Opinion
Nos. 35291, 35292.
October 30, 1939. Rehearing Denied November 27, 1939.
Appeal from Twenty-First Judicial District Court, Parish of Tangipahoa; Robert S. Ellis, Jr., and Hypolite Mixon, Judges.
Herbert W. Maitrejean, Henry J.D. Harris, and C.M. Rhodes were convicted of violating a regulation of the Louisiana Milk Commission, and they appeal.
Reversed; conviction set aside, and defendants ordered released.
St. Clair Adams Son, of New Orleans, for defendants Harris and Rhodes.
George S. Graham, of New Orleans, for defendant Maitrejean.
David M. Ellison, Atty. Gen., James O'Connor, Asst. Atty. Gen., Bolivar E. Kemp, Jr., Dist. Atty., of Amite, Joseph M. Blache, Jr., Asst. Dist. Atty., of Hammond, and Shelby S. Reid, of Amite, for the State.
The Legislature of 1938, by Act 195, page 476, created the Louisiana Milk Commission. It is provided in Section 1 of the Act that the regulation of the production, manufacture, and sale of milk and milk products "shall be, and the same is, hereby placed" under the supervision of the Commission.
Under the same section of the Act, the Commission was given power and authority to make, publish, and enforce all regulations necessary to secure to the public a pure, clean, wholesome, and sanitary supply of milk, and such rules and regulations as might be thought necessary to promote and encourage the production of milk and the manufacture of milk products throughout the state. And the Commission was authorized to adopt rules and regulations "for the protection of said producers in the collection of the amounts due and to become due them from * * * distributors, wholesalers or pasteurizers of milk, or milk products as may be deemed advisable".
By Section 3 of the Act, the Commission was authorized and empowered to make all necessary rules and regulations for carrying out the purposes of the Act, and to promulgate the same from time to time. This section of the Act specifically provides that: "any violation of such regulations shall be a misdemeanor and shall be punishable by fine or imprisonment or both as provided by Section 8 hereof."
Section 8 of the Act, in so far as it need be quoted, reads as follows: "That any person who shall violate any of the provisions of this Act, or any of the rules and regulations adopted by the Louisiana Milk Commission under the provisions of this Act, shall be punished upon conviction, by a fine of no less than Ten Dollars, nor more than Two Hundred Dollars, or by imprisonment in the parish jail for no less than ten days nor more than six months, or by both, such fine and imprisonment at the discretion of the Court."
Following the adoption of this Act, the Milk Commission made and promulgated the following regulation: "It shall be unlawful for any person, firm or corporation engaged as a distributor, pasteurizer or manufacturer, of milk or milk products, as herein defined, to engage in such business and or to buy milk from any producer, without having first posted a bond, with the commission in a sufficient amount to cover at least fifteen (15) days' shipment of milk, to be computed by the commission, on the average of the three months immediately preceding the date of such bond; said bond to be executed by a surety company authorized to do business in Louisiana, as surety thereon."
These defendants were indicted for violating this rule, the indictment setting out that they, being engaged as distributors, pasteurizers, and manufacturers of milk and milk products, "did then and there wilfully and unlawfully buy milk from a producer, without having first posted a bond with the Louisiana Milk Commission in a sufficient amount to cover at least fifteen days' shipment of milk computed by the commission on an average of the three months immediately preceding the date of the demand by the Louisiana Milk Commission for the said bond, in violation of the Rules and Regulations of the Louisiana Milk Commission adopted in accordance with the provisions of Sections 1 and 3 of Act 195 of 1938."
It is thus clear that, although the Act in Section 6 specifically laid down certain rules and regulations relating to the production, sale, and handling of milk and milk products, the defendants were not indicted for violating these legislative provisions, but were indicted for violating "the Rules and Regulations of the Louisiana Milk Commission".
Defendants filed motions to quash the indictments on the ground that the rule or regulation of the Milk Commission making it unlawful for distributors or pasteurizers of milk to engage in such business or to buy milk from a producer without having first posted a bond to cover at least 15 days' shipment of milk, and that part of Act 195 of 1938 upon which said regulation was based, are both unconstitutional and therefore void, because they violate Section 1, Article II, and Section 1, Article III, of the Constitution of 1921, in that the Act transfers and delegates to the Milk Commission functions wholly legislative, which, under the Constitution, "the Legislature must exercise and perform itself, and which cannot be delegated to a subordinate State agency". In other words, defendants challenge the constitutionality of the rule or regulation adopted by the Milk Commission, on the ground that the Legislature could not validly delegate to the Milk Commission the power to declare and provide what conduct on the part of an individual shall constitute a misdemeanor, it being defendants' contention that legislative power for state purposes can be validly exercised only by the Legislature itself and cannot be constitutionally delegated to some subordinate board. It was pointed out that the Constitution has not, by any general or special ordinance, authorized the Legislature to create the Louisiana Milk Commission and to endow it with legislative powers.
The motions to quash were overruled, and the defendants were brought to trial. They were convicted and sentenced. From the conviction and sentence they appealed.
The sole question presented to us by this appeal is whether or not the rule or regulation adopted by the Milk Commission, making it unlawful for any person engaged as distributor, pasteurizer, or manufacturer of milk or milk products to engage in such business or to buy milk from a producer without first posting a bond with the Commission, is constitutional. If that rule or regulation is invalid, then the indictments are invalid, and the prosecution must fall.
Whether that rule of the Commission is valid or not depends upon whether the Legislature exceeded its constitutional authority in delegating to the Commission the authority to declare what conduct on the part of an individual shall be unlawful.
