dissenting.
¶ 1 In this consolidated case the court today affirms two summary judgments, holding that (a) the enactments1 on which the Tulsa County privately-managed jail was rested are free from constitutional infirmities, (b) the Tulsa County Criminal Justice Authority [TCCJA] did not exceed its power by contracting with a private company for the operation of the county jail and (c) there was no legal taint in the legislative alteration of the sheriffs duties. I recede from the court’s pronouncement.
¶ 2 The issue here is not whether the legislation in contest (or the delegation of jail operations to private entities) is valid, but rather whether the wholesale transfer of supervision and management of the jail from the sheriff to another entity — public or private — is constitutionally permissible. I would hold that, as applied to Tulsa County, the contract-based operation of the jail offends Art. 5 § 46, Okl. Const.2 It results in an impermissible dichotomous division of the 77 counties into (a) those in which the local sheriffs range of powers includes the supervision and management of the jail and (b) those in which that authority is transferred to a private jail operator. The transfer of all county control over the jail facility (and the stripping of the sheriffs oversight power) plainly offends the symmetry intended by § 46 as well as creates an impermissible asymmetry in the authority of sheriffs over the state. Other Oklahoma sheriffs remain vested with statutory power to control the county *1134jail operations. 19 O.S.1991 § 513.3 Because this controversy need not address itself to the facial validity of any statutory text but rather to the impact of its flawed application in Tulsa County, I would order the fundamental-law infirmity excised by amending the offending contract clause to provide that the ultimate oversight control and supervision of all jail operations — both managerial and correctional — must stand in the sheriff; I would leave the private contractor in charge of the day-to-day operation of the facility. If the court were to adopt my view, the contract would remain in force but all operations of the jail would be subjected to the sheriffs exercise of his statutory power of control.
I
THE CONTROVERSY
¶ 3 This is a controversy over the impact of the Tulsa County Criminal Justice Authority’s [TCCJA’s] contract with a private entity to operate and manage the Tulsa County jail. The contract is rested on the provisions of 57 O.S.1991 § 414 and 19 O.S.1991 § 744,5 whose text authorizes each board of county commissioners to enter into an agreement with a private contractor for the operation of county jails. The constitutional validity of this statutory scheme — on which the privately managed Tulsa County jail was founded— came under attack in two separate actions for declaratory and injunctive relief. The first of these suits was brought by the Tulsa County Deputy Sheriffs Fraternal Order of Police (and a group of taxpayers) against the Board of County Commissioners [Board] and TCCJA; the second — against the same entities — by the Tulsa County Sheriff (and inter-venor-Sheriffs’ Association).
¶ 4 The plaintiffs [collectively called sheriff] sought judicial declaration of the enactments’ invalidity on the ground that they impermissibly delegate the statutory powers and duties of the sheriffs office to a nongovernmental body. At nisi prius summary relief went to the Board (and TCCJA).
¶ 5 On appeal the court directed that the parties6 assess the negative impact, if any there was, the uniformity mandate of Art. 5 § 46, Okl. Const.,7 may have upon the validity of the legislative enactments that stand tendered for this court’s constitutional testing. Recognizing no fatal facial deficiency in the jail “privatization” enactments, the sheriff nonetheless argues that their cumulative effect, as applied in Tulsa County, represents an impermissible regulation of both the county affairs as well as of the uniform powers conferred by law on county officials.8 I accede to this contention.
*1135II
THE IMPACT OF ART. 5 § 46, OKL. CONST.,9 ON THE SCENARIO BEFORE THE COURT
A.
