This original action, in which a writ of mandamus is sought as against the State *Page 339 Auditor to require of him that he pay the salary claims of two persons, by them filed with respondent and in the sums of $125 and $50, respectively, for services rendered the state as a service officer and secretary, respectively, pursuant to employment under provisions of S.L. 1945, p. 436, was filed in this court September 18, 1945. It was assigned and submitted for an opinion December 12, 1945. By the majority per curiam opinion, mandamus is denied and the act making the appropriation is held to be unconstitutional and void.
Reasons, if any, for the majority opinion had distinct parentage and relations at the time decision was made by the majority, June 28, 1946. But now the opinion, being per curiam, may be considered as of polygamous origin. It is not named. The judgment is a departmental order.
Is it too much to ask of the hermetic conference that judges the rights and liberties of the citizen that the author of the opinion sign his name? And that reason for the judgment in all cases be given in writing at the time of decision?
The constitutional mandate, section 5, art. 7, requires that of the justices, within six months' time after submission of such a cause. Six months is a reasonable time after a cause has been submitted.
Some think determinations may be made by mere orders. Opinions per curiam intended to support such orders. These are huddled up in conclave and handed down by the Chief Justice, or, in his absence or inability to act, by his substitute. Such was the system of the old world when the king ruled by divine right, where the king's court could do no wrong.
But Jefferson gave to the world a reasoned opinion justifying war. That opinion was promulgated at the time of decision; and then a people's government was fashioned in America and a people's government established in Oklahoma. The citizen so unfortunate as to become a litigant was given right as against the government and the Supreme Court, an instrumentality of it, to know the reason why.
This for the purpose that the body of the citizenship might know justice would be administered in their courts; and so the citizen, having means of information, might foretell his fate and without becoming a litigant, regulate his own action and conduct.
The Jeffersonian principle is embedded in the constitutional mandate, supra, and, by another, a remedy shall be afforded for every wrong. For judgment by the court of last resort in each case, it is believed a written opinion in the name of the author is proper and of good taste when such an opinion is, by the majority, adopted in that form. The spirit of independence and of official responsibility suggests that opinions be signed in the name of the justice who prepares them and with a signature, like John Hancock's, so big that even the king can see it.
In my judgment, the majority opinion commits grievous errors in many respects. The majority assumes that the Veterans of Foreign Wars is a private corporation in order to decide that other corporations and societies organized and existing for fraternal, patriotic, historical and educational purposes and to preserve and strengthen comradeship among its members, and to assist them and to perpetuate the memory of the dead and to aid their dependents, are not agencies of the state.
However, had the congressionally incorporated articles before us of the particular organization (74th Congress, 49th Statute, 1390, 1391) been considered, it would be apparent that the purpose of the Veterans of Foreign Wars is to maintain trueallegiance to the government of the United States of America — a public purpose, and fidelity to its Constitution and laws — a desirable state of the Union; to foster true *Page 340 patriotism — so necessary for defense of the state and nation;to maintain and extend the institutions of American freedom — an evangelism of ideology; and to preserve and defend theUnited States from all her enemies, whomsoever — domestic and foreign.
The first sentence of Senate Bill 245, Session Laws 1945, p. 436, is held by the majority to "completely make the appropriation." It would seem certain that if the appropriation under consideration is completely made by the first sentence of the act, no consideration need be given specifications contained in the act. Paradoxically, however, the majority holds that which is completely made to be completely eradicated by the adjudged invalidity of the act. It is my view that specifications of the act also completely make an appropriation. Those specifications are phrased in these words, which provide that a definite sum appropriated "shall beexpended and disbursed on claims approved by . . . the Veteransof Foreign Wars and for the employment of a service officer tobe situated . . . in the regional office of the Veterans'Administration Facilities of Oklahoma. . . ." Riley v. Carter, State Auditor, 165 Okla. 262, 25 P.2d 666.
Poor relations of the majority per curiam opinion are mentioned. Some of these are Murrow Indian Orphans Home v. Childers, 197 Okla. 249, 171 P.2d 600; Children's Home and Welfare Ass'n v. Childers, 197 Okla. 243, 171 P.2d 613; Cope v. Childers, 197 Okla. 176, 170 P.2d 210; Holt v. Childers,196 Okla. 4, 168 P.2d 890; Wells v. Childers, 196 Okla. 353,165 P.2d 371. By the present majority view, in which reference is made to many well-founded decisions, the scrutiny should not be diverted from maladministration by which public monies are extracted from the treasury by a false administration to individuals, associations, corporations and sectarian institutions under the guise of allocations and the existence of contract, in lieu of legislative appropriations.
