Campbell v. White

SUMMERS, Justice,

Concurring in part and dissenting in part.

I agree with much of the majority opinion, disagreeing only with the form this proceeding should take and the application of the rule of law as correctly identified by the majority.

The petitioners are four legislators who seek a writ of prohibition against the Director of State Finance and the State Treasurer to prevent the disbursement of funds. Prohibition is a remedy to restrain the unauthorized exercise of judicial or quasi-judicial power. Draper v. State, 621 P.2d 1142 (Okla.1980). The acts sought to be restrained in this case are not ones occurring in the exercise of judicial or quasi-judicial power. See Jackson v. Independent School Dist. No. 16, 648 P.2d 26 , 31 n. 20 (Okla.1982) where we defined the term quasi-judicial power. A writ of prohibition is not proper for this controversy.

We have long recognized that a State Treasurer is subject to a writ of mandamus to compel him or her to make disbursements that conform to the law of the State. In Bryan v. Menefee, 21 Okla. 1 , 95 P. 471 (1908), State ex rel. Murray v. Carter, 167 Okla. 473 , 30 P.2d 700 (1934) and Board of Commissioners of Marshall County v. Shaw, 199 Okla. 66 , 182 P.2d 507 (1947) writs of mandamus were held appropriate to compel the State Treasurer to comply with the Okla. Const. Art. V §§ 55 and 56. I would thus recast the petitioners’ request for a writ of prohibition as an application for mandamus. Federal Deposit Insurance Corp. v. Tidwell, 820 P.2d 1338, 1342 (Okla.1991).

The majority correctly states that the provisions of a bill must be reasonably germane, relative and cognate to each other. Black v. Oklahoma, a Funding Bd., 193 Okla. 1 , 140 P.2d 740, 743 (1943). See also In re Initiative Petition No. 347, State Question No. 639, 813 P.2d 1019, 1027 (Okla.1991) where the court explained that a different single-subject rule was fulfilled when the text of an act was “germane” to the act’s title. My application of the single-subject rule to the case is slightly different than that of the majority.

No single litmus test exists for determining when two provisions are reasonably related or germane to each other. But a review of some of our cases does indicate factors considered by the court. In examining the nature of a “single subject” the court has looked to the effect and purpose of two provisions. In School Dist. No. 25 of Woods County v. Hodge, 199 Okla. 81 , 183 P.2d 575 (1947) the school act at issue apportioned revenue from motor vehicle registration with 5% to be held in an Oklahoma Tax Commission fund to be ultimately used by the Commission after later appropriation, and 95% was apportioned for the support of common schools. The school act also apportioned revenue from the gross production act. The school act was challenged as violating the single-subject rule because of the two different funding mechanisms and because the funds from one of the revenue sources was to be eventually appropriated to the Tax Commission. Id. 183 P.2d at 582 . In other *276 words, it was argued that setting aside money in a fund for the later appropriation to the Tax Commission and also funding common schools were two different subjects as they related to different funding mechanisms.

The Court noted that the money set aside for the Tax Commission was “apportioned” but not appropriated until subsequent enactment. Id. The court then stated that “The principal subject of the legislation is the public schools of the state. The apportionment or allocation of certain revenues is merely incidental to the main subject.” Id. Under this authority provisions are “incidental” and do not violate the single subject rule when they relate in such a way as to implement a common or related purpose. This shows that having two substantive provisions involving (or relating to) different entities of State government does not necessarily violate the single subject rule. They are related to each other in funding a common goal or subject.

