(dissenting).
I do not question the power’ or authority of our Legislature to enact legislation establishing a merit system for State employees; nor do I question the propriety, desirability or wisdom of the Act under consideration; but I do question the constitutionality of the Act in so far as the same is operative arid/or applicable to the offices of the State Insurance Commissioner and the State Insurance Department for the reason the Act attempts an unlawful delegation of legislative power as it authorizes and empowers the Governor, in his discretion, to amend and/or repeal certain statutory provisions relating to those offices. • '
In my opinion, there are basic and fundamental differences between the Act in question and other acts wherein the Legislature delegated to an administrative agency the power and authority to adopt the necessary rules and regulations to carry out the law enacted by the Legislature. The distinguishing features between the acts are: In the Act under consideration, the Governor, in his discretion, is authorized and empowered to determine, (1) if and when the Act is to become operative and applicable to any agency or depart*214ment of government, (2) which agency or department the Act will be operative or applicable, (3) whether any agency or department will continue to be governed by existing laws or will the existing laws be amended and/or repealed and the Act to become operative in lieu of such laws amended and/or repealed. In the other acts, the legislative enactments are operative and applicable, (1) at a certain time, (2) to specific or all like agencies, departments or industries, (3) and does not delegate to an administrative agency the power to determine if certain laws shall be amended and/or repealed.
In my opinion, the authorities sustaining those legislative enactments are not applicable and do not sustain the fundamental issue involved in this case. As an example, the power to delegate authority to an administrative agency to adopt rules and regulations to carry out a legislative enactment was sustained in Associated Industries of Oklahoma v. Industrial Welfare Commission, 185 Okl. 177, 90 P.2d 899, 901, where we held:
“Power to determine the policy of the law is primarily legislative, and cannot be delegated whereas the power to make rules of a subordinate character in order to carry out that policy and. apply it to varying conditions, although partaking of a legislative character, is in its dominant aspect administrative and can be delegated.”
In that case we construed the Minimum Wage Law Act wherein the Legislature cr'eated'the Industrial Welfare Commission and delegated power and authority to the Commission to promulgate rules and regulations to carry out the Act. That act did not amend.and/or repeal any existing laws; it did not leave to the Commission the power to determine to what industries, the act would be applicable but the same was applicable to all industries; and, the operative force and applicability of the act was not discretionary. In the Act under consideration, if and when the act becomes operative or applicable, certain existing laws are amended and/or repealed; all agencies or departments of government are not under the Act, only those placed there by Executive Order; and, the operative force or applicability of the Act as to any agency or department is within the discretion of the Governor.
The powers delegated to the Commission in the Minimum Wage Law Act are similar or comparable to the powers delegated to the State Personnel Board under the act in question; that is, to promulgate rules and regulations to carry out the legislative enactment. I do not question the authority of the Legislature to delegate to the State Personnel Board the power and authority to promulgate rules and regula-ations to carry out the Act, but I do question the means by which the Legislature has attempted to make the Act and the' rules and regulations of the State Personnel Board operative and/or applicable to any agency or department of government, which is by Executive Order. Therefore, I believe the fundamental issue involved in this action is whether or not the Legislature has delegated to the Governor, in his discretion, the power and authority to amend and/or repeal certain laws governing the operation of the offices of the State Insurance Commissioner and the State Insurance Department.
In the order granting the permanent injunction the trial court made, inter alia, the following finding:
“Title 74, O.S.A., Chapter 27, in so far as the same is attempted to be applied to the offices of the Insurance Commissioner of the State of Oklahoma, and the Insurance Department of the State of Oklahoma, is unconstitutional.”
Our Constitution provides that the powers of our government shall be divided into three separate departments; the Legislative, Executive, and Judicial; and each shall be separate and distinct, and neither shall exercise the powers properly belonging to either of the others.
*215For brevity, I adopt the statements set forth in the dissenting opinion of Justice BLACKBIRD relating to the constitutional and statutory duties and prerogatives of the State Insurance Commissioner.