The founding fathers never thought any money would ever be paid out of the treasury except in pursuance of an appropriation by law, which appropriation, in order to be a legislative act, is required to be introduced as a bill. The act "shall distinctly specify the sum appropriated and the object to which it is to be applied." Section 55, art. 5, Constitution.
Nevertheless, by reason of our decision in Cope v. Childers, public monies from a sequestered lump sum, by a mere gubernatorial allocation to the Soldiers' Relief Commission, are extracted from the treasury and by the Soldier Relief Commission's false administration expended to divers and sundry persons to be employed without limitation as to number or legislative specifications of duties, and for whose employment or designation of duties the Legislature has never made provision. The employment is contrary to statutory law by which the Legislature limited employment to such as might be paid from a specific legislative biennial appropriation for the Soldiers' Relief Commission legislatively and constitutionally made.
According to my expressed views in the Cope Case, the majority were in error. But in the case at bar, the majority "confound confusion," commits another grievous error by its present decision holding void that which is a valid legislative appropriation, definite in amount ($5,000) and specific as to object.
In view of the new order of allocations in lieu of administrative appropriation as made with such general and majority approbation, it is no wonder a legislative appropriation as of yesteryear, in days before governmental administration supplanted constitutionalism, is not recognized; alas, the old order, it is outmoded.
The majority, by per curiam opinion, twice say in the alternative, disjunctive expressions that the public monies appropriated may go either to the Veterans *Page 341 of Foreign Wars or in payment of salaries to individuals. These words are used:
(1) "Expenditure is (to be) made upon claims of the corporation itself, or on claims of its employees exclusively selected and directed by it, with claims approved by the corporation itself through its council of administration."
(2) "That the appropriated money could go in part as the corporation decided . . . or in part payment . . . of salary."
There can be no reason for such confusion or misapprehension. The Veterans of Foreign Wars has made no claim; it has no power of decision, except like unto statutory provision for selection of personnel of the Soldiers' Relief Commission (H.B. 228, S.L. 1945, p. 369), in each instance devoted to the public purpose. The Veterans of Foreign Wars has merely the additional responsibility and power of approval of claims filed by individuals for their salaries as against the appropriation and monies thereof impounded within the State Treasury.
The claims are two in number and are by Archie A. Jones, of Muskogee, service officer, for salary or wage for the month of July, 1945, in the amount of $50, and by Martha Walton, of Muskogee, Okla., as secretary to the state service officer for her salary for the month of July, 1945, in the amount of $125. Both claims are signed by the individuals and verified by them, with organization approval.
The individual claimants have rendered services at the Federal institution at Muskogee, devoted exclusively to the dual State-Federal purpose of hospitalization and rehabilitation of soldiers and sailors sick with service-connected ailments or disabilities incurred in line of duty.
The per curiam opinion, as reflected by paragraph 2 of the syllabus, determines that the public monies appropriated may not be used for the payment of the individuals' salary claims because the purpose of the appropriation is not public though"affected with a public interest" and because the services as performed were not within "the exercise of its governmentalfunctions" "as the Constitution neither authorizes nor contemplates the exercise of governmental functions by any person, association or corporation except . . . constituted officers or agencies of the state."
In the main, unanimous agreement might be had with the novel pronouncement of law in Oklahoma were it not for the poor relations heretofore cited, Children's Home Welfare Association et al. v. Childers and Murrow Indian Orphans Home v. Childers, promulgated by the same majority determination adversely, so that payment to corporate and sectarian institutions for the performance of their individual corporate, sectarian purposes, affected with the public interest but not a part of the public and governmental function performed by state officers or employees nor within state institutions, could be paid monies from the State Treasury; those were not claims, as here, for payment of salaries to individuals.
