(dissenting).
I cannot concur with the majority opinion. I agree that the purposes of laws like our Merit System Law, or Act, (Tit. 74, O.S.1959, Supp., Secs. 801-819, both inclusive; Tit. 74, Chap. 26, S.L.1959) are good; and, in accord with our duty toward all legislative enactments, should be tipheld if they do not clearly conflict with the Constitution. In my opinion, however, there is one provision of the Act in. question, which unmistakably does violence to the oldest. principle of constitutional government in this State and Nation, namely, the separation of powers.between branches of Government. The majority opinion glosses over this breach of fundamental principle with generalities, and makes an inadequate and unconvincing attempt to distinguish this case from the only court decisions that are really in point. _ .
The Insurance Department .was established by the Oklahoma Constitution, art. VI, sec. 22. The Commissioner of Insur-anee is one of the elected state officials, in whom said document vested, along with the-Governor, “The Executive authority of the-State” (Ibid. sec. 1). He is the “chief officer” of the Insurance Department, (Ibid., sec. 23); and among the duties prescribed’ for him at an early date by legislative enactment, pursuant to constitutional mandate-(Ibid. sec. 24) was that of selecting the personnel for that office. R.L.1910, sec. 3409,. which was in force more than 40 years and appears in the 1951 Oklahoma Statutes as. Tit. 36, sec. 43, provided:
“The Insurance Commissioner may * * * employ such clerks and assistants as the public business in his charge may require, which * * * shall be removable at * * * (his) * * * pleasure * * *; * * * ”
The present law (Tit. 36 O.S.1957, and 1959, Supp. sec. 305) enacted in 1957, provides :
“A. The Insurance Commissioner may appoint such deputies, assistants, examiners, actuaries, attorneys, clerks and employees, at salaries to be fixed by the Insurance Commissioner, as may be necessary properly to discharge the duties imposed upon the Insurance Commissioner under this code. * * * »
As will be noted from the above-quoted statute, the Legislature has, by said enactment, vested in the Insurance Commissioner the exclusive prerogative of selecting thc-employees of the department of government, of which he is the chief officer.
Under the Merit System Law enacted in 1959, supra, the selection of personnel for state departments or offices, subject to being brought under its operation (except certain categories specifically exempted and not material here) is far from being the unfettered prerogative of the heads of those departments or offices. Employees under-said Act are referred to as being in “classified service” and can obtain and keep positions only as prescribed by said Law, which is administered by the State Personnel Board, and a State Personnel Direc*210tor selected by it. A duty of said Board, as prescribed by sec. 805(2) of the Act, is to:
“Adopt * * * or establish such rules and regulations as may be necessary to give effect to the merit system * * *. Such rules and regulations shall include provision for the establishment and maintenance of classification and compensation plans according to their respective duties and responsibilities, the conduct'of examinations to determine by competitive performance exclusively on the basis of merit, efficiency and fitness, the qualifications of- all candidates for positions in the classified services, the establishment of registers of persons eligible for appointment under the merit system, the certification of eligible persons, appointments, promotions, transfers, demotions, separations, tenure, reinstatement, appeals, service ratings, payroll certification, and make rules and regulations covering all classified personnel transactions, and regulate all conditions of employment included within the terms of this act * * (Emphasis mine.)
The Act also contemplates, in said section, that the Board will make provision for temporary appointments. The act also provides, in its section 812, that the State Personnel Board shall, by rule, establish a procedure for the “suspension, reduction in pay, demotion, and discharge of employees in the classified service * * for certain causes specified therein. It also provides procedure for review, by the Board, of such personnel action.
For the employment of persons in offices brought under the Merit System or classified service, sec. 811 of the Act provides:
“Under the supervision of the State Personnel Board the Personnel Director shall be responsible for the conduct of such promotional and competitive examinations and entrance examinations as may be necessary and required under this Act. Such examination shall be of such character as to determine the qualifications, fitness, and ability of the persons tested to perform the duties of the class of positions for which such tests or examinations are given. * *
Section 808 provides:
“(2) An employee who shall have been employed for less than- two years on the date the position in which he is so employed is made subj ect to the provisions of this Act shall be required to pass such tests or examinations and comply with such rules and regulations as may be required by the State Personnel Board before obtaining a status within the merit system and any such employee who fails to so qualify shall be discharged immediately and shall not be re-employed until he has so qualified. * * *. (Emphasis mine.)
