Draper v. State

Draper v. State
1980 OK 117
621 P.2d 1142
Case Number: 55144
Decided: 07/22/1980
Modified: 12/23/1980
Supreme Court of Oklahoma

DANIEL D. DRAPER, JR., GENE C. HOWARD, DON DAVIS AND WILLIAM J. WISEMAN, JR., PETITIONERS,
v.
STATE OF OKLAHOMA AND JAN ERIC CARTWRIGHT, AS ATTORNEY GENERAL THEREOF, RESPONDENT, WILLIAM F. POULOS, CHARLES R. FORD, BILL LANCASTER, GEORGE CAMP, CHARLES CLEVELAND, HELEN ARNOLD, GENE D. COMBS, JAMES D. HOLT, FRANK SHURDEN, T.W. BILL HOLADAY AND FRANK DAVIS, AMICUS CURIAE.

Original Proceeding for Writ of Prohibition or Mandamus.

¶0 Petitioners requested the assumption of original jurisdiction and a motion to stay the effectiveness of the Attorney General's Opinions Nos. 79-311 and 79-313B. The Court assumed original jurisdiction and entered the Motion to Stay April 30, 1980. The petitioners also sought writs of prohibition and mandamus to preclude the issuance of further analogous opinions by the Attorney General or, in the alternative, to mandate the withdrawal of the contested opinions.

ORIGINAL JURISDICTION ASSUMED. ATTORNEY GENERAL'S OPINIONS NOS. 79-311 and 79-313B HELD TO BE INVALID AND OF NO EFFECT.

WRIT OF MANDAMUS AND WRIT OF PROHIBITION DENIED.

Womack, Draper, Deatherage & Patten by Cleta Deatherage, Norman, for petitioners.

Jan Eric Cartwright, Atty. Gen., John F. Percival, Asst. Atty. Gen., Oklahoma City, for respondent.

William D. Graves, Oklahoma City, for amicus curiae.

HODGES, Justice.

[621 P.2d 1144]

¶1 The petitioners, Daniel D. Draper, Jr., Gene C. Howard, Don Davis, and William J. Wiseman, Jr., members of the Oklahoma Legislature, filed an application to assume original jurisdiction, a motion to stay, and petitions for a writ of mandamus and prohibition. The petitioners request that the effectiveness of the Attorney General's Opinions, Nos. 79-311 and 79-313B be stayed; and that the Attorney General be prohibited from the issuance of similar rulings or, in the alternative, an order be issued by this Court which would require the Attorney General to withdraw the opinions.

¶2 After the adjournment of the first session of the Thirty-Seventh Legislature, two legislators posed questions concerning the constitutionality of the appropriations bill, HB 1140.

¶3 A hearing was held on the motion to stay on April 30, 1980. Following the hearing, the Court issued an order assuming original jurisdiction and entered the motion to stay the effectiveness of the Attorney General's Opinions Nos. 79-311 and 79-313B.

I

¶4 The Attorney General contends this Court does not have original jurisdiction because it does not have general superintending control over the Office of Attorney General. The Attorney General argues that because the Okla.Const. art. 7, § 4 limits general superintending control of the Supreme Court to inferior courts, and all agencies, commissions, and Boards created by law, the exercise of jurisdiction over the Office of Attorney General would be violative of the doctrine of separation of powers pursuant to the Okla.Const. art. 4, § 1 . According to the Attorney General, the petitioners should have filed an action for declaratory judgment in the district court.

¶5 The petitioners counter with the arguments that: 1) The Attorney General exercised quasi-judicial powers which are subject to control by the Court; 2) The matter is of intense concern to the citizenry of this state; and 3) Because of the expediency required and the nature of the matter, jurisdiction should be assumed.

¶6 In Oklahoma Ass'n of Mun. Attys. v. State, 577 P.2d 1310, 1312 (Okl. 1978)

II

¶7 It is clear from a reading of art. 5, § 56 that certain things may be contained in a general appropriations bill, and other things must not be included. The quintessential query is whether the Oklahoma Constitution mandates a general appropriations bill. If it does, the Attorney General's Opinions are correct. If it does not, the Legislature may continue in its present pragmatic approach to state financing.

