The fundamental principle of government involved in the case is far-reaching. Our form of government depends upon the basic charter — the Constitution of Oklahoma.
Section 1 of article 2 of the Constitution of Oklahoma provides:
"All political power is inherent in the people; and government is instituted for their protection, security, and benefit, and to promote their general welfare; and they have the right to alter or reform the same whenever the public good may require it; provided, such change be not repugnant to the Constitution of the United States."
So it can be seen as a golden thread in our Constitution that government should not be and never can be, under this Constitution, put beyond the control of the citizenship of this state expressed by them at the polls.
Section I of article 6 of the Constitution of Oklahoma provides that
"The executive authority of the state shall be vested in a Governor, Lieutenant Governor, Secretary of State, State Auditor, Attorney General, State Treasurer, Superintendent of Public Instruction, State Examiner and Inspector, Chief Mine. Inspector, Commissioner of Labor, Commissioner of Charities and Corrections, Commissioner of Insurance, and other officers provided by law and this Constitution, each of whom shall keep his office and public records, books and papers at the seat of government, and shall perform such duties as may be designated in this Constitution or prescribed by law."
Section 2 of article 6 of the Constitution of Oklahoma provides:
'The supreme executive power shall be vested in a Chief Magistrate, who shall be styled 'The Governor of the State of Oklahoma'."
So it can be seen that the supreme executive power is vested in the Governor of Oklahoma. That means that all executive power not delegated by the Constitution to lesser executives is vested in the chief executive, the Governor of Oklahoma. The word "supreme" has a well-defined and well-known meaning; meaning all executive power not delegated to lesser executives is vested in the Governor of Oklahoma. There is no executive power vested in the Legislature.
Section 1 of article 4 of the Constitution of Oklahoma provides:
"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 this Constitution, the legislative, executive, and judicial departments of government *Page 172 shall be separate and distinct, and neither shall exercise the powers properly belonging to either of the others."
This division of authority is necessary because it has been said, and it is true, where the executive, legislative, and judicial authority is vested in one department of government, that it results in tyranny regardless of the form of government — whether monarchy, republican, or democratic form of government. So, with the division of authority under this section of the Constitution, the Legislature cannot perform the duties of the executive department; neither have they a right to restrict or control or merge with the legislative authority the executive authority.
Section 36 of article 5 of the Constitution of Oklahoma provides in part:
"The authority of the Legislature shall extend to all rightful subjects of legislation. * * *"
But where the subject of legislation attempts, as in the instant case, to control or limit the authority of the chief executive, then it is contrary and in violation of section 1 of article 4 of the Constitution of Oklahoma.
It is true, as contended, that there is a fundamental difference between the Constitution of the United States and the Constitution of Oklahoma in that the Constitution of the United States is a grant of authority and the Constitution of Oklahoma is a limitation on the authority of the different departments of government; but there is no fundamental difference between the Constitution of the United States and the Constitution of the state of Oklahoma in the division of authority of the legislative, executive and judicial departments. Under the Constitution of the United States, the legislative, executive and judicial departments are kept separate and distinct. Under the Constitution of Oklahoma, the legislative executive, and judicial departments should be kept separate and distinct.
The majority opinion says that the case of Myers v. United States, 272 U.S. 52, 71 L.Ed. 160, does not apply, and is not binding on this court. I say that it does apply, and should be binding on this court. The able opinion of the court in the Myers Case by Mr. Chief Justice Taft is unanswerable. Congress passed a law that, by and with the consent of the Senate, certain classes of postmasters could be appointed by the President, and could only be removed by and with the consent of the Senate. President Wilson removed a postmaster by the name of Myers. This case reached the Supreme Court of the United States, and the question of the authority of the President to remove was sustained by the Supreme Court of the United States on the theory that the chief executive of the United States, to whom the appointing power was given by the Act of Congress, had authority to remove his appointee in the executive department of government.
It is admitted here that the Highway Commission of Oklahoma is in the executive department of government. The Legislature created the position of Highway Commissioner; delegated the authority to the Goveraor to appoint the Highway Commissioners, but provided that the Highway Commissioners may be removed from office only by any court of competent jurisdiction for causes stated in the act. Chapter 68 Sess. Law 1920 [O. S. 1931, secs. 10072-10073].
Section 8 of article 6 of the Constitution of Oklahoma provides as follows:
"The Governor shall cause the laws, of the state to be faithfully executed, and shall conduct in person or in such manner as may be prescribed by law, all intercourse and business of the state with other states and with the United States, and he shall be a conservator of the peace throughout the state."
