The opinion
GIBSON, C. J.
(dissenting). The question presented is not whether the Legislature is clothed with power to enact laws to speedily effect good in event of unforeseen emergencies. That such power exists is beyond question. And, t© the extent that need for such legislation exists, there devolves upon the Legislature the duty to so act. But such action, however imperative, must be done within the realm of constitutional authority. Its proper attitude with respect to duty and power is thus declared in Schechter v. United States, 295 U. S. 495 , 79 L. Ed. 1570 , 97 A. L. R. 947, where emphasis was placed upon the gravity of a crisis:
“Undoubtedly, the conditions to which power is addressed are always
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to be considered when the exercise of power is challenged. Extraordinary conditions may call for extraordinary remedies. But the argument necessarily stops short of an attempt to justify action which lies outside the sphere of constitutional authority. Extraordinary conditions do not'create or enlarge constitutional power.”
A decisive question here is whether the Legislature, cognizant of the need of such legislation and aware of its nonassignable duty to provide therefor, has undertaken, in default of its own performance, to transfer its prerogative in the premises to the Executive. In Schechter v. United States, supra, after reciting the fact of repeated recognition by that court of the power of Congress .to adapt its legislation to complete situations “which will enable it to perform its function in laying down policies and establishing standards, while leaving to selected instrumentalities the makijig of subordinate rules within prescribed limits and the determination of facts to which the policy as declared by the Legislature is to apply,” it was said:
“But we said that the constant recognition of the necessity and validity of such provisions, and the wide range of administrative authority which has been developed by means of them, cannot be allowed to obscure the limitations of the authority to delegate, if our constitutional system is to be maintained. Id., 421.
“Accordingly, we look to the statute to see whether Congress has overstepped these limitations, whether Congress in authorizing ‘Codes of Fair Competition’ has itself established the standards of legal obligation, thus performing its essential legislative function, or, by the failure to enact such standards, has attempted to transfer that function to others.”
In Field v. Clark, 143 U. S. 649 , 36 L. Ed. 294 , the question was whether section 3 of the Tariff Act of October 1, 1890, in authorizing the President to suspend the operation of the provision permitting free introduction of certain articles of commerce, when the exporting country imposed exactions or duties which the President deemed reciprocally unequal and unreasonable, delegated legislative power. The following excerpts from the opinion indicate the tests applied in upholding the section:
“That Congress cannot delegate legislative power to the President is a principle universally recognized as vital to the integrity and maintenance of the system of government ordained by the Constitution. The Act of October 1st, 1890, in the particular under discussion, is not inconsistent with that principle. It does not, in any real sense, invest the President with the power of legislation . . . Congress itself prescribed, in advance, the duties to be levied, collected, and paid, on sugar, molasses, coffee, tea, or hides, produced by or exported from such designated country, while the suspension lasted. Nothing involving the expediency or the just operation of such legislation was left to the determination of the President. . . . But when he ascertained the fact that duties and exactions, reciprocally unequal and unreasonable, were imposed upon the agricultural or other products of the United States by a country producing and- exporting sugar, molasses, coffee, tea, or hides, it became his duty to issue a proclamation declaring the suspension, as to that country, which Congress had determined should occur. He had no discretion in the premises except in respect to the duration of the suspension so ordered. But that related only to the enforcement of the policy established by Congress. As the suspension was absolutely required when the President ascertained the existence of a particular fact, it cannot be said that in ascertaining that fact and in issuing his proclamation, in obedience to the legislative will, he exercised the function of making laws. Legislative power was exercised when Congress declared that the suspension should take effect upon a named contingency. What the President was requred to do was simply in execution of the Act of Congress. It was not the making of law. He was the mere agent of the law making department to ascertain and declare the event upon which its expressed will was to take effect. It was a part of the law
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itself as it left the hands of Congress that the provisions, full and complete in themselves, permitting the free introduction of sugar, molasses, coffee, tea, and hides, from particular countries, should be suspended, in a given contingency, and that in case of such suspension certain duties should be imposed.”
And the tests applied in refusing to uphold the provision of an act in Panama Refining Company v. Ryan, 293 U. S. 388 , 79 L. Ed. 446 , 456 and 458, are as follows:
“Accordingly, we look to the statute to see whether the Congress has declared a policy with respect to that subject; whether the Congress has set up a standard for the President’s action; whether the Congress has required any finding by the President in the exercise of the authority to enact the prohibition. . . .
“The Congress left the matter to the President without standard or rule, to be dealt with as he pleased. The effort by ingenious and diligent construction to supply a criterion still permits such a breadth of authorized action as essentially to commit to the President the functions of a Legislature rather than those of an executive or administrative officer executing a declared legislative policy.”