In a different context we discussed the single-subject rule for constitutional amendments, and noted that it was designed, in part, to prevent “log-rolling”, and that in applying the rule courts would examine the “purposes” behind the amendments and determine if they were connected. In re Initiative Petition No. 314, 625 P.2d 595, 602-603 (Okla.1981). Therein we also discussed a “rational relationship” test as examining whether separate provisions (1) possessed a quality of “interdependence” or “an interlocking package”, or (2) if one provision was subordinate to another, or (3) if the challenged provisions were “incidental”, “supplemental” or an “administrative detail” appended to a single legislative subject. Id. 625 P.2d at 607 . My application of this authority leads to a somewhat different result than the majority-

Senate Bill 142

The parties state that S.B. 142 contains appropriations for the State Arts Council, the Oklahoma Department of Libraries, the Will Rogers Memorial Commission, the J.M. Davis Memorial Commission, the Oklahoma Historical Society, the Oklahoma Tourism and Recreation Department, and the Oklahoma Education Television Authority. In S.B. 142 1 the Legislature has identified those agencies as ones that share a common purpose for State government, that purpose being a cultural one. The question presented by the parties is whether the Legislature may group in one bill those State entities with a common purpose and fund them as a group. My answer to that question is yes, when there is a reasonable relation between the agencies to be funded so that a single subject is the object of the legislation.

Obviously, “state government” is not a single subject sufficiently narrow in scope. Johnson v. Walters, 819 P.2d 694, 698 (Okla.1991). At the other end of the spectrum, and equally obvious, funding for a single state agency is sufficiently narrow. Draper v. State, 621 P.2d 1142, 1146 (Okla.1980). In between is such a bill containing appropriations for “cultural” activities of the State. I am of the opinion that this is a single subject when reasonably applied by the Legislature.

The Will Rogers Memorial Commission, the J.M. Davis Memorial Commission, the Oklahoma Department of Libraries, and the Oklahoma Historical Society all clearly involve a common purpose for the funding of state operated museums and libraries and related activities. The Will Rogers Memorial Commission supervises the Will Rogers Memorial, grounds and buildings, and research library. 53 O.S.1991 §§ 45-47.7. 2 The J.M. Davis Memorial Commission is given the duty to preserve certain historic artifacts and provide a place for their viewing. 53 O.S.1991 §§ 201-209. The Oklahoma Historical Society manages museums such as the Cherokee Strip Muse *277 um and Henry S. Johnston Library. 53 O.S.1991 § 4.2. The provisions for the Oklahoma Department of Libraries is located in Title 65 “Public Libraries” and provides the library for state government except those provided by “institutions of higher learning, museums and the Oklahoma Historical Society”. 65 O.S.1991 § 3-102.

The Oklahoma Arts Council is perceived as fulfilling a similar purpose, as it too is characterized as an Oklahoma Historical Society and Association by its inclusion in Title 53. 3 The mission of the Arts Council is stated to include “arts, cultural activities and cultural heritage”, and includes attention to museums, institutes and exhibits. 53 O.S.1991 § 166. This mission is similar to those statutorily recognized activities of the Historical Society.

The Legislature has provided educational television services “by and through the various educational and cultural agencies in the State of Oklahoma under the direction and supervision of the Oklahoma Educational Television Authority”. 70 O.S. 1991 § 23-101. The service provided by the Television Authority is thus reasonably classified as cultural.

Historically, properties managed by the Historical Society and the Oklahoma Tourism and Recreation Department (Tourism) have had some similarities. For example, see the statutory authorization for the transfer of certain museums and property from Tourism to the Historical Society. 53 O.S.1991 § 4.1, 4.2, 4.6, and 4.8. The Tourism and Recreation Department manages lodges, parks, and recreational areas, and assists with special events of local or historical interest. 74 O.S.1991 § 1803. These parks include those in the proximity of museums such as the Cowboy Hall of Fame Park and State Capitol Park. 74 O.S.1991 §§ 1811.4, 1811.4A. Tourism also manages an area at the Cherokee Courthouse Museum, 74 O.S.1991 § 1826, and protects archaeological or anthropological sites in state parks. 74 O.S.1991 § 1828.

I view these facilities and their funding as a long-recognized, interrelated role of state government and within the Legislature’s discretion for lumping together in a single bill.