The constitutionality of the Act as a whole has not been attacked in this proceeding. The defendants have challenged only that part of it which delegates to the Commission the power and authority to declare unlawful certain conduct of individuals, which conduct would otherwise be innocent or harmless.
Section 1, Article II, of the Constitution declares that "The powers of the government of the State of Louisiana shall be divided into three distinct departments — legislative, executive, and judicial". Section 1, Article III, reads as follows: "The legislative power of the State shall be vested in a Legislature, which shall consist of a Senate and a House of Representatives."
If to engage as dealer in milk products or to buy milk from a producer without first posting a bond is unlawful, it is so because the Milk Commission has said so, and not because the Legislature itself has denounced such conduct as unlawful.
In State v. Gaster, 45 La.Ann. 636, 12 So. 739, 740, this court said: "All crimes in Louisiana are statutory, and there can be no crime which is not defined and denounced by statute. The determination and definition of acts which are punishable as crimes are purely legislative functions, which cannot be delegated to, or exercised by, the judiciary."
In that case, the defendant was prosecuted for committing a misdemeanor in office, as denounced by Section 869 of the Revised Statutes (Act 120 of 1855). That section of the Revised Statutes, as it then read, provided that: "If any judge, justice of the peace, sheriff or other civil officer, shall be guilty of any misdemeanor in the execution of either of their respective offices, he shall on conviction suffer fine or imprisonment, or both, at the discretion of the court."
The defendant was a member of the police force in New Orleans. The indictment against him set out that it was his duty as such officer to arrest, either with or without a warrant, all persons found in the act of violating any law of the state; that he had actual knowledge that one Emile Bauman kept his saloon open on Sunday, in violation of the so-called "Sunday Law" of the state, and that defendant "did then and there unlawfully neglect and refuse to arrest the said Emile Bauman".
Defendant moved to quash the indictment on several grounds, one of which was: "That, if said information is based on section 869 of the Revised Statutes, then and in that case said statute is null and void, and contrary to the constitution of the state of Louisiana, in this: That the said statute neither specifies or defines any crime known to the laws of the state."
The motion to quash was overruled, and defendant was convicted and sentenced. On appeal, this court sustained the motion to quash and set the conviction and sentence aside on the ground that Section 869 of the Revised Statutes does not say what acts constitute the crime denounced, thus imposing upon the judiciary "not only the judicial task of apportioning * * * what shall be the punishment, but also the legislative duty of declaring what acts shall be misdemeanors".
The court in the course of its opinion said: "This statute denounces as a crime, on the part of civil officers, `any misdemeanor in the execution of their respective offices.' It does not, on its face, undertake to define, in any manner, what acts are misdemeanors in office, and, unless there is some other law which furnishes such definition, there is no other source to which we may look for it, except to the discretion of the judiciary, which, in each case brought before it, will be vested with determining whether or not the particular acts charged, ranging from the most trivial to the most serious derelictions, from the most malicious infractions of duty to the most innocent errors of judgment, shall or shall not be punished as crime. This would operate a delegation to the judiciary of powers purely legislative, in flagrant violation of the constitutional prohibition."
In State v. Smith, 30 La.Ann. 846, the defendant was convicted of the crime of incest, as denounced by Section 789 of the Revised Statutes, which provides that: "Whoever shall commit the crime of incest shall, on conviction thereof, suffer imprisonment at hard labor for life."
Counsel for defendant requested the court to charge the jury "that as incest was not a crime at common law, or defined thereunder in 1805 and previously, no conviction could be had under the statutes of this State".
The court refused to give the charge, and on appeal this court set the conviction and sentence aside, holding that: "The crime of incest, although denounced, is not defined by any statute of Louisiana, and hence, there can be no conviction for incest under the laws of this State." (Par. 2, Syllabus.)
In State v. Desforges, 47 La.Ann. 1167, 1213, 17 So. 811, 818, the court quoted with approval the following statement found in State v. Gaster, supra: "All crimes in Louisiana are statutory, and there can be no crime which is not defined and denounced by statute."
In State v. Comeaux, 131 La. 930, 60 So. 620, the defendant was prosecuted under Act 202 of 1912, denouncing the crime of "indecent assault". The indictment was quashed in the lower court on the ground that the act did not define the crime sought to be punished. The State appealed, and, in affirming the judgment, we said: "As all crimes in Louisiana are statutory, there can be no crime which is not defined and denounced by statute. And, as Act N. 202 of 1912 does not define the crime of indecent assault, there is no such crime provided for by statute of this state. It therefore follows that the action of the trial court in quashing an indictment found under that act decided correctly, and the judgment appealed from will be affirmed. State v. Smith, 30 La.Ann. 846; State v. Gaster, 45 La.Ann. 636, 12 So. 739."
These cases and others which might be cited firmly establish the rule that all crimes in Louisiana are statutory and that there can be no crime "which is not defined and denounced by statute". The same is true as to misdemeanors.
Another equally well established general rule is that legislative power to create and define offenses against the state cannot be delegated. In City of Shreveport v. Price et al., 142 La. 936, 77 So. 883, 886, this court said: "The general rule is that legislative power cannot be delegated. An exception to that rule is recognized in the case of municipal corporations, to which the legislative power may be delegated in whatever measure may be justified by the exigencies of local government; by necessity, or greater convenience in the administration of public affairs."
The court quoted with approval the following text from 12 C.J. 859: "Authority to define offenses against the state and to designate what acts shall be punishable as such cannot be delegated."
The court also cited with approval 12 C.J. 861, where we find the rule stated to be that: "In the absence of express constitutional sanction, however, legislative powers that are not essentially municipal in character may not be delegated to the municipal authorities."