The Search For Constitutional Infirmities To Be Measured By The Standards Prescribed In Art. 5 § 46 And Those To Be Gauged By The Standards Of § 59 Focuses On Vastly Different Criteria
¶ 6 The court must test the privatization scheme’s constitutional orthodoxy by the standards prescribed in Art. 5 § 46 (not in § 59). TCCJA’s transfer of all oversight supervision and control of the Tulsa County jail operations from the sheriff to a private prison contractor clearly implicates the interdiction of local laws on two subjects that stand included in the § 46 litany of prohibitions. That section mandates in absolute terms statewide uniformity for the ambit of powers and duties of each county officer and for the regulations that affect the government in the counties.10 Its relevant terms expressly prohibit the legislature from impacting county affairs by local (or special) law.11 All acts of a county governing body which result in departing from general law affecting the powers and duties of county officers are per se offensive to the notion of territorial (statewide) uniformity imposed in absolute terms by § 46.12
¶7 Conformity to Art. 5 § 59, Okl. Const.,13 on the other hand, presents a problem entirely unrelated to the mandate of the § 46 uniformity requirement. Tests used for measuring a law’s validity under § 4614 are distinct from those for gauging a statute’s § 59 orthodoxy. While the former section prohibits the passage of any special or local law on a variety of textually identified subjects, the latter merely commands that statutes must have uniform application through the enactment of general laws.15 Within the meaning of § 59 a special latv is nonetheless permissible whenever a general law could not be made applicable.16 Not so under § ⅛6.
¶ 8 In sum, a § 46 scrutiny does not concern itself with whether an enactment’s subject may be fashioned into a general law. A prohibited subject may not be disuniformly dealt with by any enactment. Section J¡.6 absolutely invalidates all local or special legislation on prohibited subjects re*1136gardless of whether a general law could or could not have been crafted.17
B.
The Facial and “As Applied” Invalidity of a Statute
¶ 9 Nonconformity of a statute to the constitution’s command may be either facial18 or lie solely in the law’s application.19 This case does not implicate the facial fundamental-law orthodoxy of any statutory texts here in contest but rather the impermissible impact of their flawed application.
¶ 10 An “as applied” challenge seeks relief from a specific application of a facially valid statute to an individual (or class of individuals) who is under an allegedly impermissible legal restraint or disability as a result of the manner (or circumstances) in which the statute has been employed.20 The attack launched under this rubric contemplates a factual analysis of the case to determine the circumstances in which the enactment has been utilized and to consider whether in those particular circumstances the employment deprives anyone to whom it was applied of a protected right.21 While a law found deficient in its application to one plaintiff cannot be enforced against that person, it would escape the judiciary’s general condemnation of invalidity. A facially unconstitutional statute, on the other hand, is void from its inception and cannot provide a basis for any claim of right or to any relief.22 It confers no rights, bestows no power on anyone and justifies no act performed under its aegis.23 A facial attack mounted in a judicial forum should not generally be entertained when an “as applied” challenge could resolve the controversy.24
C.
The Impact of State ex rel. Macy v. Board of County Commissioners25
¶ 11 For blanket validation of the contract in contest TCCJA’s brief appears to rely on this court’s failure to condemn in State ex rel. Macy a potentially asymmetrical regime imposable by the provisions of 19 O.S.1991 §§ 1401 et seq. (the County Budget Act). The act authorizes, but does not require, counties to opt for the creation of a budget board.
¶ 12 In the Art. 5 § 46 sense, Macy gave neither approval nor disapproval to the selective regime for creating a budget board form of county governance. No one in Macy challenged — on § 46 grounds — the poten*1137tial for disuniform operation of the county budget board act. The impact of that act on the § 46 uniformity mandate ivas not pressed for resolution. It hence escaped the court’s fundamental-law scrutiny.
Ill
THE ESSENCE OF THE § 46 INFIRMITY THAT TAINTS THE TULSA COUNTY JAIL OPERATIONS
¶ 13 By the Board’s own admission at oral argument,26 the TCCJA contract strips the sheriff of all control over the county jail operations. This is the essence of the § 46 infirmity here.
A.
The Vice In The Statutes’ Application
¶ 14 The vice to be remedied here is not in the delegation to a stranger of powers vested in a unit of government, but in a contractual arrangement between a county entity and a private operator which divests a law-empowered county official of all authority over the contract’s subject matter — -the operations of the county jail. By the TCCJA contract the county official in charge of the local jail — the sheriff — has been taken completely out of participation in the control of the facility’s management as well as divested of oversight over any correctional discipline of the inmates’ conduct.