Section 16 of S.B. 142 takes money appropriated to Tourism for the Quartz Mountain Summer Arts Institute, and designates it “for providing the state match to federal Bureau of Reclamation Matching Fund Program Funds.” Appropriated funds do not exist “in the air”, but are managed by a particular state agency and used for a particular purpose. There is no express provision in section 16 for the identity of the Department to manage, account for, and use the Matching Funds. However, if the language is read as merely redes-ignating Tourism funds that were to be used by that Department in one way (summer arts institute) to another way also used and managed by Tourism then I see no problem with the redesignation. The petitioners’ brief does not identify a different agency for the recipient of the Matching Funds.

This brings me to my one problem with S.B. 142, Section 17. That section takes a prior appropriation to the Department of Commerce and makes the money an appropriation to Tourism. The Legislature has chosen to characterize the Department of Commerce (Commerce) as a state business regulatory agency for the purpose of funding, instead of an agency providing cultural services. The parties agree that the appropriation for Commerce is in S.B. 725, not S.B. 142. My view is that the legislature may reasonably draw lines and specify single subjects, but those lines must be consistent. While Commerce might be considered to be cultural in a certain context it cannot be so considered for funding purposes when the Legislature itself has selected to place it in a different category. Thus I agree with the majority that S.B. 142 is unconstitutional, but only on this one ground.

*278 Senate Bill 725

With regard to S.B. 725 4 the agencies are the Banking Department, Department of Commerce, Commission on Consumer Credit, Oklahoma Horse Racing Commission, State Insurance Department, Department of Labor, Liquified Petroleum Gas Board, Oklahoma Securities Commission. Here too, the parties state that appropriations were made to these agencies, and the petitioner challenges the Bill on the basis of the single-subject rule. The Legislature has identified these eight agencies as related together by a primary purpose of regulating business activities. I do not share the majority’s conclusion that the Bill combines impermissible multiple subjects. The Headstart program, singled out by the majority, is one of the statutorily mandated duties of the Commerce Department in its supervisory role over Community Action Program agencies. See 74 O.S.1991 § 5035, where Commerce is designated to receive Community Services Block Grant Funds from the Federal Government. I fail to see how the appropriation to a statutorily required duty makes the Legislature’s characterization of Commerce as something other than a business regulatory agency.

I believe the majority’s dissatisfaction with a provision involving asbestos is also incorrect. The Department of Labor has statutory jurisdiction over regulation of asbestos, and asbestos monitoring in public as well as private buildings. 40 O.S.1991 §§ 451-455; 27A O.S.Supp.1992 § 6. The provision of S.B. 725 involving asbestos is section 30, and it provides that the Department of Labor will submit annual reports on funds received for asbestos abatement from other state agencies and projected needs for the next fiscal year, an item I find to be reasonably related to an appropriation to the Department of Labor.

Summary

In sum, I agree S.B. 142 is unconstitutional. I concur with the majority’s decision to make the Court’s ruling effective June 30,1994, and for the reasons given by the Court. I find, however, no violation of the single-subject rule in S.B. 725, as all provisions therein are germane to “state business regulatory agencies.”

. Senate Bill 142 is located at Okla.Sess.Laws 1992, Ch. 333, 1577-1585.

. Prior to management by the Commission the property was managed by the Oklahoma Tourism and Recreation Commission. 74 O.S.1991 § 1837. (Editorially recodified from § 1832 to prevent duplication in numbering).

. Title 53 of the Oklahoma Statutes is titled "Oklahoma Historical Societies and Associations” and Chapter 11 therein is the "Oklahoma Arts and Humanities Act” that creates the State Arts Council of Oklahoma. See 53 O.S.1991 §§ 161-172. The Oklahoma Historical Society also conducts arts and crafts programs. 53 O.S. 1991 § 1.5.

. Senate Bill 725 is located at Okla.Sess.Laws 1992, Ch. 337, 1620-1632.