The majority then and there held such payment not violative of the same section of the Constitution (section 15, art. 10) as would now, within majority view, be violated by payment of services to the individuals. Such versatility in law is by some abhorred. And those who direct such institutions as well as those who enact such statutes might be forewarned by words of the Supreme Court of the United States in Wickard v. Filburn, 63 S.Ct. 82, where it is said: "It is hardly lack of due process for the government to regulate that which it subsidizes" so that "statutes may enlarge the powers of the state to place restraint upon human conduct and endanger civil and religious liberties." Murrow Indian Orphans Home v. Childers, supra.
The corporate state can do nothing *Page 342 by itself; it is an inanimate object. "Governments, like clocks, go from the motion that men give them, and as governments are made and moved by men, so they are ruined too." Benjamin Franklin.
Can it be that the rule of law in Oklahoma, as now made by the majority decision, is such that functions of the state as to eleemosynary institutions, inclusive of orphans' homes, may receive from the State Treasury public monies only when such institutions are owned, maintained, and governed by and through officers, directors, commissioners, agents, and employees of the state? And if so, the majority should have disowned its own brain children born and christened by them June 11, 1946, and heretofore, as to reasoning, cited with contempt.
The majority, to clear the field of law, should have overruled and cut out the underbrush of its own former per curiam opinion and decision of 1926, Board of Education of Oklahoma City v. Thurman, 121 Okla. 108, 247 P. 996, to adhere to the dissenting views therein expressed.
Generally speaking, public officers, in the performance of public duties, must avail themselves of the means as the law has provided, and while such means exist there can be no necessity to imply others. Smith v. City of Scranton, 2 Pa. C. Rep. 331. But the residuum of power in state governments is in the Legislature. The Legislature giveth and the Legislature taketh away. So then, legislatively, an additional facility may be provided in time of emergency as by the act under consideration, for the performance of the governmental purpose. Carter v. Miley, 187 Okla. 530, 103 P.2d 933.
The holding that the purpose is not public seems to be ridiculous.
Will it be denied that in time of war the state has authority to appropriate public monies for the pay and keep of soldiers, or for incidentals such as muskets, bayonets, gun powder, and cannon, or for the care and sustenance of soldiers' and sailors' dependents?
What section of the Constitution prohibits the Legislature from making appropriations with which to fully pay debts that may in whole or in part be due and owing subsequent to the performance of the duty to defend the state in war?
As a general rule, the services of men can only be had by being paid for. "The laborer is worthy of his hire."
The fact is no part of the public money appropriated (S.L. 1945, p. 436) known as the Veterans of Foreign Wars and this is so because the act specifically provides that the funds appropriated for the biennium ($5,000, a very modest sum in comparison with the $30,000 allocated to the Soldiers' Relief Commission with officials selected by the American Legion, and the $100,000 allocated and paid to the corporate and sectarian institutions, Murrow Indian Orphans Home, Children's Home Welfare Ass'n, supra) "shall be expended and disbursed on claims . . . for the employment of a service officer." (That service officer may not devote his time and attention wherever in his discretion or the discretion of patriotic organization, the service officer may be stationed to serve. Contrawise, as to the statutorily prohibited employees of the Soldiers' Relief Commission.) This is a service officer "to be stationed in . . . the Regional Office of the Veterans Administration Facilities of Oklahoma as provided by the Legislature. That service officer the agent, servant and employee of the state.
The important and decisive factor is that, who gets the money?
By law, 62 O.S. 1943 § 93[62-93], the funds appropriated remain in the State Treasury until disbursed on approved claims to the claimant individuals, who must be the service officer and his secretary. These claims are intemized as required *Page 343 by law, 74 O.S. 1941 § 33[74-33], and by law the State Auditor must semi-annually report the claims to the Governor and make biannual report of them to the Legislature. 74 O.S. 1941 § 39[74-39].
This court has recently sanctioned fusion and consolidation of legislative and executive authority. Cope v. Childers, supra; Holt v. Childers, supra; Wells v. Childers, supra.
This court has recently sanctioned consolidation of functions between Church and State. Children's Home Welfare Association v. Childers, Murrow Indian Orphans Home v. Childers, supra, and in each instance there has been, with some vigor, four written dissenting opinions filed. But now the majority have "about-faced." And I deem it my official duty, in the interest of constitutional law and regularity of procedure, to maneuver with equal versatility.