¶8 The Constitution, the bulwark to which all statutes must yield, must be construed with reference to the fundamental principals which support it. Effect must be given to the intent of its framers and of the people adopting it. This intent is to be found in the instrument itself; and when the text of a constitutional provision is not ambiguous, the courts, in giving construction thereto, are not at liberty to search for its meaning beyond the instrument.

¶9 The Attorney General suggests that separate appropriation bills for the expenses of different departments of government are of recent development and that prior thereto, such appropriations were contained in a single appropriation bill.

¶10 The rule that where the Constitution confers the power to do a particular act and prescribes the means and manner of doing such act, such is exclusive of all others,

¶11 Under our holding in Tate, if the Legislature enacted separate appropriation bills for the expenses of the several departments for one fiscal year, and enacted a single appropriation bill for the expense of all departments for the next fiscal year, we would not look to the Constitution to determine whether the two types of appropriations are authorized, but to determine whether the Legislature is prohibited by the Constitution from making the two types of appropriations, or either of them.

¶12 We find no express limitations in our constitution upon the power of the Legislature to enact laws similar to HB 1140. Nor do we find that the passage of such appropriation bills is prohibited by the Constitution. The Constitution mandates certain requirements if there is a general appropriations bill, it does not dictate that there be one.

III

¶13 Although a writ of mandamus will lie to compel the Attorney General to perform a plain ministerial duty, it is inappropriate when the Attorney General has performed his duty. The statute, 74 O.S.Supp. 1979 § 18b (q),

IV

¶14 When a public officer exercises a judicial or quasi-judicial function, a writ of prohibition may be employed to control his actions. Prohibition is a preventive, rather than a corrective, remedy. It issues to prevent the threatened commission of a future act, not to undo a completed act nor to review or nullify an act which has already been performed. However, in public questions of great importance and interest, the Supreme Court may retain jurisdiction, and in a proper case grant prohibition.

¶15 Original Jurisdiction Assumed. Attorney General's Opinions Nos. 79-311 and 79-313B Held To Be Invalid And of No Effect. Writ of Mandamus and Writ of Prohibition Denied.

¶16 LAVENDER, C.J., IRWIN, V.C.J., and WILLIAMS and BARNES, JJ., concur.

¶17 DOOLIN and OPALA, JJ., concur in part, dissent in part.

¶18 SIMMS, J., dissents.

Footnotes:

1 Senator Herschal Crow inquired of the Attorney General:

"Whether any portion of this year's bill to fund common schools, HB 1140, is unconstitutional by reason of the fact that it may be general legislation rather than specifically appropriative language?"

Representative William F. Poulos asked:

"Is HB 1140, appropriating funds to the State Board of Education, a constitutional appropriations bill?"

2 The Okla.Const. art. 5, § 56 provides:

"The general appropriation bill shall embrace nothing but appropriations for the expenses of the executive, legislative, and judicial departments of the State, and for interest on the public debt. The salary of no officer or employee of the State, or any subdivision thereof, shall be increased in such bill, nor shall any appropriation be made therein for any such officer or employee, unless his employment and the amount of his salary, shall have been already provided for by law. All other appropriations shall be made by separate bills, each embracing but one subject."

Art. 5, § 57 of the Okla.Const. states:

"Every act of the Legislature shall embrace but one subject, which shall be clearly expressed in its title, except general appropriation bills, general revenue bills, and bills adopting a code, digest, or revision of statutes: and no law shall be revived, amended, or the provisions thereof extended or conferred, by reference to its title only; but so much thereof as is revived, amended, extended, or conferred shall be reenacted and published at length; Provided, That if any subject be embraced in any act contrary to the provisions of this section, such act shall be void only as to so much of the law as may not be expressed in the title thereof."

3 The Attorney General concluded:

"1. By reason of the requirements of Art. 5, Sections 56 and 57, Okla.Const., appropriations for the expenses of the executive, legislative and judicial departments of government must be contained in a single general appropriations bill which may not contain any other appropriations or general legislation.

"2. All other appropriations of general laws except those lawfully encompassed within the general appropriations bill must be by separate bill embracing but one subject.