¶ 15 It is the actual transfer of all control over the jail facility by the contract’s elimination of the sheriffs oversight authority that offends the symmetry intended by § 46. That section absolutely commands that all county officials who hold the same office in the State have the very same powers and duties. The impact of privatizing the Tulsa County jail creates a disuniformity by which the sheriff is singled out for enjoyment of lesser powers than those possessed by other sheriffs in the State. It is not to be denied that the legislature may abolish the office of the sheriff in all counties. But so long as that office continues to exist its range of duties must be uniform in every county of the State.27
¶ 16 The dichotomous division that results from today’s decision leaves the sheriff in unprivatized counties fully in command of the local jail but singles out that office in Tulsa County for a different job description. TCCJA’s contractual misapplication of uniform law hence creates a local departure which is violative of § 46. That is the essence of the vice to be remedied here.
B.
The Infirmity’s Removal
¶ 17 It is not the act of “privatizing” the jail that is infirm; rather, the vice consists solely of depriving the sheriff of his oversight control. This infirmity in the statute’s application could easily be removed by a contract’s amendment that could be imposed ex lege. That amendment would leave the private operator in charge of the day-to-day management, but would place the ultimate oversight over prisoners’ discipline and over the facility’s operations in the hands of, and under the standards imposed by, the sheriff.
¶ 18 Aside from the mischief of injecting disuniformity with grave constitutional implications, a contractual elimination of the sheriffs control utterly lacks any supportive statutory warrant.28 When privatizing was *1138accomplished neither the Board of County Commissioners in Tulsa County nor TCCJA was vested with power to control the jail or the authority to oust the sheriff and transfer his control to the private contractor.29 As one of the common law’s ancient guiding beacons eloquently teaches, nemo dot quod non habet — one cannot give that which one does not have, i.e., no one can give a better title to a thing than one possesses.30
IV
SUMMARY
¶ 19 While TCCJA’s power to “privatize the jail”'— i.e. to place the management of that facility in a nongovernmental entity— may indeed be impervious to the constitutional attack launched here, the act of entrusting that operation to one who is positioned beyond the reach of the sheriffs oversight control, creates a disuniformity that is fatally offensive to the § 46 command against “local” law on two of the twenty-eight subjects included in the cited section' — -the uniform regulation of county affairs and the uniformity of powers to be possessed by county officials. In short, the TCCJA contract not only lacks a statutory warrant for the sheriffs ouster of control, but also injects an impermissible asymmetry into the range of uniform powers possessed by sheriffs over the State. That fundamental-law infirmity could be excised by a law-imposed amendment which would restore the sheriffs complete oversight over the business management function as well as over the correctional aspects of the local jail operation.
. For the legislative enactments in contest here (57 O.S.1991 § 41 and 19 O.S.1991 § 744), which allow the counties to contract with private entities “for the management and operation” of county jails and for the furnishing of jail facilities, see infra notes 4 and 5.
. The pertinent terms of Art. 5 § 46, Okl. Const., are;
The Legislature shall not, except as otherwise provided in this Constitution, pass any local or special law authorizing:
% ⅜ # ⅜ ⅜ #
Regulating the affairs of counties, cities, towns, wards or school districts;
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Creating offices, or prescribing the powers and duties of officers in counties, cities, town, election or school districts; * * *
(emphasis supplied).
. The terms of 19 O.S.1991 § 513 are:
The sheriff shall have the charge and custody of the jail of his county, and all the prisoners in the same, and shall keep such jail himself, or by his deputy or jailer, for whose acts he and his sureties shall be liable.
(emphasis mine).
. The terms of 57 O.S.1991 § 41 are:
Every county, by authority of the board of county commissioners and at the expense of the county, shall have a jail or access to a jail in another county for the safekeeping of prisoners lawfully committed.
A county may enter into contracts with private prison contractors to provide and operate jail facilities for the county.
(emphasis supplied).
. The terms of 19 O.S.1991 § 744(A) are:
A. Each board of county commissioners is hereby authorized to enter into contracts with private contractors for the management and operation of any jail owned by the county or for the incarceration of inmates in jail facilities owned and operated by private contractors. Such services shall meet any standards prescribed and established for county jails, including but not limited to standards concerning internal and perimeter security, discipline of inmates, employment of inmates, and proper food, clothing, housing, and medical care. Said contracts shall be entered into for a period not to exceed fifty (50) years subject to annual appropriations by the county excise board. Said contracts shall be valid for a fiscal year only if the county excise board provides an appropriation for the contract for that fiscal year.