The court also quoted with approval the following from Cooley Const.Lim. 211: "Whenever the municipality shall attempt to exercise powers not within the province of local self-government, whether the right to do so is claimed under express legislative grant, or by implication from the charter, the act must be considered as altogether ultra vires, and therefore void."
It is thus seen, as was held in the Price case, that, whereas the Legislature may delegate to municipal corporations authority to define offenses, it may do so only as to such measures as may be justified by the exigencies of local self-government or for convenience in the administration of public affairs.
Municipal corporations are subdivisions of the state, created by the sovereign, and are state agencies, chartered for the purpose of discharging some of the functions of government. They are branches of the state government, established "for the purpose of aiding the Legislature in making provision for the wants and welfare of the public within the territory for which they are organized". They are merely "instrumentalities of the state for the better administration of the government in matters of local concern". They are established to share in the government of the country. They are governmental institutions, designed to create local government over a limited territory. They are parts of the state government, exercising delegated political powers for public purposes. See Words and Phrases, "Municipal Corporations".
Municipal corporations are more than mere subordinate state boards. Now if, in the absence of express constitutional sanction, legislative powers that are not essentially municipal in character may not be delegated to municipal corporations, it would be going too far to say that the Legislature could, without constitutional sanction, delegate to a subordinate state board the power to declare what conduct is unlawful or what shall be an offense against the state.
In State v. Billot, 154 La. 402, 97 So. 589, the accused was indicted for killing a wild deer during the closed season. His defense was that there was no statute of the state fixing an open or closed season for killing wild deer. The defense was sustained by this court, although the Conservation Commission had fixed an open and a closed season, under authority delegated to it by the Legislature by Act 204 of 1912, which authorized the Conservation Commission to fix the open season during which wild deer might be killed and to vary the season to suit conditions in the different parishes.
The defendant rested his case upon the proposition "that the Legislature cannot delegate to a branch of the executive department of the government the power to enact laws".
This court disposed of the case by saying: "As the Legislature has not fixed an open season in which wild deer may be killed or a closed season in which they may not be hunted, it follows that no statute of the state has been violated, and, as the Legislature could not vest the conservation commission with legislative power, the indictment against the accused must fall."
In State v. Watkins, 176 La. 837, 147 So. 8, 9, the constitutionality of Act 238 of 1932 was challenged on the ground that it delegated to the electors authority to repeal the Hood Law (Act 39, Extra Session of 1921). The act was held to be unconstitutional on the ground, as stated by the court, that: "it is settled that the legislative power conferred upon the Legislature, under constitutional provisions like those of the Constitution of Louisiana, cannot be by the Legislature delegated to the electors, or to any other body or authority." Citing Cooley's Constitutional Limitations, 8th Ed., vol. 1, pp. 224, 238, 239, 240, 242, 244; 12 C.J. § 323, pp. 839 and 840; § 324, pp. 841 and 842; R.C.L., § 165, p. 164; § 166, p. 165; § 167, pp. 166, 167, 168.
The rulings of this court are uniform in upholding the above stated general principles.
The ruling in State v. Snyder, 131 La. 145, 59 So. 44, is not inconsistent with the ruling in the above cited cases. In the Snyder case, the defendant was prosecuted for violating a regulation contained in the Sanitary Code prepared and promulgated by the State Board of Health, which regulation prohibited the use of saccharin in any food or product. Section 3, Act 98 of 1906, made it a misdemeanor for any person to violate the provisions of the Sanitary Code.
The defendant challenged the constitutionality of the regulation made by the State Board of Health, on the ground that the Legislature could not validly delegate to that board the power to declare and provide "what conduct shall constitute a crime". The court said this contention would be well founded if it were not for Article 296 of the Constitution (of 1898), which reads as follows: "The General Assembly shall create for the State, and for each parish and municipality therein, Boards of Health, and shall define their duties, and prescribe the powers thereof."
The ruling of this court upholding the prosecution was based upon the court's finding that the legislative delegation of authority to the State Board of Health, to make such rules and regulations as the board might deem advisable, was specifically authorized by the Constitution itself. The opinion shows that the court would not have upheld the prosecution had it not been for the specific authorization to the Legislature, found in Article 296 of the Constitution of 1898.
The Snyder case was followed and reaffirmed in Board of Health v. Susslin, 132 La. 569, 61 So. 661.
Counsel for the State say in their brief that the statement in the Snyder case, that "The contention of defendant would be well founded if it were not for Article 296 of the Constitution", was unnecessary and "is hence purely obiler dictum".
Counsel are mistaken. If it had not been for the specific delegation to the Legislature found in that article of the Constitution, it would have been necessary for the court, in making the ruling it did, to overrule the cases of State v. Gaster, State v. Smith, and State v. Desforges, supra.
The cases cited by counsel for the State in their brief are not pertinent to the sole issue here involved. The cases cited have to do mainly with the question as to whether the Legislature may regulate and control the production of milk and milk products, and provide for the fixing of prices. They cite quite a number of milk-control and price-fixing cases. But none of them relates to the question as to whether or not the Legislature may delegate to a board or agency authority to declare what shall be unlawful or to define what shall constitute a crime or a misdemeanor.
Counsel for defendants attacked Act 195 of 1938 on other grounds which we think it unnecessary to discuss.
For the reasons assigned, it is adjudged and decreed that those parts of Sections 3 and 8 of Act 195 of 1938, which provide that the violation of the rules and regulations of the Louisiana Milk Commission shall constitute a misdemeanor, are unconstitutional and therefore void; and that the rule or regulation of said Milk Commission, which makes it unlawful to engage as a distributor, pasteurizer, or manufacturer of milk or milk products or to buy milk from a producer without first having posted bond with the said Milk Commission, is likewise unconstitutional and void. The judgment appealed from, overruling the motion to quash and convicting defendants, is reversed; the motion to quash is sustained, the conviction and sentence of the accused are set aside, and they are ordered released.