In light of the principles so announced it clearly appears that a legislative enactment is truly such only when it is operative by force of the legislative will expressed therein. Hence, it follows that when an enactment by its terms can become operative only on the election of another, the exercise of such election is the exercise of legislative power.
In State ex rel. Murray, Governor, v. Carter, State Auditor, 167 Okla. 473 , 30 P. 2d 700 , we said:
“It is a proper exercise of legislative power for the Legislature to make the items of appropriation in an institutional appropriation bill dependent upon the existence of a fact happening or to take effect in the future. There is no efficacy to such items appropriated until it is ascertained that those facts exist;
after such ,a determination such items then become operative.”
In the instant case, the law does not become operative when the facts of an emergency or necessity are found by the Governor to exist, but only at the .pleasure and election of the Governor.
Furthermore, when the enactment becomes operative as a law it becomes a rule of conduct and it must declare a legislative policy and fix legal principles which operate as a standard. Such legislative pronouncement of policy and principles is as nondelegable as is the discretion to say whether the law shall or shall not have operative force. Express recognition of this doctrine was given by this court in Gibson Products Co. v. Murphy, 186 Okla. 714 , 100 P. 2d 453 , where it was said:
“The Legislature may not delegate its power to make laws, it must declare the policy and fix legal principles,, but other agencies may be invested with power to ascertain facts to which the policy and principles apply, otherwise ‘there would be infinite confusion in the laws. . . .’. 1 Cooley, Constitutional Limitations, 228, 8th Ed.”
In my opinion, the fact that the Legislative enactment here involved is in its entirety violative of the provisions of the Constitution is so patent on .the face thereof as to require no argument to support such conclusion.
There is an utter absence of any legislative prescription that the law is to become operative as such independently of the will of the Governor and there is like absence of any déclared policy or principles , governing the law’s execution other than as may be prescribed by the Governor. On the other hand, both when and how the law is to be operative is expressly committed to the discretion of the Governor. Nor is this grant of legislative authority to be limited in its exercise to divers situations specified in the act, but by subparagraph 8 of section 5 thereof it is made to include “and (8) any circumstance, condition or sitúa
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tion which, in the judgment of the Governor, requires the expenditure of money for the extraordinary protections of the state and for which expenditures specific appropriation has not been made; but not excluding any contingencies or emergencies not specifically enumerated.”
Bearing in mind that “not excluding” as used in the act means the inclusion of “any other contingencies, or emergencies not specifically enumerated,” the grant of the legislative authority can be characterized by no better language than that of Mr. Justice Cardozo in his concurring opinion in the Schechter Case, supra, as follows:
“Here, in the case before us, is an attempted delegation not confined to any single act nor to any class or group of acts identified or described by reference to a standard. Here in effect is a roving commission to inquire into evils and upon discovery to correct them. . . .
“This is delegation running riot.”
The express policy of the act is to give the Governor plenary authority in the legislative field so far as may be necessary to both vitalize the operative force of the act, if by him deemed wise, and, further, to prescribe and effect such of the authorized results as he may determine. These powers necessarily include his ■ power to determine what, if any, emergency shall receive recognition, and which, of two or more, shall receive such recognition, and the amount of the appropriation in every case, and all, of course, in conformity with that standard, if any, his will may prescribe. And, viewed from the standpoint of rights created, an unrecognized victim of an emergency that is clearly within the purview of the act, could have no standing in court to complain unless, perchance, the Governor, solely on his own behest, had established standards, with force of law, that made his own conduct neglectful.
. There are other considerations that might be urged both in support of the
-conclusion
reached by me concerning the law as a whole and as a basis for declaring particular sections of the act unconstitutional independently of the matters here discussed. However, such considerations are most ably discussed in the opinion of Mr. Justice Riley, in which I concur fully, and are additional reasons for holding said act unconstitutional.
Since I find in the majority opinion emphasis laid upon the potentialities of the act for good and the unchallenged integrity of the administration thereof by the Governor, facts which though admittedly true I deem unimportant except for the purpose of being excluded from consideration, I think it appropriate to quote the following from the opinion in Panama Refining Co. v. Ryan, supra:
“None of these provisions can be deemed to prescribe any limitation of the grant of authority in sec. 9 (c).
“Fifth. The question whether such a delegation of legislative power is permitted by the Constitution is not answered by the argument that it should 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.”
Here, we are concerned with the motives of neither the legislative nor executive departments, but with the operative force of constitutional provisions, and we are deeply concerned with the gravity of the duty now resting upon this court in construing and declaring the mandates thereof on the issue here.
For the foregoing reasons, I respectfully dissent:
HURST, V.C.J., and RILEY and ARNOLD, JJ., concur in these views.