where, in any of the other states having constitutional provisions like ours, an omnibus appropriation for contingency and emergency purposes to be expended for more than one purpose at the will of executive officers has been considered. However, the reasoning of the courts of some of those states would seem to condemn such an act. See People v. Board of Supervisors, 52 N.Y. 556; People v. Tremaine,252 N.Y. 27, 168 N.E. 817; State v. Seibert, 99 Mo. 122, 12 S.W. 348; Dickinson v. Clibourn, 125 Ark. 101, 187 S.W. 909; Arkansas Game and Fish Comm. v. Page, 192 Ark. 732,94 S.W.2d 107; McAdoo Petroleum Corp. v. Pankey, 35 N.M. 246,294 P. 322; Gamble v. Velarde, 36 N.M. 262, 13 P.2d 559.
For other authorities dealing with this question, see 59 C. J. 248-251; 42 Am. Jur. 744-749.
The certificate of the Governor making each allocation "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 expenditures of such allocation" constitutes the act of appropriation — the setting apart of a specific amount for a specific purpose — which is a non-delegable legislative function.
For the foregoing reasons, I think the majority opinion is not only contrary to the plain language of our Constitution, but is not supported by the authorities relied upon, and I respectfully dissent.
The Chief Justice and Justices RILEY and ARNOLD concur in these views.