Section 810 provides:
“No state disbursing or auditing officer shall make or approve or take any part in making or approving any payment for personal-service to any person holding a position in the state classified service, * * * unless the payroll voucher or account of such pay bears the certification of the Director, or of his authorized agent, that the persons named therein have been appointed and employed in accordance with the provisions of this Act and the rules, regulations, and orders promulgated hereunder. The director may for proper cause withhold certification from an entire payroll or from any specific item or items thereon. * *
Without quoting in further detail, the numerous provisions of the Merit System Law creating personnel restrictions, administered and enforced exclusively by the State Personnel Board and State Personnel director, it is plain that, though the Law itself does not directly, or by reference, repeal, and/or amend, Tit. 36, sec. 305, supra, the bringing of the Insurance Department and Office of Insurance Commissioner under its operation, would do so. Yet, instead of retaining this prerogative of repealing, or amending previous laws, in itself, the *211Legislature has purported to hand it over, wmiout restriction, or standard to go by, to the Governor, or Chief of the executive branch of our government, by providing in sec. 802 of the Act:
“ * * * The Governor of the State of Oklahoma, upon determining that the merit system of personnel administration with the rules and regulations adopted thereunder should be required, is hereby empowered and authorized, at his discretion, by an Executive Order, to place any agency or department of the State Government, and the employees thereof, with exempt positions as stipulated by said order, under the merit system of personnel administration prescribed by this Act and the rules and regulations promulgated hereunder by the. State Personnel Board. * * (Emphasis mine.)
By this Section, the Legislature has not only enabled the Governor to drastically amend, or — from a' practical standpoint— to virtually emasculate, or repeal the here-inbefore cited Law giving the Insurance Commissioner the right to select various categories of employees and assistants he considers necessary, but it has purported to surrender to said Chief Executive (under administration of the State Personnel Board and the State Personnel Director) the power of determining (by executive order, supplemented by administrative rules and regulations) what shall be the “law” with reference to at least part of their duties, and the conditions, under which they shall work and retain their positions. To paraphrase an expression of the court in Hernandez v. Frohmiller, 68 Ariz. 242, 201 P.2d 854, 862: Legislation may pass to state officials, or boards, the power to find facts or conditions properly prescribed under which the law,' as enacted, will, or will not operate, but it may not permit them “to say zvhat the lazo shall be.” The latter is a legislative function. In the cited case (204 P.2d at page 863) the court quoted the following from Holgate Bros. Co. v. Bashore, 331 Pa. 255, 200 A. 672, 674, 117 A.L.R. 639:
“The well recognized prohibition against the delegation of legislative power is a necessary outgrowth of the fundamental theory of the separation of governmental functions which permeates our State and Federal Constitutions alike.
******
“The legislature may, however, leave to administrative officers, boards and commissions, the duty to determine whether the facts exist to which the law is itself restricted. In all such occasions, nevertheless, the legislative bbdy must surround such authority with definite standards, policies and limitations to which such administrative officers, boards or commissions, must strictly adhere and by which they are strictly governed.” (Emphasis mine.)
As to the power vested in the Governor by the Merit System Law, the same things can be said here that were said of the power given the Department of Labor and Industry, by the legislation involved in the Holgate Bros. Co. case. There is no policy set up, there are no standards, and — except for exemptions from the Act — there are no boundaries within which the Governor must exercise his discretion. There is merely the naked authority given him to make new law by altering, amending, and virtually repealing the old, but still existing, law (Tit. 36, sec. 305, supra), which gives the Insurance Commissioner exclusive control of the employees of the department of which he is executive head, or chief officer. ■ As said in the quoted case: The power to amend, or repeal, a statute is as much legislative in nature, as the power to enact it. The Plernandez case' also quotes Kellerman v. City of Philadelphia, 139 Pa.Super. 569, 13 A.2d 84, 86, as follows (20 1 P.2d at page 863):
“But any legislative enactment which vests in a person or body of persons free of any standard independent of his or their own mind and judgment the power of supplying, or giving force to, or suspending its terms " falls beyond *212the limits of judicial approval evidenced in the foregoing authorities, and is unconstitutional as a delegation of the power reposed exclusively in the legislature. '* * (Emphasis mine.)
In Ahlgren v. Cromwell, 179 Md. 243, 17 A.2d 134, 136, the court applied the same fundamental tenet of separation of powers, upon which the Hernandez case was bottomed, in a case, which on principle, is no different from the present one. That case involved the positions of State House watchmen at the Maryland State Capitol. Sec. 59 of Article 41 of an Act of that State’s legislature of 1906, Code Pub.Gen. Laws 1924, art. 41, § 59, provided that its Governor should appoint persons to those positions. Similar to our sec. 802, supra, that State’s Merit System Act of 1920, in its section 21, chapter 41, contained the following provision:
“The Governor, may, by executive order, from time to time, add to the classified service such offices and places of employment * * * not includ- • ed in the classified service * ■ * * as he may think advisable; * * (Emphasis mine.)