(emphasis supplied).
. The sheriff and the sheriffs’ association (Sup. Ct.No.93,503) and the deputy sheriff’s fraternal order of police and taxpayers (Sup.Ct.No.92,626) brought separate appeals from two summary judgments for the Board; the cases were consolidated for disposition by a single opinion.
. For the terms of Art. 5 § 46, Okl. Const., see supra note 2.
. The 29 October 1999 brief of the Tulsa County Deputy Sheriff's Fraternal Order of Police and taxpayers (pages 6 and 7) argues:
Looking at the effect of the jail privatization statutes, as applied in Tulsa County, an exer*1135cise in the discretion delegated has had the resulting effect of regulating the affairs of Tulsa County. Specifically, the exercise of this privatization option has effectively prescribed powers to new county officers (employees of private for-profit prison operator), and has regulated the powers, duties and jurisdiction of the Tulsa County Sheriff, taking him totally outside any policy making function relating to the jail or to the prisoners.
(emphasis supplied).
. For the terms of Art. 5 § 46, Okl. Const., see supra note 2.
. Nelson v. Nelson, 1998 OK 10, 954 P.2d 1219, 1232 (Opala, J., dissenting); Reynolds v. Porter, 1988 OK 88, 760 P.2d 816, 822; State of Oklahoma ex rel. Nesbitt v. District Court of Mayes County, 1967 OK 228, 440 P.2d 700, 705-706 (noting that Art. 5 § 46 prohibits special or local laws prescribing the powers and duties of county officers, the court held that nothing in Oklahoma’s fundamental law authorizes the legislature to impose upon an arbitrarily selected group of county officials duties which do not stand imposed upon like officials in other counties of the state ).
. Maule v. Independent School Dist. No. 9, 1985 OK 110, 714 P.2d 198, 203-204; Reynolds, supra note 10 at 822; Great Plains Federal S & L Assn. v. Dabney, 1993 OK 4, 846 P.2d 1088, 1095-1096 (Opala, J., concurring).
. See Nelson, supra note 10 at 1229 (Opala, J., dissenting)(a countywide or local rule affecting the powers and duties of county officers is per se offensive to the § 46 uniformity mandate).
. The terms of Art. 5, § 59, Okl. Const., are:
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.
. For the terms of Art. 5 § 46, Okl. Const., see supra note 2.
. Reynolds, supra note 10 at 822; Nesbitt, supra note 10 at 703 syl. 1.
. When testing a statute’s constitutional orthodoxy under § 59, a three-prong inquiry is to be made: (1) Is the statute a special or general law? (2) If the act is a special law, could a general law be made applicable? and (3) If a general law may not be made applicable, does the statute pass muster as a permissible special law? Ross v. Peters, 1993 OK 8, 846 P.2d 1107, 1119; Reynolds, supra note 10 at 822.
. Although directed to the legislature, the terms of Art. 5 §§ 46 and 59 are equally binding on the courts. Reynolds, supra note 10 at 822. Our own jurisprudence, no less than the legislature’s enactments, must faithfully conform to the fundamental law’s prohibition against disuniform (or non-uniform) laws on prohibited subjects. Id.
. St. Paul Fire & Marine Ins. Co. v. Getty Oil Co., 1989 OK 139, ¶ 10, 782 P.2d 915, 917; State v. Board of County Comm’rs, 188 Okl. 184, 107 P.2d 542, 544 syl.1 (1940). See also, Texas Workers’ Compensation Com’n v. Garcia, 893 S.W.2d 504, 518 (Tex.1995).
. See in this connection Garcia, supra note 18 at 518 n. 16; Nelson v. Krusen, 678 S.W.2d 918, 922-23 (Tex.1984) (the court declares constitutionally infirm a two-year medical malpractice statute of limitations as applied to a plaintiff who during the prescribed period could not have discovered the injury).
. Renne v. Geary, 501 U.S. 312, 323-24, 111 S.Ct. 2331, 2339-340, 115 L.Ed.2d 288 (1991). An "as applied” challenge may also seek injunc-tive relief against future application of the statute or ordinance in the allegedly impermissible manner shown to have been invoked for employment in the past.