The state and federal governments exist, paradoxically, as it may seem, with a consolidated but divided authority. So to speak, the respective authorities constitute a sovereign state within a sovereign state, inseparably joined in an indestructible Union, and this was so as a result of armed conflict — The War Between the States. That compact, by musket and sword and cannon, was welded and tempered in the red blood of patriots. It may be geometrically described as a circle within a circle. "The Union, it must be preserved." To preserve the Union, it must be defended from foes, foreign and domestic, and that is the public purpose of the public corporation, incorporated by the Act of Congress, the same purpose as that of government. But the Veterans of Foreign Wars is now adjudged by per curiam opinion to be private and the appropriation is held to be without constitutional sanction or for a governmental purpose. The Veterans of Foreign Wars has been authorized to do business in Oklahoma as much so as the Soldiers' Relief Commission. The charter of the Veterans of Foreign Wars, as required by Act of Congress, may be found in the office of the Secretary of State. It is a public corporation devoted to purposes public.
The defense of the Union, even though bypreventative wars, and not of home or fireside character, or in defense of these shores, may be in wars or conflicts upon the seven seas or at the polls or upon foreign battlefields or in the market place or the forum or in a domeless Capitol.
The republic, by preamble of Constitution, is dedicated to the common defense. The common defense contemplates the state, for it is "an inseparable part of the Federal Union," section 1, art. 2, Const. of Oklahoma, and so the nation will defend the state. The state, on its part, also has power and authority to make war, "to repel invasion, to suppress insurrection, or to defend the state in war," section 24, art. 10, Const., Wells v. Childers, supra, and so the state as an inseparable part of the Union may provide defense for it and pay the cost thereof.
Therefore, while in the other four instances the majority erred in sanctioning consolidation of departmental powers of state government, for "neither shall exercise powers properly belonging to either of the others" (sec. 1, art. 4, Const. Okla.), and the majority erred in sanctioning consolidation of the functions of Church and State for "no public money or property shall ever be appropriated, applied . . . or used, directly or indirectly, for the use, benefit, or support of any sect . . . denomination, or system of religion . . . or sectarian institution . . ." (Sec. 5, art. 2, Const.) Again, the majority err in the case at bar because the justices think, though the name of no one of them is at the mast head of the opinion, that the object of the appropriation is not for a public purpose.
Famine, fire, flood, pestilence can be fought by means that may require an *Page 344 organized effort, but such an effort cannot accomplish a greater public purpose than is accomplished by defending the state in war.
In time of war, the state commands. There is no avoiding the performance of the service except by inability, old age, or infirmity. The citizens must obey and the obligation is created in that way. It is not discharged until restoration is made and just compensation is paid. The amount of just compensation to soldiers, sailors, and marines be lessened by hospitalization and rehabilitation of them.
Perpetuation of a government, republican in form, maintenance of free institutions, preservation of the light of civilization are promoted by liquidation or reduction of the public obligation. Whether liquidation of the obligation is afforded in part by accommodating the wreckage of the battlefield to facilities of a hospital or whether it is accomplished by a direct payment of just compensation for life or liberty of the individual taken and damaged, the result to be accomplished by the appropriation and payment of it is a public purpose.
Vette v. Childers, State Auditor, 102 Okla. 140, 228 P. 145, relied upon, does not involve the issue at bar. That appropriation was in the amount of $1,250,000 to be invested in first mortgage bonds of warehouse property, owned and operated by Farmers Co-Operative Association, a business association operated for profit. That decision is based on Loan Ass'n v. Topeka, 20 Wall. (U.S.) 655, 22 L.Ed. 445, relating to a bonus provided by bonds issued within the letter of the law, to be given to a railroad corporation to induce it to serve the city of Topeka with its facilities and not to by-pass the city nor by collusion to compete with it. The Supreme Court of the United States, as to the levy of taxes to pay the bonus bonds, held it was nonetheless robbery that it was done under the guise of law. The purpose was not public. Governments do not exist to take from all to enrich by gift a few. Payment from public money for services rendered for a public purpose, unless prohibited, may and should be made.
Carter, State Auditor, v. Thomas, 172 Okla. 588,48 P.2d 460, is not decisive of the case at bar, for there the services rendered were not within provisions of law nor were they rendered in contemplation of an appropriation with which to pay for the services. The services were rendered as a result of the usurpation of an office which had been vacated by force applied by rule exerted under an executive order and decree by a violent, despotic Governor.