Title 74 O.S.1959 Supp., Secs. 801 to 819, establishes the Merit System of Personnel Administration. Section 801 of the Act, provides for the extension of the merit system to the employees of the State agencies or departments as the Governor may direct by an Executive Order. Section 802, empowers and authorizes the Governor, in his discretion, to place any agency under the merit system upon determining that the same should be required, and the Act cannot be extended to any department or agency except by Executive Order.
Although the Act has a “repealing clause” which provides, “Any and all other acts or parts of acts, not herein specified, which are in conflict with any of the provisions of this Act, are hereby repealed,” the offices of the State Insurance Commissioner and the State Insurance Department are not governed by the Act until the Governor, by Executive Order, places them under the Act. Until the Governor does issue an Executive Order, applicable to the State Insurance Department and/or the State Insurance Commissioner, each are governed by the laws existing when the Act was passed and the valid rules and regulations of those departments, and no portion of the Act or any rules and regulations of the State Personnel Board are applicable. This is specifically set forth in the Act. Section 801 provides, “for the extension of the merit system to the employees or such other state agencies or departments as the Governor may direct by Executive Order.” Section 802 provides, “The Governor * * * upon determining that the merit system * * * should be required, is hereby empowered and authorized, at his discretion, by Executive Order, to place any agency or department * * * under the merit system * * *. Notwithstanding any provisions to the contrary, this Act shall not be extended to any department, agency or employee, except in the manner and as provided in this section. * ⅜ *»
In as much as the Act does not mention the State Insurance Commissioner or the State Insurance Department and does not specify that all agencies or departments of government shall be placed under the Act, the only means by which this Act can be extended to the offices of the State Insurance Commissioner and the State Insurance Department is by Executive Order. The present laws relating to the administration of those offices are not amended and/or repealed by operation of the Act itself but by virtue of an Executive Order, and the Act and the rules and regulations of the State Personnel Board are not applicable to those offices by operation of the Act, but by virtue of an Executive Order authorized by the Act. Therefore, the Act is neither operative nor applicable to the offices of the Insurance Commissioner and the State Insurance Department until the Governor, by Executive Order, extends the provisions of the Act to those offices.
In effect, the Governor, in his discretion, determines if the offices of the Insurance Commissioner and the State Insurance Board will continue to be governed by the existing laws or whether the existing laws should be amended and/or repealed and the Act become operative. The Legislature certainly did not make this determination, but delegated to the Governor the power and authority to do so in his discretion.
Without question, the power to enact new laws or to amend existing laws is a legislative function and cannot be delegated, and the power to execute and administer laws, enacted by the legislature is an executive or administrative function. The distinctions between such powers cannot be carried out with mathematical precision, but there may be a certain degree of blending of powers. While the Legislature may delegate to the executive or administrative departments some powers it may rightfully possess; it may not delegate the power to make a law, which involves a discretion as to what it shall be, although it may .confer upon the executive officers *216discretion as to its execution, to be exercised under and pursuant to law. See Bailey v. State Board of Public Affairs, 194 Okl. 495, 153 P.2d 235.
The extent to which the Legislature may go in delegating the powers to an administrative board to make orders that are legislative in character, without offending constitutional inhibitions, has been the subject of much judicial discussion. In Harris v. State, 207 Okl. 589, 251 P.2d 799, we held:
“The Legislature cannot delegate legislative power, but it may delegate authority to be exercised under and pursuance of law. It may delegate power to determine some fact or state of things upon which the law makes its own operation depend.”
In the second syllabus of the opinion promulgated by a majority of my associates, it is held:
“Power to determine the policy of the law is primarily legislative, and cannot be delegated, whereas the power to make rules of a subordinate character in order to carry out that policy and apply it to varying conditions, although partaking of a legislative character, is in its dominant aspect administrative and can be delegated and the Legislature may delegate the power to determine some fact or state of thing's upon which the law makes its own operation depend.”