So it can be seen that the Constitution of Oklahoma vests in the Governor of Oklahoma the duty to cause all the laws of the state to be faithfully executed, and that he shall conduct in person or in such manner as may be provided by law all intercourse and business of the state with other states and with the United States. The duty enjoined upon the Governor to see that all the laws are enforced by the Constitution of Oklahoma cannot be delegated by the Legislature to an inferior executive officer, or that he shall conduct in person all intercourse and business of the state with other states and with the United States.
There is no means provided by law by which the Highway Department may conduct the business of the Highway Department with the United States. There is only one representative of the state of Oklahoma that can conduct the business of the Highway Department with the United States and that is the Governor of the state of Oklahoma. This authority and power cannot be taken from him by the. Legislature.
The acts of Congress providing federal aid for road building in Oklahoma, and the conduct *Page 173 of the business of the Highway Department with the government of the United States is placed in the Governor of Oklahoma, and any attempt on the part of the Legislature to create a Highway Department to take over these duties and conduct with the United States government the business of the state of Oklahoma is in violation of this section of the Constitution.
The Supreme Court of the United States in the case of Myers v. U.S., supra, in an exhaustive opinion reviewing the history of our form of government and constitutional authority vested in the executive department of government by the Constitution of the United States, quoted as follows:
"Mr. Madison and his associates pointed out with great force the unreasonable character of the view that the convention intended, without express provision, to give to Congress or the Senate, in case of political or other differences, the means of thwarting the executive in the exercise of his great powers and in the bearing of his great responsibility by fastening upon him, as subordinate executive officers, men who by their inefficient service under him, by their lack of loyalty to the service, or by their different views of policy, might make his taking care that the laws be faithfully executed most difficult or impossible.
"As Mr. Madison said in the debate in the First Congress. 'Vest this power in the Senate jointly with the President, and you abolish at once that great principle of unity and responsibility in the executive department, which was intended for the security of liberty and the public good. If the President should possess alone the power of removal from office, those who are employed in the execution of the law will be in theirproper situation, and the chain of dependence be preserved; the lowest officers, the middle grade, and the highest will depend, as they ought, on the President, and the President on the community.' I Annals of Congress, 499.
"Mr. Boudinot of New Jersey said upon the same point: 'The supreme executive officer against his assistant; and the Senate are to sit as judges to determine whether sufficient cause of removal exists. Does not this set the Senate over the head of the President? But suppose they shall decide in favor of the officer, what a situation is the President then in, surrounded by officers with whom, by his situation, he is compelled to act, but in whom he can have no confidence, reversing the privilege given him by the Constitution, to prevent his having officers imposed upon him who do not meet his approbation?" 1 Annals of Congress, 468.
"Mr. Sedgwick of Massachusetts asked the question: 'Shall a man under these circumtances be saddled upon the President, who has been appointed for no other purpose but to aid the President in performing certain duties? Shall he be continued, I ask again, against the will of the President? If he is, where is the responsibility? Are you to look for it in the President, who has no control over the officer, no power to remove him if he acts unfeelingly or unfaithfully? Without you make him responsible, you weaken and destroy the strength and beauty of your system.' 1 Annals of Congress, 522.
"Made responsible under the Constitution for the effective enforcement of the law, the President needs as an indispensable aid to meet it the disciplinary influence upon those who act under him of a reserve power of removal. But it is contended that executive officers appointed by the President with the consent of the Senate are bound by the statutory law, and are not his servants to do his will, and that his obligation to care for the faithful execution of the laws does not authorize him to treat them as such. The degree of guidance in the discharge of their duties that the President may exercise over executive officers varies with the character of their service as prescribed in the law under which they act. The highest and most important duties which his subordinates perform are those in which they act for him. In such cases they are exercising not their own but his discretion. This field is a very large one. It is sometimes described as political. Kendall v. United States, 12 Pet. 524, at page 610, 9 L.Ed. 1181. Each head of a department is and must be the President's alter ego in the matters of that department where the President is required by law to exercise authority.
"The extent of the political responsibility thrust upon the President is brought out by Mr. Justice Miller, speaking for the court in Cunningham v. Neagle, 135 U.S. 1, at page 63, 10 S.Ct. 658, 668 (34 L.Ed. 55):
" 'The Constitution, section 3, article 2, declares that the President "shall take care that the laws be faithfully executed," and he is provided with the means of fulfilling this obligation by his authority to commission all the officers of the United States, and by and with the advice and consent of the Senate to appoint the most important of them and to fill vacancies. He is declared to be commander-in-chief of the Army and Navy of the United States. The duties which are thus imposed upon him he is further enabled to perform by the recognition in the Constitution, and the creation by acts of Congress, of executive departments, which have varied in number from four or five to seven or eight, the heads of which are familiarly called Cabinet Ministers. These aid him in the performance of the great duties of his office, and represent him *Page 174 in a thousand acts to which it can hardly be supposed his personal attention is called, and thus he is enabled to fullfill the duty of his great department, expressed in the phrase that "he shall take care that the laws be faithfully executed".'