The defendant was indicted, tried, convicted and sentenced to pay a fine of $100 and costs and in default of payment of fine and costs to serve 90 days in the parish jail for violating the rules and regulations of the Louisiana Milk Commission, adopted September 1, 1938 under the provisions of Act 195 of 1938. From the conviction and sentence the defendant appeals.
The pertinent sections of Act 195 of 1938 are sections 1, 3, 8, 12 and 13, which read:
"Section 1. Be it enacted by the Legislature of Louisiana, That the regulation of the production, manufacture and sale of milk, milk products and all substitutes for milk, shall be, and the same is, hereby placed under the supervision of the Louisiana Milk Commission as hereinafter created, which said Commission shall have the power and authority to make, publish and enforce all regulations necessary to secure to the public a pure, clean, wholesome and sanitary milk supply, and to promote and encourage the production and manufacture of milk and milk products throughout the State, including the right to make such regulations as will protect the production of milk in the quality and price of milk to be sold by them to distributors, pasteurizers and other wholesalers, and to provide such means for the protection of said producers in the collection of the amounts due and to become due them from such distributors, wholesalers or pasteurizers of milk, or milk products as may be deemed advisable.
* * * * * *
"Section 3. That said Louisiana Milk Commission is hereby authorized and empowered to make all necessary rules and regulations for the carrying out of purposes of this Act, and to promulgate same by issuance, from time to time, of necessary regulations which shall be mailed to all producers of milk and all others engaged in production, sale or manufacture of milk or milk products, and any violation of such regulations shall be a misdemeanor and shall be punishable by fine or imprisonment or both as provided by Section 8 hereof.
* * * * * *
"Section 8. That any person who shall violate any of the provisions of this Act, or any of the rules and regulations adopted by the Louisiana Milk Commission under the provisions of this Act, shall be punished upon conviction, by a fine of no less than Ten Dollars, nor more than Two Hundred Dollars, or by imprisonment in the parish jail for no less than ten days nor more than six months, or by both, such fine and imprisonment at the discretion of the Court.
* * * * * *
"Section 12. That all laws or parts of laws contrary to or inconsistent with the provisions of this Act, and especially Act 192 of 1932, be and the same are, hereby repealed. Provided, that this Act shall not be held to repeal any authority or power vested by law in the State Board of Health relative to the protection of the public health and sanitation in the production or sale of milk, nor any rule or regulation or provision of the sanitary code adopted pursuant to law.
"Section 13. That the regulation hereby provided for shall in no way conflict with the United States Public Health Service milk ordinance and code, which ordinance and code is hereby acknowledged as the standard milk regulation."
The rules and regulations of the Louisiana Milk Commission adopted September 1, 1938 under which the indictment was drawn reads, "It shall be unlawful for any person, firm or corporation engaged as a distributor, pasteurizer or manufacturer, of milk or milk products, as herein defined, to engage in such business and or to buy milk from any producer, without having first posted bond, with the commission in a sufficient amount to cover at least fifteen (15) days' shipment of milk, to be computed by the commission, on the average of the three months immediately preceding the date of such bond; said bond to be executed by a surety company authorized to do business in Louisiana, as surety thereon."
The indictment charges the defendant, "being then and there engaged as a distributor, pasteurizer and manufacturer of milk and milk products, did then and there wilfully and unlawfully buy milk from a producer, without having first posted a bond with the Louisiana Milk Commission in a sufficient amount to cover at least fifteen days' shipment of milk computed by the commission on the average of the three months immediately preceding the date of the demand by the Louisiana Milk Commission for the said bond, in violation of the Rules and Regulations of the Louisiana Milk Commission adopted in accordance with the provisions of Sections 1 and 3 of Act 195 of 1938."
The defendant contends that the rules and regulations of the Louisiana Milk Commission are unconstitutional and void on the three different grounds set out in the defendant's motion to quash the indictment, in the defendant's motion in arrest of judgment and in the defendant's assignment of errors.
The defendant contends: First, that the Rules and Regulations of the Louisiana Milk Commission, prohibiting distributors or pasteurizers of milk from engaging in such business, or from buying milk from any producer without having first posted a corporate surety bond to cover at least fifteen days' shipments of milk, and Act No. 195 of 1938, upon which said resolution is based, are both unconstitutional and therefore void, because they violate the Constitution of Louisiana of 1921, Article II, Sections 1 and 2, and Article III, Section 1 thereof, in that said Act transfers and delegates to the Louisiana Milk Commission functions wholly legislative, which, under the Constitution, the Legislature must exercise and perform itself, and which cannot be delegated to a subordinate State agency. The Constitution has not, by any general or special ordinance, authorized the Legislature to create the Louisiana Milk Commission and to endow it with the legislative powers.
The defendant in support of this contention cites State v. Snyder, 131 La. 145, 59 So. 44; Board of Health v. Susslin, 132 La. 569, 61 So. 661; State v. Gaster, 45 La.Ann. 636, 12 So. 739; State v. Billot, 154 La. 402, 97 So. 589; State ex rel. Higgins v. Aicklen, 167 La. 456, 119 So. 425; State v. Watkins, 176 La. 837, 147 So. 8; City of Shreveport v. Herndon, 159 La. 113, 105 So. 244; City of Shreveport v. Price, 142 La. 936, 77 So. 883; American Bakeries Co. v. Board of Health, 186 La. 433, 172 So. 518; Schechter Poultry Corporation v. United States, 295 U.S. 495, 55 S.Ct. 837, 79 L.Ed. 1570, 97 A.L.R. 947.