"3. HB 1140 (First Regular Session of the Thirty-Seventh Legislature), Laws 1979, c. 282, codified in part as 74 O.S.Supp. 1979, Section 285 (46) is unconstitutional as said bill appropriates money in a separate bill for the expenses of an agency of the executive department which can only be provided for in the general appropriations bill specified in Art. 5, Section 56, Okla.Const.

"4. Funds expended or incumbered for expenditure pursuant to appropriations made in HB 1140 are not invalidated by reason of the unconstitutionality of said bill as public officers may rely on the presumed constitutionality of a law until such law is judicially declared unconstitutional or until advisee by proper officer of the unconstitutionality of the law."

4 The Okla.Const. art. 7 § 7 grants unlimited jurisdiction of all justiciable matters to the district court.

5 See also State v. Daxon, 51 OBJ 544, 607 P.2d 683 (Okl. 1980).

6 Latting v. Cordell, 197 Okl. 369, 172 P.2d 397 (1946).

7 Swanda v. Swanda, 207 Okl. 186, 248 P.2d 575 (1952).

8 McCurtain County Excise Board v. St. Louis-San Francisco Ry. Co., 340 P.2d 213 (Okl. 1959).

9 Texas Co. v. State ex rel. Coryell, 198 Okl. 565, 180 P.2d 631 (1949).

10 Tate v. Logan, 362 P.2d 670 (Okl. 1961).

11 It is provided by 74 O.S.Supp. 1979 § 18b (q):

"To respond to any request for an opinion of his office, submitted by a member of the Legislature, regardless of subject matter, by written opinion determinative of the law regarding such subject matter."

12 Boe v. Gorton, 88 Wash. 2d 773, 567 P.2d 197, 199 (1977).

13 Witt v. Wentz, 142 Okl. 128, 286 P. 796, 797 (1930).

14 Oliver v. Oklahoma Alcoholic Beverage Control Bd., 359 P.2d 183 (Okl. 1961); Halliburton v. Williams, 166 Okl. 248, 27 P.2d 360 (Okl. 1933).

15 Oklahoma Ass'n of Mun. Attys. v. State, 577 P.2d 1310, 1312 (Okl. 1978).

DOOLIN, Justice, concurring in part; dissenting in part:

¶1 I concur with the conclusion of the majority when it holds a general appropriation bill is not the sole means of appropriating monies by the Oklahoma Legislature. I dissent to the majority's opinion and act in assumed jurisdiction on the original application for prerogative writ.

¶2 I am authorized to state that SIMMS, J. concurs in this opinion.

SUPPLEMENTAL OPINION ON REHEARING

IRWIN, Vice Chief Justice:

¶1 On Rehearing the respondent challenges our finding that the Oklahoma Constitution, Art. 5, § 56 , does not mandate a general appropriations bill. We find no reason now to alter that view. However, our holding that Attorney General Opinion Nos. 79-311 and 79-313-B are invalid and of no effect is, of course, limited to the single issue actually presented to and determined by the court.

¶2 In addition to finding HB 1140 unconstitutional in light of Okla.Const. Art. 5, § 56 , Attorney General Opinion No. 79-313-B also declared a specific section of HB 1140 unconstitutional for another reason. Section 8 of HB 1140 appropriated $240,000 from the General Revenue Fund to the State Board of Education to assist in defraying the cost of rebuilding school buildings destroyed by fire in six designated school districts. Attorney General Opinion No. 79-313-B declared the Section 8 appropriation unconstitutional as a special and local law prohibited by Okla.Const., Art. 5, § 46 .

¶3 Neither party placed the correctness of this additional finding at issue in this case, but instead they agreed that the Attorney General's conclusion regarding Section 8 [621 P.2d 1148] was not a subject in this action. Therefore, we express no view in this case on the correctness of the conclusion contained in Attorney General Opinion No. 79-313-B concerning Section 8 of HB 1140.

¶4 LAVENDER, C.J., and WILLIAMS, HODGES, HARGRAVE and BARNES, JJ., concur.

¶5 SIMMS, J., dissents.