"He instances executive dealings with foreign governments, as in the case of Martin Koszta, and he might have added the Jonathan Robins Case as argued by John Marshall in Congress, 5 Wheat, Appendix 1, and approved by this court in Fong Yue Ting v. United States, 149 U.S. 698, 714, 13 S.Ct. 1016, 37 L.Ed. 905. He notes the President's duty as to the protection of the mails, as to which the case of In re Debs, 158 U.S. 564, 582, 584, 15 S.Ct. 900, 39 L.Ed. 1092, affords an illustration.
"He instances executive obligation in protection of the public domain, as in United States v. San Jacinto Tin Co.,125 U.S. 273, 8 S.Ct. 850, 31 L.Ed. 747, and United States v. Hughes, 11 How. 552, 13 L.Ed. 809. The possible extent of the field of the President's political executive power may be judged by the fact that the quasi civil governments of Cuba, Porto Rico, and the Philippines, in the silence of Congress, had to be carried on for several years solely under his direction as commander-n-chief.
"In all such cases the discretion to be exercised is that of the President in determining the national public interest and in directing the action to be taken by his executive subordinates to protect it. In this field his cabinet officers must do his will. He must place in each member of his official family, and his chief executive subordinates, implicit faith. The moment that he loses confidence in the intelligence, ability, judgment, or loyalty of any one of them, he must have the power to remove him without delay. To require him to file charges and submit them to the consideration of the Senate might make impossible that unity and coordination in executive administration essential to effective action.
"The duties of the heads of departments and bureaus in which the discretion of the President is exercised and which we have described are the most important in the whole field of executive action of the government.
"There is nothing in the Constitution which permits a distinction between the removal of the head of a department or a bureau, when he discharges a political duty of the President or exercises his discretion, and the removal of executive officers engaged in the discharge of their other normal duties. The imperative reasons requiring an unrestricted power to remove the most important of his subordinates in their most important duties, must therefore control the interpretation of the Constitution as to all appointed by him.
"But this is not to say that there are not strong reasons why the President should have a like power to remove his appointees charged with other duties than those above described. The ordinary duties of officers prescribed by statute come under the general administrative control of the President by virtue of the general grant to him or the executive power, and he may properly supervise and guide their construction of the statutes under which they act in order to secure that unitary and uniform execution of the laws which article 2 of the Consitution evidently contemplated in vesting general executive power in the President alone."
In the absence of any specific provision to the contrary in the Constitution of Oklahoma, the power of appointment of executive officers whose duties are to assist the chief executive, the power of appointment to such executive office carries with it, as a necessary incident, the power of removal. The Legislature cannot create an executive office to perform the duties of the chief executive of the state of Oklahoma and make him independent of the chief executive in that he can perform the duties vested in the chief executive by the Constitution of Oklahoma independent of the chief executive.
The attitude of the Presidents on this subject has been unchanged and uniform to the present day whenever an issue has clearly been raised. In a message withholding his approval of an act which he thought infringed upon the executive power of removal, President Wilson said:
"It has, I think, always been the accepted construction of the Constitution that the power to appoint officers of this kind carries with it, as an incident, the power to remove. I am convinced that the Congress is without constitutional power to limit the appointing power and its incident, the power of removal, derived from the Constitution." 59 Congressional Record (June 4, 1920) 8609.
And President Coolidge, in a message to Congress, in response to a resolution of the Senate that it was the sense of that body that the President should immediately request the resignation of the then Secretary of the Navy, replied:
"No official recognition can be given to the passage of the Senate resolution relative to their opinion concerning members of the Cabinet or other officers under executive control. * * *
"The dismissal of an officer of the government, such as is involved in this case, other than by impeachment, is exclusively an executive function. I regard this as a *Page 175 vital principle of our government." 65. Congressional Record (Feb. 13, 1921) 2335.
In the case of Bynum v. Strain, Bank Com'r, 95 Okla. 45,218 P. 883, at page 53, Okla. Rep., this court said:
"Thus it is clear that, in the absence of authority vested in it by law, the judiciary cannot interfere with the policy, judgment, or discretion of the chief executive in matters pertaining to the functioning of the executive department.