From an examination of the cases cited by the defendant it appears that they are authority to the effect that the Legislature cannot delegate the legislative power itself. From the argument on behalf of the State and from the brief filed herein on behalf of the State, it appears that the State concedes that the Legislature cannot delegate legislative power. Under these circumstances it is unnecessary for us to analyze and discuss the cited cases for the reason that both sides agree on the principle of law that the Legislature cannot delegate legislative power. It also appears that the parties agree on the principle of law that the Legislature may provide, under adequate standards fixed for it, for the execution of its legislative policy by administrative agencies and confer powers of discretion upon the administrative officer charged with the execution of its policy, but it cannot surrender the legislative power itself.
The counsel for the defendant argues that the rules and regulations requiring the defendant to give bond cannot be declared constitutional because some other part of the statute on which the regulation is based, fixing the price of milk is constitutional, since the defendant can only attack the constitutionality of the statute in the respect in which the statute affects his rights. State v. Standard Oil Co., 188 La. 978, 178 So. 601; State v. Hill, 168 La. 761, 768, 123 So. 317, 69 A.L.R. 574; Interstate Trust Banking Co. v. Baker, 169 La. 766, 772, 126 So. 54. In other words, the counsel contends that this case must be determined exclusively upon the validity of the commission's power to adopt the bond regulation and not upon the validity of the price fixing powers of the commission.
The defendant cites the following from Noyes v. Erie and Wyoming Farmers Cooperative Corporation, 170 Misc. 42, 10 N.Y.S.2d 114, 121, viz.:
"The Legislature may provide, under adequate standards fixed by it, for the execution of its legislative policy by administrative agencies, and may confer powers of discretion upon the administrative officer charged with the execution of its policy. It cannot surrender or delegate the legislative power itself. `The Legislature is free to choose among conflicting considerations, and would the law according to its own will subject only to constitutional restrictions. It cannot delegate the same freedom of choice to an administrative officer. There it must erect guideposts which will enable the officer to carry out the will of the Legislature.' Matter of Seignious v. Rice, 273 N.Y. 44, 50, 6 N.E.2d 91, 93. See also Stanton v. Board of Supervisors of Essex County, 191 N.Y. 428, 432, 84 N.E. 380; Darweger v. Staats, 267 N.Y. 290, 305, 196 N.E. 61.
"Here the fixing of minimum prices to producers of milk has not expressly been found by the Legislature to be a solution for the evils found to exist within the dairy industry, or been expressly incorporated within the declared public policy in relation to those evils. In the absence of such express finding or declaration, the grant of power to the Commissioner to determine that the fixing of prices should be undertaken in the public interest under a declared policy silent in respect of price fixing, is a naked delegation of legislative power. It is he who makes the determination, essentially legislative in every aspect from which it may be viewed whether price fixing is a desirable public policy.
"If the statute, read in its entirety, be construed as a determination by the Legislature by implication, that price fixing for milk is the public policy of the state, the power conferred upon the Commissioner is nevertheless an invalid delegation of legislative power, since the standards sought to be established for the exercise of the power admit of arbitrary determinations of legislative policy upon information that the Commissioner has `otherwise' obtained from unfixed and uncertain sources as well as from evidence adduced before him. His determination, under the delegated power conferred, may thus be based wholly upon processes for which there is no standard. See discussion of legislative standards in Matter of Elite Dairy Products v. Ten Eyck, 271 N.Y. 488, 494, 495, 3 N.E.2d 606.
"The power to set up and enforce the equalization fund is open to an additional and more serious objection of being a delegation of legislative power without adequate standards, for it is doubtful if the Commissioner is required in any circumstances to grant a hearing upon this phase of his order. The hearing seems to be provided only upon the question of whether the prices should be fixed and not upon the question whether, if a price fixing order is made, an equalization plan should also be put in operation. All that seems necessary for the establishment of the equalization plan, under which dealers are compelled to pay their money or the money of their producers, to other dealers and other producers, is the mere arbitrary determination of the Commissioner and the arbitrary assent of the seventy-five per cent of the producers. The power to establish the equalization fund and to compel contributions to it is again a naked delegation of legislative power to the Commissioner and to the assenting percentage of producers who concur with him in the promulgation of the order, without any standard whatever, and without express legislative declaration of finding or policy. A delegation of legislative power to a majority of producers constitutes as well an invalid delegation as one to an administrative officer. Carter v. Carter Coal Co., 298 U.S. 238, 311, 312, 56 S.Ct. 855, 80 L.Ed. 1160. See also discussion in Highland Farms Dairy v. Agnew, 300 U.S. 608, 614, 57 S.Ct. 549, 81 L.Ed. 835. A declared legislative policy, a standard for administrative action and a definite finding in the exercise of the authority conferred are each the necessary requisites for vesting of federal officers with the power to carry out the legislative policies of Congress. Panama Refining Co. v. Ryan, 293 U.S. 388, 415, 55 S.Ct. 241, 79 L.Ed. 446. While the distribution of powers within a state is usually a state question (Highland Farms Dairy v. Agnew, supra), the rule of delegation of powers in New York is substantially similar to the Federal rule."
It is apparent that there is no dispute between the State and the defendant on the principles of law involved, but it appears the whole controversy resolves itself to the question of whether or not the power granted by the Legislature is legislative or administrative.