. See, e.g., Broadrick v. Oklahoma, 413 U.S. 601, 615-16, 93 S.Ct. 2908, 2917, 37 L.Ed.2d 830 (1973); Tobe v. City of Santa Ana, 9 Cal.4th 1069, 40 Cal.Rptr.2d 402, 892 P.2d 1145, 1152-53 (1995).
. St. Paul Fire & Marine, supra note 18 at 917; Board of County Comm’rs, supra note 18 at 544 syl. 1; Casares v. State, 768 S.W.2d 298, 299 (Tex.Crim.App.1989) (quoting Rose v. State, 752 S.W.2d 529, 553 (Tex.Crim.App.1987); Reyes v. State, 753 S.W.2d 382, 383 (Tex.Crim.App.1988).
. Reyes, supra note 22 at 383.
. In Renne, supra note 20, 501 U.S. at 323-24, 111 S.Ct. at 2340, the Court suggests that a lower court faced with an "as applied" and a "facial ” challenge can, and probably should, avoid deciding the "facial" challenge if the law "as applied " is unconstitutional and the decision on that point resolves the controversy between the litigants.
. State ex. rel. Macy v. Board of County Com'rs, 1999 OK 53, 986 P.2d 1130.
. Much like a party’s admission in the brief, its concession at oral argument will also serve to supplement the record. Macy, supra note 25, ¶ 3, at 1133 n. 8; Strelecki v. Oklahoma Tax Com’n, 1993 OK 122, ¶ 16, 872 P.2d 910, 919; Reeves v. Agee, 1989 OK 25, ¶ 24, 769 P.2d 745, 753-754; Womack v. City of Oklahoma City, 1986 OK 14, ¶ 10, 726 P.2d 1178, 1181 n. 8; Timmons v. Royal Globe Ins. Co., 1985 OK 76, ¶ 8, 713 P.2d 589, 592 n. 10.
. The teachings of Sanchez v. Melvin, 1966 OK 116, 418 P.2d 639, on which the court places today its unwarranted reliance, are not in discord with my analysis. Under attack there was not disuniformity in subject matter jurisdiction of justice-of-the-peace courts but only in their territorial reach (in Tulsa and Oklahoma Counties) of less than an entire county. Section 46 does not impose a uniformity mandate for a county-wide territorial competence of every justice-of-the-peace court. This court correctly concluded that the assailed local legislation did not offend § 46.
. Neither of the enactments tested today for constitutional orthodoxy prohibits the inclusion of a contractual phrase that would subject the private jail entity to the sheriff’s oversight. Nor does the underlying legislation authorize the privatizing agency to invest the private contractor with exclusive control over the county jail opera*1138tions by extinguishing the sheriffs statutory powers. In short, there is absolutely no statutory warrant for a contractual displacement of the sheriff. See the pertinent text of 57 O.S.1991 § 41 and 19 O.S.1991 § 744(A), supra notes 4 and 5.
. The Board of County Commissioners and TCCJA invested the private contractor with powers that lay beyond those conferred on them by statute. See Workers’ Compensation Cowt v. Merit Protection Commission, 1993 OK 145, 863 P.2d 1226, 1227; Marathon Oil Co. v. Corporation Commission, 1994 OK 28, 910 P.2d 966, 969-70; Chiles v. Children A, B, C, D, E and F, 589 So.2d 260, 263-264 (Fla.1991) (powers vested in one office of government may not be passed by it to another agency).
. Mitchell v. Hawley, 83 U.S.(16 Wall.) 544, 550, 21 L.Ed. 322 (1872); Snethen v. Oklahoma State Union of Farmers Educational and Co-op. Union of America, 1983 OK 17, 664 P.2d 377, 381. The ancient principle dates back to Justinian's Digest, and apparently comes from a phrase credited to the Roman jurist Ulpian "nemo plus iuris ad alium transferre potest quam ipse habet" (no one can transfer more legal rights than one has). See Milsom, Historical Foundations of the Common Law 331 (Butterworths 1969); Carl S. Bjerre, Secured Transactions Inside Out: Negative Pledge Covenants, Property And Perfection, 84 Cornell L.Rev. 305, 333.