"I am up. Here I stand, knowing proprieties of place and especially of time are bugbears which terrify mankind from the contemplations of the magnificent. Once I was myself a decorist but that sublimation of folly palled upon my soul." (Bussy D'Amboise, Chapman's.) This is now fitter for the purpose of the state, for with assault at Hiroshima, Nagasaki, an experimentation at Bikini, we have "unlocked the gate to Hell and our shoulders must be held against it." No lesser man than Einstein finds security only in the hearts and minds of men. The prompt action of courts to administer justice may stay the destruction of lives and liberties.
Where the purpose is not public, appropriations may not be made or paid. Detroit Museum of Art et al. v. Engle, 187 Mich. 432, 153 N.W. 700; St. Louis School and Museum of Fine Arts v. City of St. Louis, 216 Mo. 47, 115 S.W. 534. But this does not mean that services of an individual may not be remunerated from funds of an appropriation when the services are devoted to a governmental duty and not by law prohibited as contrary to a public policy. Murrow Indian Orphans Home v. Childers, supra; Carter, State Auditor, v. Riley, 187 Okla. 530, 103 P.2d 933.
The state, acting in its sovereign capacity, *Page 345 has right and power to employ an individual to perform a governmental duty, and unless by specific constitutional restriction the state is prohibited from appropriating or paying from public funds, a consideration for the performance of the duty, provision by the people or their agency, the Legislature, with which to pay for such services, is a valid appropriation.
In the Miley Case this court sustained the employment of an attorney, in the absence of an attorney by law provided for the state Highway Commission, and payment to him of public money for his hire. In Board of Education of Oklahoma City v. Thurman, the view was expressed that no attorney could be employed where by statute the duty devolved upon an officer existing and paid to do that duty.
The words of the Constitution govern. No court may properly delete words or meaning of a Constitution; the rule stated, however, does not apply to a mere statute. As an exhibit governs a pleading, so do specifications of a legislative act govern it. Therefore, words of a statute may be deleted when measured by a constitutional prohibition. Idle words of S.L. 1945, p. 436, saying the appropriation as made to the V.F.W. could be held void and so stricken from the act, for reasons now satisfactory to the majority. However, the phrase contained in the act, specifying the amount appropriated "shall be expended and disbursed on claims . . . for the employment of a service officer . . ." constitutes an appropriation as much so as the words "shall be paid" "monthly" "a fixed amount" constitute an appropriation without any act of the Legislature, because these expressions were contained in the Constitution itself and were quite sufficient in themselves to appropriate money with which to pay the salary of the justices. Riley v. Carter, 165 Okla. 282, 25 P.2d 666, 88 A.L.R. 1018.
The majority is confused by deciding that prohibitions of Constitution which should and do restrict the appropriation or payment of any public money to corporate or sectarian institutions has application to the payment of claims filed by these individuals who labor for the public purpose, state and federal, and as agents and employees of the state selected by the patriotic organization.
The Attorney General makes no contention in brief or in oral argument that the appropriation is not for a public purpose; to the contrary, on behalf of respondent, the State Auditor, that issue is specifically omitted and it is so stated in briefs filed. Nevertheless, the majority seize upon the omission to commit the grievous error.
Expenses such as incurred in providing manpower defense of the nation and through the War Department, an agency of federal government the state in time of war, are for a public purpose.
When, in time of war, it becomes necessary to take property and use it without at the time paying compensation, a statute subsequently enacted appropriating money for the payment of just compensation for property thus taken is an appropriation for a public expense and for a public purpose.
Military services of persons, whether that service be voluntary or selective, is equivalent to property taken for the public purpose.