In the recent case of Board of Barber Examiners v. Parker, 190 La. 214, 182 So. 485, 504, in approving the rules applicable to a statute of this nature, it was stated:
"An Act of the Legislature is presumed to be legal until it is shown that it is manifestly unconstitutional and all doubts as to its validity are resolved in favor of its constitutionality. Becker Steel Co. v. Cummings, 1935, 296 U.S. 74, 56 S.Ct. 15, 80 L.Ed. 54; Alaska Packer's Ass'n v. Industrial Accident Commission, 1935, 294 U.S. 532, 55 S.Ct. 518, 79 L.Ed. 1044; Borden's Farm Products Co. v. Baldwin, 1934, 293 U.S. 194, 55 S.Ct. 187, 79 L.Ed. 281; Life Cas. Ins. Co. v. McCray, 1934, 291 U.S. 566, 54 S.Ct. 482, 78 L.Ed. 987; New Orleans v. Louis Robira, 1890, 42 La.Ann. 1098, 8 So. 402, 11 L.R.A. 141.
"The above rule is strictly observed in cases where the Legislature enacted a law in the exercise of its police power. Slaughter House Cases, 1873, 16 Wall. 36, 21 L.Ed. 394; Euclid v. Ambler Realty Co., 1926, 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303, 54 A.L.R. 1016; Thomas Cusack Co. v. Chicago, 1917, 242 U.S. 526, 37 S.Ct. 190, 61 L.Ed. 472, L.R.A. 1918A, 136, Ann.Cas. 1917C, 594; Hadacheck v. Sebastian, 1915, 239 U.S. 394, 36 S.Ct. 143, 60 L.Ed. 348, Ann.Cas. 1917B, 927; Erie R. Co. v. Williams, 1914, 233 U.S. 685, 34 S.Ct. 761, 58 L.Ed. 1155, 51 L.R.A., N.S., 1097.
"The Legislature is presumed to have acted only after a thorough investigation and upon finding that the interest of the public required the legislation in question. Durand v. Dyson, 1916, 271 Ill. 382, 111 N.E. 143, Ann.Cas. 1917D, 84; Townsend v. Yeomans, 301 U.S. 441, 57 S.Ct. 842, 81 L.Ed. 1210; Max Factor Co. v. Kunsman, 5 Cal.2d 446, 55 P.2d 177, 178; Borden's Farm Products Co. v. Baldwin, supra."
It has been held in a number of states that the state may require of those engaged in the distribution of milk products or food products a license and that a bond could be provided to secure payment to the producers for their products. People v. Perretta, 253 N.Y. 305, 171 N.E. 72, 84 A.L.R. 636; People v. Beakes Dairy Co., 222 N.Y. 416, 119 N.E. 115, 3 A.L.R. 1260; Payne v. State of Kansas, ex rel. Brewster, 248 U.S. 112, 39 S.Ct. 32, 63 L.Ed. 153; State ex rel. v. Mohler, 98 Kan. 465, 158 P. 408; State ex rel. Hickey v. Levitan, 190 Wis. 646, 210 N.W. 111, 48 A.L.R. 434; Lasher v. People, 183 Ill. 226, 55 N.E. 663, 47 L.R.A. 802, 75 Am. St. Rep. 103; State ex rel. Beek v. Wagener, 77 Minn. 483, 80 N.W. 633, 778, 1134, 46 L.R.A. 442, 77 Am.St.Rep. 681.
In Reynolds v. Milk Commission of Virginia, 163 Va. 957, 179 S.E. 507, it was held to the effect that a statute granting power to a milk commission to adopt rules necessary to carry out the purpose of the act, including the division of the state into market areas and milk sheds, requirement and classification of license and the fixing of maximum and minimum prices, did not violate the Constitution in that it delegated the commission powers to enact legislation, the power being merely administrative.
A statute was upheld in the case of People v. Perretta, supra, that required the purchaser of milk to obtain a license from the commission of agriculture and markets and post bond to secure the payment of the amounts due the producers of milk, etc.
In the case of People v. Beakes Dairy Co., supra, it was held to the effect that where the commissioner of agriculture was invested by the Legislature with the power to waive bond or security in certain cases that it was not a delegation of legislative power. Other decisions holding that rules and regulations of milk control boards were constitutional are Franklin v. State ex rel. Alabama State Milk Control Board, 232 Ala. 637, 169 So. 295; Bohannan v. Duncan, Director, etc., 185 Ga. 840, 196 S.E. 897; Miami Home Milk Producers Association v. Milk Control Board, 124 Fla. 797, 169 So. 541; Albert v. Milk Control Board, 210 Ind. 283, 200 N.E. 688; Rohrer v. Milk Control Board, 322 Pa. 257, 186 A. 336; State Board of Milk Control v. Newark Milk Co., 118 N.J. Eq. 504, 179 A. 116; People v. Nebbia, 262 N.Y. 259, 186 N.E. 694; State v. Fairmont Creamery Co., 162 Minn. 146, 202 N.W. 714, 42 A.L.R. 548; State ex rel. Finnegan v. Lincoln Dairy Co., 221 Wis. 1, 265 N.W. 197, 851.
It appears that a majority of the authorities are to the effect that the Legislature can delegate authority to administrative agencies where it lays out the policy setting forth the ends desired and that the administrative agency can make the rules and regulations and employ the means necessary to carry out that end. This being an administrative function and not a legislative function. It was also held to this effect in the case of State ex rel. v. Mohler, supra.
The rule is well stated in the case of Albert v. Milk Control Board, supra [ 210 Ind. 283, 200 N.E. 694]: "`While it is necessary that a law, when it comes from the lawmaking power, should be complete, still there are many matters relating to methods or details which may be by the legislature referred to some designated ministerial officer or body. All of such matters fall within the domain of the right of the legislature to authorize an administrative board or body to adopt ordinances, rules, by-laws, or regulations in aid of the successful execution of some general statutory provision. Cooley Const.Lim. [p.] 114.'
