dissenting: My examination of the State’s contract with Manhattan Builders and of Senate Bill No. 470 leads me to differ with the majority.
There is no question the secretary of administration, representing the executive branch of state government, had authority to bind the State of Kansas to the lease contract. The sole question presented in this appeal is whether the termination clause of the lease was triggered. It provided the lease was terminable on notice “if funds anticipated . . . are at any time not forthcoming . . . through failure of the legislature to appropriate funds . . . .” Here the legislature appropriated the funds for rent but placed the funds in the department of administration’s budget rather than the insurance department’s budget. That is not a failure to appropriate. Both departments are in the executive branch. The director of administration is authorized to pay rent. The budget change is a distinction without a difference. Such maneuvering should not terminate a contractual obligation of the State.
It is argued the legislative restriction on the expenditure of the appropriated rental funds operates to nullify the appropriation as it pertains to this lease. This presents a separation of powers question: May the legislature restrict the executive in its administration of a law by placing restraints on the use of appropriated funds? Let us examine the authorities. 16 Am. Jur. 2d, Constitutional Law § 294, pp. 804-05, states:
*34“[T]he doctrine is generally accepted that none of the several departments is subordinate, but that all are co-ordinate, independent, coequal, and potentially coextensive.
“It has been said that if government is to function constitutionally, it is necessary for each of the repositories of constitutional power to keep within its power.
“The true meaning of the general doctrine of the separation of powers seems to be that the whole power of one department should not be exercised by the same hands which possess the whole power of either of the other departments, and that no one department ought to possess directly or indirectly an overruling influence over the others.
“The rule is generally recognized that constitutional restraints are overstepped where one department of government attempts to exercise powers exclusively delegated to another; officers of any branch of the government may not usurp or exercise the powers of either of the others, and, as a general rule, one branch of government cannot permit its powers to be exercised by another branch.”
This court has recognized the separation of powers doctrine is applicable to Kansas governmental organization. In Van Sickle v. Shanahan, 212 Kan. 426, 447, 511 P.2d 223 (1973), we stated:
“The concept of a republican form of government and by implication the doctrine of separation of powers were the underlying assumption upon which the framework of the new government was developed. In reaching this conclusion, this court holds that the doctrine'of separation of powers is an inherent and integral element of the republican form of government, and separation of powers, as an element of the republican form of government, is expressly guaranteed to the states by Article IV, Section 4 of the Constitution of the United States.”
Van Sickle v. Shanahan also noted the different functions of the three branches of government:
“Generally speaking, the legislative power is the power to make, amend, or repeal laws; the executive power is the power to enforce the laws, and the judicial power is the power to interpret and apply the laws in actual controversies.” 212 Kan. at 440.
In State, ex rel., v. Bennett, 219 Kan. 285, Syl. ¶¶ 4, 5, 547 P.2d 786 (1976), this court laid out the standard for determining usurpation of power by one branch of another:
“A usurpation of powers exists where there is a significant interference by one department with operations of another department.” 219 Kan. at Syl. ¶ 4.
“In determining whether or not a usurpation of powers exists a court should consider (1) the essential nature of the power being exercised; (2) the degree of control by one department over another; (3) the objective sought to be attained by the legislature; and (4) the practical result of the blending of powers as shown by actual experience over a period of time.” 219 Kan. at Syl. ¶ 5.
Let us weigh this legislative action against the foregoing stan*35dard. (1) The essential nature of the power being exercised is one of prohibiting the executive branch from using discretion in administering an appropriation for rent of executive branch office space. This constitutes an invasion of executive prerogative. (2) The degree of control by the legislature over the executive by this technique is considerable. If such a restriction on expenditure of appropriations is constitutionally permissible, there need be only one branch of government. After the legislature chose its favorite vendors and lessors the mechanical task of writing checks would be all that remained. (3) The objective sought by the legislature is obviously control of from whom space is leased. Respondents argue the legislature was merely delaying action until it determined whether to lease space or build it. This claim has no credibility. If the claim were true, the rent funds would not have been appropriated and the termination clause of the lease would, without question, have been effective. Here the amount of rent budgeted was funded but with the ban on payment to Manhattan Builders. This is an obvious usurpation of executive powers. (4) The practical result of such practice is a takeover of the duties of the executive branch by the legislature. If such practice is constitutional, there is nothing to prevent the legislative branch, by the same technique, from forcing the judicial branch to exercise its function according to legislative dictates. As James Madison stated in The Federalist, No. 47 at 313:
“No political truth is certainly of greater intrinsic value, or is stamped with the authority of more enlightened patrons of liberty, than that on which the objection is founded. The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.”
The legislative function is to set public policy. The executive function is to administer that public policy. Choosing between vendors and lessors is an executive function. The legislative function is to determine “how much,” not “to whom.”
Justice Fatzer’s dissent in State, ex rel., v. Fadely, 180 Kan. 652, 672, 308 P.2d 537 (1957), emphasized the importance of this issue:
“The separation of powers of government represents probably the most important principle declaring and guaranteeing the liberties of the people. It is one of the chief merits of the American system of written constitutions, and, in a broad sense, the safety of our institutions depends in no small degree on the strict *36observance of the independence of the three departments. [Citations omitted.] The separation of these powers; the independence of one from the other; and, the requirements that one department shall not exercise or usurp the powers of the other two, is fundamental. Each acts, and is intended to act, as a check upon the other, and thus, a balance system is maintained. No theory of government has been more loudly acclaimed.”
I would grant mandamus.
Fromme and Holmes, JJ., join the foregoing dissent.