All persons have an inherent right to life and to the pursuit of happiness and to the enjoyment of the gains of their own industry. But for the good of all, by government, citizens are to be let alone, for their private purposes, whether of gain or loss. Section 2, art. 2, Constitution. "No person shall be deprived of life, liberty or property without due process of law." Section 7, art. 2, Constitution. When the individual's life, liberty or property is taken or damaged for public use, due process contemplates payment or just compensation. *Page 346
If it be admitted that to defend the state in war, when war is declared, the citizen's army may be paid, would it not be admitted that for such duty done, defenders of the state may be paid subsequently by appropriation made for the specific purpose? If, then, direct payment for military services may be made, pending or subsequent to performance, and if it be admitted that the compensation to be paid must be adequate, can it be maintained that legislative provision must be declared void when its public purpose is to secure the services of a person or a couple of them (a service officer and his secretary) qualified by training to aid the state and veterans in reducing the amount of compensation due the veterans by affording the veterans hospitalization and rehabilitation or the bounty of a just and generous federal government?
I condemn the decision. A wag once said, "the law is an ass"; be it known that so far as this decision is the law, it can claim no dissent from me. Nor is the father of it named.
Since by the text of the act the Veterans of Foreign Wars, a corporation, though public but incorporated by Act of Congress, receives no part of the money appropriated, the fact that it is a corporation is wholly immaterial as is the fact that the service officer is selected by it comparable to the manner of selection by the American Legion of the Soldiers' Relief Commission.
When services are had for a public purpose, pursuant to contract express or implied, such services constitute a consideration justifying an appropriation with which to pay for such services. These services rendered and for which claims are made were not accepted or rendered voluntarily, but in view of an act specifying the purposes to be paid and making an appropriation with which to pay for the services contracted and now rendered. The appropriation does not offend the provision of the Constitution prohibiting gifts from the state.
Were the appropriation not definite as to amount and object, the sophistry heretofore included and often repeated at the expense of the state, conducive of graft and corruption as to lump sum appropriations and revolving funds, would suffice to save the act from invalidity. Edwards v. Childers,102 Okla. 158, 228 P. 472; In re Funding Bonds, 173 Okla. 622,50 P.2d 221.
Though the Constitution says so, section 55, art. 5, the appropriation need not distinctly specify the sum appropriated or the object of expenditure, for that which by administration and accounting may be subsequently rendered certain, by court decision will be considered as certain at the time the appropriation bill becomes an act. The decisions were not always so. Menefee, State Treas., v. Askew, 25 Okla. 623,107 P. 159, 27 L.R.A. N. S. 537.
A gift is a voluntary transfer of property made or voluntary services rendered without binding consideration. The services rendered in the case at bar were in reliance upon an appropriation made. They did not constitute a gift. Section 17, art. 10, Constitution. Nor does the appropriation with which to pay for the services rendered constitute a gift if from the monies appropriated the debt were paid. Mandamus is the proper remedy to enforce payment of the debt. The writ should issue.
These services were had for the public purpose of discharging an obligation arising by reason of war service rendered by some in the defense of all, a defense protecting our property, our liberty and our lives.
The purpose of the appropriation and the public purpose of the services secured by the act and by the persons rendered, is not only a public one and therefore governmental, the services were in defense of institutions of all *Page 347 kinds, inclusive of the corporate state and the people's courts.
"He who saves his country, saves all things, and all things saved bless him; he who lets his country die, lets all things die, and all things dying curse him." Defense by organized society is now and always has been a public purpose. Nothing can be more public, as none are so blind as those who will not to see.
Hawks v. Bland, 156 Okla. 48, 9 P.2d 720, relied upon by the per curiam opinion, flowed from my pen. The impulse behind that pen should know better than the inanimate per curiam opinion, its limitation and present applicability.
Though these proceedings have long been pending and petitioner has awaited decision three times longer than the Constitution contemplates, other proceedings have been disposed of with dispatch. Absent and acquiescent justices would not hear dissident views, to confuse.
It may be time is not adequate for proprieties or due process of law.
Alors, Kipling, in his "If" evidenced knowledge that the warping of one's words could make one (Hawks v. Bland) to "crie alarme against . . . proud ignorance wherewith many . . . countryman are absurd." Waugh's Champion.
Goethe says:
"Oh, that there are so many senses, That bring confusion into happiness."
The poet could not have been thinking of a dissident jurist nor of justices major when he added:
"When I see you, I wish I were deaf, And when I hear you — blind."
Howbeit, whether Justicia is deaf as well as blinded to the balance struck, there are those of us who can repeat Solomon's prayer, and, repeating, have growth in knowledge of law.
"Give me a mind which understands, Just wise enough to know, The good from evil always That others I may show."
For these reasons I dissent.