"The rule in respect to the delegation of legislative power is well stated in Locke's Appeal, 72 Pa. 491, 13 Am.Rep. 716, as follows: `Then, the true distinction, I conceive, is this: The Legislature cannot delegate its power to make a law; but it can make a law to delegate a power to determine some fact or state of things upon which the law makes, or intends to make, its own action depend. To deny this would be to stop the wheels of government. There are many things upon which wise and useful legislation must depend, which cannot be known to the lawmaking power, and must, therefore, be a subject of inquiry and determination outside of the halls of legislation.'"
The rule is laid down in the case of Rohrer v. Milk Control Board, supra [ 322 Pa. 257, 186 A. 345]:
"As to the objection that the statute delegates legislative power to the milk control board, that gives me little concern or anxiety. Courts which have accepted as constitutional the Public Service Company Law and the Anthracite and Bituminous Mine Codes, and the acts giving authority to the Department of Labor and Industry and the Department of Health to adopt rules and regulations, etc., (see Gima v. Hudson Coal Co., 106 Pa. Super. 288, 299, 161 A. 903), should not strain at the powers given the Legislature's agent, the milk control board, under this act. A moment's consideration must convince an open mind of the impracticability of the General Assembly itself conducting the hearings and arriving at the conclusions necessary for fixing fair rates for producer, distributor, dealer, and consumer in widely scattered and wholly dissimilar sections of the state. It has set forth in plain and unmistakable language the basic purposes and primary standards which it has in mind in an attempt to remedy the mischievous conditions which are present in the milk industry, a continuance of which threatens the welfare and well-being of the whole people; and, having done so, it may lawfully appoint the board its agent upon whom devolves the duty to carry out the legislative policy. It has not delegated its power to make law, but has delegated the power to determine facts and apply the intention of the Legislature to conditions thus determined. To make use of an agency adapted to put into effect the details which it would be impracticable for the Legislature to look after is not making the agent a legislative body nor acting in violation of the constitutional provision: `The legislative power of this Commonwealth shall be vested in a General Assembly which shall consist of a Senate and a House of Representatives.' Article 2, § 1.
"I can see no real distinction in this respect between the Public Service Company Law (Act of July 26, 1913, P.L. 1374 (see 66 P.S. § 1 et seq.) and the Milk Control Act now under review. It was wholly impracticable for the General Assembly itself to regulate public service corporations in the interest of the public welfare and fix schedules of rates applicable to all sorts of utilities in widely divergent communities, which were fair, just, and reasonable to both the public and the utility. It was necessary to appoint a board to act as its agent in the securing of the information necessary to be obtained before specific rules and regulations could be promulgated and rates which were just, fair, and reasonable to both the public and the utility could be determined."
In the case of State Board of Milk Control v. Newark Milk Co., 118 N.J. Eq. 504, 179 A. 116, 125, which is cited in a majority of the cases dealing with milk control and cited with approval by two of our sister states in the case of Franklin v. State ex rel. State Milk Control Board, 232 Ala. 637, 169 So. 295, and Miami Home Milk Producers Association v. Milk Control Board, 124 Fla. 797, 169 So. 541, we find this doctrine laid down, viz.:
"The Legislature indubitably has power to vest a large measure of discretionary authority in the agency charged with the administration of a law, enacted in pursuance of the police power, to secure the health and safety of the people. This authority is one of common exercise; it invokes the principle that sustains rate-making laws, and the authority vested in examining and control boards created to regulate the professions, trades, businesses, and other callings, deemed by the law-making body to be the proper subjects of governmental supervision. It is only necessary that the statute establish a sufficient basic standard — a definite and certain policy and rule of action for the guidance of the agency created to administer the law. The exercise of such authority is neither legislative nor judicial in a constitutional sense. Tested by these considerations, the act in question does not offend the constitutional inhibition invoked. Compare Interstate Commerce Commission v. Goodrich Transit Co., 224 U.S. 194, 32 S. Ct. 436, 56 L.Ed. 729; Red `C' Oil Mfg. Co. v. Board of Agriculture, 222 U.S. 380, 32 S.Ct. 152, 56 L.Ed. 240; Panama Refining Co. v. Ryan, 293 U.S. 539, 55 S.Ct. 83, 79 L.Ed. [645]; Buttfield v. Stranahan, 192 U.S. 470, 24 S.Ct. 349, 48 L.Ed. 525."
In a recent case, Milk Control Board v. Eisenberg Farm Products, 306 U.S. 346, 59 S.Ct. 528, 531, 83 L.Ed. 752, in passing on whether or not a resolution of a milk control board unconstitutionally regulates and burdens interstate commerce, Justice Roberts stated:
"The purpose of the statute under review obviously is to reach a domestic situation in the interest of the welfare of the producers and consumers of milk in Pennsylvania. Its provisions with respect to license, bond, and regulation of prices to be paid to the producers are appropriate means to the ends in view."
