(dissenting).
I am unable to agree with the majority opinion.
I am of the conviction that the Merit System Act, except as to the named agencies, violates art. 4, Sec. 1, of the Okla.Const. in that legislative power and authority is delegated to the Governor and the State Personnel Board, which Board is created by the Act.
It is provided in substance in Sec. 1 of the Act that the Merit System created by the Act shall include the State Employment Security Commission, Crippled Children’s Commission, State Department of Health and State Department of Welfare and shall be extended to such other State agencies (with exceptions noted in the Act) as the Governor may by executive order bring under the Act. The language of the Act which I refer to is this:
“ * * * to provide a statutory basis for the existing merit system of personnel administration covering the em- ■ ployees of the State Employment Security Commission, Crippled Children’s Commission, the State Department of Health, and the State Department of Public Welfare, and to provide for the extension of the merit system to the employees of such other state agencies or departments as the Governor may direct by an Executive Order. * * * ” (Emphasis supplied.)
Section 2 of the Act provides in part as follows:
“The word agency as used in -this Act is defined to mean any board, commission or institution of the State Government. The Governor of the State *218of 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. * *
“Notwithstanding any provisions to the contrary, this Act. shall not be extended to any department or agency or employee, except in the manner and as provided in this Section. * * * ” (Emphasis supplied.)
The time within which the Governor shall bring under-the Act the various State Agencies subject thereto, or the conditions which -must exist before said agencies are brought under the Act, are not provided for. It follows that it is within the arbitrary discretion of the Governor to (1) bring or not bring under the Act agencies not exempted from the Act; to (2) exempt or not exempt from the Act persons holding certain positions with agencies brought under the Act; to (3) exempt persons in a given agency from the Act but place other persons holding like or similar positions in other agencies under the Act; and (4) to act when he alone chooses to act.
It is argued that the language of Sec. 1 of the Act to the effect that “The general purpose of this Act is to provide all citizens a fair and equal opportunity for public service, to establish conditions of service which will attract officers and employees” shows that the Act was intended to apply to all State agencies not specifically exempted from the provisions of the Act. I am unable to agree. In providing in Sec. 3 of the Act that certain agencies were exempt, the Legislature made clear that the phrase “all citizens” cannot be applied literally and that said phrase did not in fact apply to all citizens. It made equally clear in the provisions of the Act first herein quoted that the merit system was only extended “to the employees of such other state agencies (agencies in addition to those specifically named) or departments as the Governor may direct by Executive Order” (Sec. 1); that the Governor may “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” (Sec. 2); and that “Notwithstanding any provisions to the contrary, this Act shall not be extended to any department or agency or employee, except in -the manner as provided in this Section.” Sec. 2. The provision last quoted embraces the provision quoted at the beginning of this paragraph.
In the second paragraph of the syllabus to Palmer et al. v. King et al., 75 Okl. 276, 183 P. 411, it is stated:
“Where general terms or expressions in one part of the statute are inconsistent with more specific or particular provisions in another part, the particular provision will be given effect, as a clearer and more definite expression of the legislative will.”
See also In re State Treasury Note Indebtedness, 185 Okl. 10, 90 P.2d 19.
I am of the further conviction that the Act violates art. V, Sec.' 59' of the Okla. Const, which 'Article reads as follows:
“Laws of a general nature shall have a uniform operation throughout the State, and where a general law can be made applicable, no special law shall be enacted.”
In construing the above quoted Article, this Cortrt has pointed out that where a statute operates upon a class, the classification must not be capricious or arbitrary but must be reasonable and pertain to some pecularity in the subject matter calling for the legislation. See Williams et al. v. Hutchens et al., 187 Okl. 268, 102 P.2d 841 and Special Indemnity Fund v. Farmer et al., 195 Okl. 262, 156 P.2d 815.
*219A statute which would bring under the Act only a portion of the employees of the State, doing identical work under identical conditions would clearly violate the last cited provision of the Constitution. To my way of thinking, the Legislature cannot do indirectly that which it cannot do directly by delegating to the Governor, as in the instant case, power and authority to place under this Act a class of employees of a given agency but exempt therefrom employees of another agency of the same class.
While I am convinced that the Governor would not act in an arbitrary or capricious manner in bringing agencies or the personnel of said agencies under the Act, this has no bearing on the question under consideration. In Panama Refining Co. et al. v. Ryan et al., 293 U.S. 388, 420, 55 S.Ct. 241, 248, 79 L.Ed. 446, this is said relative to the presumption that the President of the United States would act for the best interest of the public in placing in effect an act relating to the transportation of crude oil produced in violation of State law:
“Fifth. The question whether such a delegation of legislative power is permitted by the Constitution is not answered by the argument that it shottld be assumed that the President has acted, and will act, for what he believes to be the public good. The point is not one of motives, but of constitutional authority, for which the best of motives is not a substitute. * * * ”
On the issue relative to whether the Act violates art. 5, Sec. 55 of the Constitution pertaining to appropriations, I agree with the reasoning of the majority to the general effect that an appropriation may properly be made for an agency to satisfy its contractual obligation to another agency. I do not agree, however, that an appropriation was not made for the present biennium to the several agencies that have been brought under or which may be brought under the Act to cover the expenses contemplated by Sec. 13 of the Act.
It is my understanding that in accordance with a well-established practice, the several agencies of the State which might be made subject to the Act, included in their budgets, which were submitted to the Legislature for the present biennium, a lump-sum estimate of money which would be expended for contractual services. Therefore, in view of the fact that the expenditure contemplated by Sec. 13 is for contractual services rendered agencies brought under the Act, an appropriation was in fact made for such expenditures. I add, it is my understanding that power and authority on the part of the Legislature to, in effect, create a contract between agencies brought under the Act and the State Personnel Board to cover the latter’s cost of administering the merit system is not questioned.
For reasons given, I respectfully dissent from the majority opinion.