"It is unnecessary to decide this case upon the doctrine that the power to remove is an incident to the power to appoint, although the federal courts have uniformly adhered to such doctrine, and in our opinion, the far better reasoned cases from the state courts have concurred in the same doctrine; but it is unnecessary to resort to that doctrine in the determination of this case; the statute has determined it. Neither is it necessary to determine the effect of statutory provisions, which fix the term of office for a definite period of years, for the very provision of statute authorizing a removal for cause precludes the right to hold for the entire term regardless of cause.
"Neither is it necessary to analyze the decisions involving the right of removal from elective offices. The direct question we have before us is the right of the Governor to remove an appointee from an appointive position in a subordinate department of the Governor's special sphere of responsibilities. The Legislature has created the department in question, created the appointive position in question, given the Governor the appointing power, and authorized the Governor to remove the appointee for cause, and furthermore has authorized the Governor to determine the sufficiency of cause. This takes it away from the courts. For the courts to attempt to interfere would be to attempt to exercise an authority which the law has expressly vested in another department of goverment."
Thus it can be seen this court approved the federal rule as was announced in the Myers Case, supra.
We are now asked to set aside this construction because in a heated political difference of opinion the Legislature attempted to create an executive department of government, appointed by the Governor, to hold office at will for a term of six years; and sought to remove from the executive department of government the authority to control said department.
Section 6 of article 4 of the Constitution provides that the term of all executive officers created by the Constitution of Oklahoma, including the chief executive, shall be four years; and further provides that the Governor, Secretary of State, State Auditor, and State Treasurer shall not be eligible immediately to succeed themselves.
So it can been seen, under our Constitution, that all constitutional executive officers must submit their claims to the people at least every four years. There is no executive office provided for in the Constitution which exceeds four years. The right of the people to change their executive officers every four years is a constitutional right, and the attempt on the part of the Legislature to create an office for a longer term is a violation of the public policy of this state and contrary to the Constitution of Oklahoma. If the Legislature may create an executive officer to perform the duties of the chief executive of Oklahoma for a period of six years, them it could be created for sixteen years or for life. Under the law as construed and approved by the majority opinion, a Legislature, drunk With power, could create all executive officers of the state of Oklahoma, boards and commissions now appointed by the Governor, and give them life tenure in office, and it would be beyond authority of the people at the regular elections each four years for state executive officers to change or remove those officers. Of course, they could be removed by initiative and referendum petitions or by amendments to the Constitution or by an act. of the Legislature, but why should the people be compelled to go to that extent to change an inferior executive officer when the chief executive and other constitutional officers can be changed by the people every four years?
The people in 1930 went to the polls and by a large majority elected the executive officers for this state, including the now chief executive, and by their mandate at the polls they reposed in the different officers elected and the chief executive the duties to see that the laws were faithfully enforced and carried out. The delegation to perform the executive duties delegated to them by the Constitution of Oklahoma and the laws of this state.
To say that the Legislature could create a Board of Affairs, a Highway Commission, and assistant Labor Commissioner, assistant State Treasurer or a commission to perform the duties of the State Treasurer, or commission to perform the duties of the Attorney General of this state, and make their terms of office for life, would be to say that the Constitution in creating executive officers must be ignored, and the people's *Page 176 right to change their executive officers stricken down and taken from them.
The office of Attorney General of the state of Oklahoma is a constitutional executive office created and made such by the Constitution of Oklahoma, and as such to perform the duties of the Attorney General. Suppose the Legislature should create eight assistants or eight deputies or eight officers whose duty it would be to perform the duties now performed by the Attorney General's assistants and make their term of office for sixteen years, and provide for their appointment by the Governor, and provide that they could only be removed — not by the Attorney General — but by the courts for cause. Could the Attorney General perform the many duties of his office with such a force — each one exercising the authority of an Attorney General, each one entertaining a different view as to the policy of his office? It does not take a wise man to see that the result would be chaos, and the efficiency of the office would be destroyed.
If the majority opinion is correct, this can be done by the Legislature. In my judgment it would be the quickest way to destroy efficiency and competent government.
It is true that section 1 of article 16 of the Constitution of Oklahoma provides:
"The Legislature is directed to establish a Department of Highways, and shall have the power to create improvement districts and provide for building and maintaining public roads, and may provide for the utilization of convict and punitive labor thereon.
That is all that is said in the Constitution in regard to the Department of Highways. No doubt the writers of the Constitution realized and knew that the Department of Highways would be in the executive department of government. It did not authorize the Legislature to create a separate and distinct department contrary to section 1 of article 4 of the Constitution, which provides that the legislative, executive, and judicial departments of government shall be separate and distinct. It did not mean the Legislature could add to, the three departments of government a Highway Department and make four departments of government.