In State ex rel. Anderson v. Fadely, 1957, 180 Kan. 652, 308 P.2d 537, 540, which was cited with approval in the majority opinion, the Kansas Supreme Court held:
“The legislature may "not delegate its powers to make laws but it may enact a law in general terms which confers upon an officer or board administrative duties to enforce and apply the law, and, to accomplish that end, to ascertain the existence or- nonexistence of some future fact, event or condition which the officer or board is required to ascertain-; but, the statute must prescribe reasonably clear standards by which those vested with the duty to-make the statute operate will do so in the manner intended. * * * ”
See also Hernandez v. Frohmiller, 68 Ariz. 242, 204 P.2d 854; Wells v. Childers, 196 Okl. 339, 165 P.2d 358; Gibson Products Co. of Tulsa v. Murphy, 186 Okl. 714, 100 P.2d 453; Schechter Poultry Corp. v. United States, 295 U.S. 495, 55 S.Ct. 837, 79 L.Ed. 1570, 97 A.L.R. 947, and Panama Refining Co. v. Ryan, 293 U.S. 388, 55 S.Ct. 241, 79 L.Ed. 446.
In examining and analyzing the above-cases and the cases cited with approval in-the majority opinion, in my judgment, it has been clearly established that it is an unlawful delegation of legislative authority for the Legislature to delegate the power to amend and/or repeal a law which necessarily involves a discretion as to what the law shall be; but it is not an unlawful delegation of legislative authority for the-Legislature to delegate the power to determine some fact or state of things upon, which the law makes its own operation depend.
It cannot be contended that if and when the Act becomes operative and/or applicable to the offices of the State Insurance-Commissioner and the State Insurance Department that certain laws relating to those offices will not be amended and/or repealed, and it cannot be contended that the laws-relating to those offices are amended and/or repealed without the Governor issuing an Executive Order applicable to those offices. Therefore, has the Legislature amended' and/or repealed the laws relating to those offices and merely delegated to the Governor the power to determine some fact or state of things upon which the Act makes its own operation depend; or has the Legislature delegated to the Governor the power to amend and/or repeal certain laws relating to the offices of the State Insurance Commissioner and State Insurance Department? No'valid objection can be made to the first, the latter cannot be done.
The Act is not operative nor applicable to the offices of the Insurance Commissioner and the 'State Insurance Department *217mntil the Governor issues an Executive ■Order placing them under the Act. No laws relating to those offices are amended and/or repealed until he issues the order. The Act is barren of any standard or rule to be followed and contains no provisions that the Governor determine certain facts, circumstances, state of things or specific situations be in existence or non-existent before issuing an Executive Order. The policy set forth in the Act is a standard and guide to the State Personnel Board for the purpose of promulgating the necessary rules and regulations for carrying out the Act, but it is not a standard or guide for the 'Governor in determining if and when the Act should become operative and applicable to the offices of the State Insurance Commissioner and the State Insurance Department. Section 809, (referred to in the majority opinion as Section 9) is not a standard or guide for the Governor to determine the applicability of the Act to the State Insurance Commissioner or the State Insurance Department, as that section relates specifically to and only to the employees of the -Oklahoma Employment Commission, the Oklahoma Crippled Children’s Commission, the Oklahoma State Department of Health, and the Oklahoma State Department of Public Welfare. In my •opinion, there is no standard or guide for the Governor to follow, as the language of the Act is clear and unambiguous, that up■on determining that the merit system should he required, he is empozvered and authorized, at his discretion, by Executive Order, to place any agency of State government under the merit system.
In my opinion, the Legislature did not amend and/or repeal certain laws relating to the offices of the Insurance Commissioner and the State Insurance Department and merely delegated to the Governor the power to determine some fact or state of things upon which the Act would become operative; but has attempted to delegate to the Governor, in his discretion, the power and authority to amend and/or repeal certain laws relating to those offices. Entertaining such opinion, I can only conclude that the Act is unconstitutional in so far as the provisions thereof may be operative and/or applicable to the offices of the State Insurance Commissioner and the State Insurance Department.
I therefore respectfully dissent to the opinion promulgated by a majority of my associates.