After passage of the cited law, Maryland’s Governor Ritchie, in an exercise of the authority given him by the quoted section, issued an executive order bringing State House watchmen under said Merit System. In 1937, Ahlgren took the examination scheduled under said Law for the position, passed it, was then certified for appointment, and was appointed State Plouse Watchman, in which employment he served until nearly mid-year of 1940, when he was discharged, by order of the Govern- or on the theory that his position never was rightfully under the Merit System, and that therefore he was removable, (without preferment of charges) by said Executive. Ahlgren then petitioned the Circuit Court for a writ of mandamus to compel Cromwell, the State’s superintendent of public building and grounds to reinstate him. The court sustained said defendant’s demurrer to Ahlgren’s petition, and held the herein-before section 21, chapter 41 invalid.
In upholding the Circuit Court’s action, the Maryland Supreme Court said:
“Section 59, article 41 of the Code, (Act of 1906)' which provides for the appointment of watchmen by the Governor, is an Act of the Legislature, as is chapter 41 of the Act of 1920, * * and there is nothing in the Act of 1920 which expressly or by implication repeals it, unless the delegation of power in the Governor by section 21 is to' be so construed. What this section does, if' valid, is not to disturb section-59 of article 41, by the Act of 1920, but to give the Governor the power to recognize and follow it, or to repeal it at his pleasure; in other words, so far as section 59'is concerned, grant to the' executive power tb legislate. It was' a legislative act to adopt the provision, for the appointment of the watchmen; . it requires action by the Legislature to repeal or amend it, * * *.
“Article 8 of the Declaration of Right says : ‘That the Legislative, Executive'and Judicial powers of Government ought to be forever separate and distinct from each other; and no person exercising the functions of one of said Departments shall assume or discharge the duties of any other.’ To enforce section 21, chapter 41 of the Act of 1920, would be a violation of the Declaration of Rights. As we said in Bradshaw v. Lankford, 73 Md. 428, 21 A. 66, 11 L.R.A. 582, 25 Am.St.Rep. 602: ‘By the constitution of this state the power to enact laws belongs to the general assembly, composed of the senate and the house of delegates, and this being so, it is a well-settled principle of constitutional law that the power thus delegated cannot be redelegated to the people themselves. Our government is a representative government, and, to the members of the general assembly, the people have confided the power to pass such laws as they, in the exercise of their judgment, may deem best for the *213public interests, and they have no power to substitute the judgment of others in matters of legislation for the judgment of those to whom this sovereign trust has been committed.’ * *
There is no difference, that is material here, between the separation of powers enjoined upon this State, by its Constitution .(Okl. Const., art. V, Sec. 1; art. VI, sec. 1) and that described in the Maryland Declaration of Rights. Nor is there any such difference between the broad power to legislate which that State’s 1920 Merit .System Law purported to give its Chief Executive, and that which section 802, supra, purports to give our Governor. In accord with the foregoing principles I can only conclude that said section, as it may be Used to bring the Insurance Department and office of Insurance Commissioner under operation of the Merit System Law is unconstitutional as an unlawful delegation of legislative power to repeal and/or amend Tit. 36, sec. 305, supra.
As will be noted from the majority opinion, it attempts to distinguish the above described Maryland case by placing undue emphasis on the fact that the Maryland Act’s above quoted Section 21 was contrary to its Section 2, (vaguely referred to therein as “a special statute”) which specifically excluded State House watchmen from the Act’s operation. A reading of the Maryland Court’s opinion, however, readily shows that no such emphasis was therein given that fact, and that the opinion turned upon the fact that the Maryland Governor’s Executive Order purporting to extend that State’s merit system to State House watchmen constituted an attempted exercise of exclusively legislative power to repeal the earlier Act of 1906 (that had become Section 59, art. 41 of that State’s Code.)
My view of the only constitutional question dealt with herein would render null and inoperative an attempt, by an executive order such as Section 802, supra, purportedly authorizes, to subject the office of the Commissioner of Insurance and the Insurance Department to operation of the Merit System Law. This view, however, would not affect other provisions of the Act, because of its “saving clause” (Sec. 21, Chap. 26, supra). Nor would my view of the unconstitutional operation of such an order, as applied to the offices here involved, necessarily apply to other State offices with different legislative and constitutional situations or backgrounds. I would affirm the trial court’s judgment granting the injunction on the ground that, as . applied to the office of the plaintiff and the Insurance Department, Section 2 of House Bill No. 531 (Tit. 26, S.L.1959) enacted by the 27th Legislature as a Merit System Law (Tit. 74, O.S.1959 Supp., sec. 802)- contains an unconstitutional grant of. legislative power to the Governor.
I therefore respectfully dissent to the majority opinion.