The act under consideration in providing the term of office of an inferior executive officer and for him to perform the duties of a chief executive is contrary to the Constitution and public policy expressed in our Constitution that all state executive officers' terms shall be four years. It is contrary to section 1 of article 4, which, provides that the powers of government shall be divided into three separate and distinct branches, and as was said in the case of Bynum v. Strain, supra:
"The judiciary cannot interfere with the policy, judgment, or discretion of the chief executive in matters pertaining to the functioning of the executive department."
Since, under our Constitution, the Highway Department must deal with the federal government in matters of constructing highways, the Legislature is without authority to take from the Governor the constitutional mandate that he shall conduct such dealings in person, and vest such power in an appointive executive officer independent of the executive branch of government.
Made responsible under the Constitution for the effective enforcement of the law, the Governor of Oklahoma should not be hampered in the performance of that duty by fastening upon him, as subordinate exective officers, men who by their inefficient service under him, by their lack of loyalty to the service, or by their different views of policy, might make his taking care that the laws be faithfully executed most difficult and in most instances impossible.
To permit the Legislature to encroach upon the executive department of government, and through powerful influences of political ambition to reserve offices at the hands of the Legislature contrary to the will of the people of the state of Oklahoma, and provide that such officers shall perform a part of the duties delegated to the Governor of Oklahoma by the Constitution of Oklahoma, is to destroy the principles of our form of government, and contrary to the genius of a free people.
As far back as the trained eye of the student may examine the Constitution and the principles on which our government is founded, the three departments must be separate, and where they are merged a tyranny will result.
The very principle of our government, section 1 of article 2 of the Constitution of Oklahoma provides:
"All political power is inherent in the people; and government is instituted for their protection, security, and benefit, and to promote their general welfare. * * *"
To create offices beyond the reach of the people at their regular election held for *Page 177 state executive officers is to deny them the rights guaranteed under section 1 of article 2 of the Constitution.
I know of no authority or sound reasoning leading up to such conclusions.
The reasoning throughout the Myers Case was that the Constitution of the United States vested the supreme executive power in the President of the United States, and being vested in the President, that he could not perform those duties if they were to be performed by subordinates over which he had no control.
Section 2 of article 6 of the Constitution of Oklahoma vests the supreme executive power in the chief magistrate, who shall be styled "The Governor of the State of Oklahoma."
Section 8 of article 6 of the Constitution of Oklahoma provides in part:
"(The Governor) shall cause the laws of the state to be faithfully executed. * * *"
Section 3 of article 2 of the Constitution of the United States provides in part (speaking of the President):
"He shall take care that the laws be faithfully executed. * * *"
So it can be seen there is no fundamental difference between the powers of the Governor of the state of Oklahoma, as chief executive, and the powers of the President of the United States as chief executive. It is enjoined upon both of them — one that
"(The Governor) shall cause the laws of the state to be faithfully executed"
— and the other,
"(The President) shall take care that the laws be faithfully executed."
No difference in meaning. No fundamental difference in effect.
Yet the majority opinion says there is a fundamental difference. With this I can not agree, and there is no fundamental difference in division of authority, legislative, executive, and judicial.
It is contended that because our Constitution provided that the Legislature should create a Highway Department, that made a fundamental difference between the Myers Case, supra, and the Wentz Case.
Section 8 of article 1 of the Constitution of the United States provides in part:
"The Congress shall have power *** to establish post offices and post roads.***"
So it can be seen there is no fundamental difference between the Myers Case and the Wentz Case.
The Constitution authorized the post office to be created that Mr. Myers was removed from by President Wilson and said removal was upheld by the Supreme Court of the United States.
The Constitution of Oklahoma authorized the Legislature to create a Highway Department; so there is no fundamental difference there.
Congress of the United States attempted to put the power of removal of Myers in the President and the Senate. The Legisature of Oklahoma attempted to put the removal of Wentz in the courts; therefore in no particular, either constitutional or legislative, is there a fundamental difference.
Therefore, I believe this court should follow the rule in Bynum v. Strain, supra, which followed the federal rule as announced in the Myers Case, supra. This rule leads to wholesome, effective, and constitutional government. This would leave the government conducted for the people by their chosen representatives selected by them at the polls rather than by those who are selected by appointment.
For reasons stated, I cannot agree with the majority opinion.
Note. — See under (3) 22 R. C. L. 562; R. C. L. Pocket Part, title "Public Officers," § 266. (5) 6 R. C. L. 151; R. C. L. Perm. Supp. p. 1631.