The Legislature is presumed to have acted after a thorough investigation and upon finding that the interest of the public required the legislation in question and there is no evidence produced herein to the contrary. The testimony shows that the distributors, etc., pay the producers for their milk at the end of fifteen days' shipment and that there is always an amount due and to become due to the producers. The legislative act must have contemplated securing the producers for such amounts. Under the system of paying for the milk after fifteen days' shipments the distributors, etc., are operating on the producers' capital without giving security therefor. The requirement of the bond to protect the producers was a reasonable regulation in compliance with the purpose stated in the act, i.e., to provide means for the protection of the producers in the amounts due and to become due. I take it, the only power delegated to the milk commission was to perform purely administrative functions in providing the means for the protection of the producer. The end sought by the Legislature was that the producers should be protected in the collection of the amounts due and to become due. The Milk Commission was authorized to make rules to that end. The fact that the Act provides that the Milk Commission shall provide such means for the protection of the producers in the collection of the amounts due and to become due to them as may be deemed advisable does not give the Milk Commission the wide power that the counsel for the defendant claims because the regulation in respect thereto would have to be a reasonable one and not capricious, arbitrary or oppressive. I am of the opinion that the rules and regulations of the Milk Commission requiring a bond are an appropriate means to the end in view. Moreover, an adequate and constant supply of pure and wholesome milk is closely related to the bonding. In order for the producer to furnish the supply, it is necessary that he receive payment for his milk. From the many decisions cited above, it is well established that the power delegated to an administrative board to fix the prices of milk is an administrative one. It would appear that the power to fix prices is a greater power than the power to secure the payment thereof. If a Legislature can delegate power to fix the price of milk, it certainly could delegate the power to secure the payment thereof. If fixing the price is an administrative power, without doubt the power to secure the payment thereof would be an administrative one. It is the legislative will to secure the producers payment for their milk. The power delegated to the Milk Commission is that of a fact finding body to ascertain the means necessary to secure the producers such payment. After the commission found from the facts the proper means to carry out the legislative will, they adopted the rules and regulations incorporating therein their findings. The fact that the commission is given discretion in the matter does not change the nature of the power.
Applying the doctrine laid down in the various decisions cited above to the instant case, the rules and regulations of the Louisiana Milk Commission, contested herein, do not in my opinion violate Article II, Sections 1 and 2 of Article III, Section 1 of the Constitution of Louisiana of 1921.
The defendant contends: Second, that said Rules and Regulations of said Louisiana Milk Commission, upon which said indictment is founded, and said Act No. 195 of 1938 are unconstitutional and void, because discriminatory, oppressive and class legislation, depriving defendants of their property without due process of law and denying to defendants the equal protection of the laws, as guaranteed to them under the Constitution of the State of Louisiana of 1921, Article 1, Section 2 and the Constitution of the United States, Amendments 5 and 14 thereof, U.S.C.A.
In support of this contention the defendant argues that requiring pasteurizers and wholesale dealers in milk as a condition precedent to engaging in the milk business to post bond is null and void as being a deprivation of property without due process of law and a denial of equal protection under both the State and the United States Constitutions. It is contended that this is a burdensome requirement demanded only of the wholesale milk dealer and gives a competitive advantage to the retail dealer, the farmer or producer. It is urged that this is class legislation for the sole benefit of the milk producer in order to secure the payment of debts due the producer by the wholesale milk dealer.
In support of these contentions the defendant relies on the case of State v. Chisesi, 187 La. 675, 175 So. 453. In examining that case, I find it was conceded that the statute, disputed therein, had no concern whatever with the public health. It was claimed that the statute was enacted to protect the farmers against fraud on the part of wholesale dealers in farm produce. It appeared from the facts in the case that the defendant, wholesale dealer in poultry and eggs, bought poultry and eggs outside of the State of Louisiana which was brought into the City of New Orleans in trucks and sold to retail dealers. It was held that the statute under which the defendant was prosecuted had two distinct features that contravened the equal protection clause. One of the objectionable features was that it discriminated against wholesale dealers in farm produce as against wholesale dealers in other classes of merchandize which was arbitrary because it had no just or reasonable relation to the public welfare. The other objectionable feature was that the statute gave power to the Commissioner of Agriculture to determine who may or who may not engage in such business, without any fixed rule or standard, it being left to the unrestricted judgment of the Commissioner of Agriculture to say who is worthy or who is unworthy of the privilege of engaging in such business. The court was of the opinion the power invested in the Commissioner of Agriculture was arbitrary.
The case of State v. Chisesi, supra, is not applicable in the first place because in the instant case there is a reasonable relation to the public health and welfare. In the second place, it is not applicable because the bond applies to all persons similarly situated.
It is well settled that due process demands only that the law shall not be unreasonably arbitrary or capricious and that the means selected shall have a real and substantial relation to the objects sought to be obtained. Rohrer v. Milk Control Board, supra; Nebbia v. New York, 291 U.S. 502, 54 S.Ct. 505, 78 L.Ed. 940, 89 A.L.R. 1469; United States v. Carolene Products Co., 304 U.S. 144, 58 S.Ct. 778, 82 L.Ed. 1234.
It is well settled that the milk business involves and affects the public health and welfare and such business being affected with public interest that it is subject to regulation under the police power of the State (see the many cases cited in this opinion involving milk regulations).
Moreover, it is well established that the state may require license and bond to secure the payment of the producers for their products. (See the cases cited above on this point.)
The rule could not be better stated than it was by Mr. Justice Roberts in Milk Control Board v. Eisenberg Farm Products, supra, viz.:
"The purpose of the statute under review obviously is to reach a domestic situation in the interest of the welfare of the producers and consumers of milk in Pennsylvania. Its provisions with respect to license, bond, and regulation of prices to be paid to the producers are appropriate means to the ends in view."
The rule with reference to the right to regulate a business affected with public interest is exhaustively treated in the case of Board of Barber Examiners v. Parker, supra, and it refutes the defendant's contention.
The requirement of a bond in this case is not capricious or arbitrary and makes no discrimination because the bond applies to all similarly situated. If fixing the price of milk does not violate the provisions of the Federal and State Constitutions, certainly a bond to secure the price would not. Under the system that exists the producer does not receive pay for his product until at least fifteen days after it is delivered. In effect the distributors, etc., are operating on the producers' capital. If so, how could it be said that it is unjust or unreasonable to require the distributor, etc., to secure the producer for the amount due him. Certainly if they were operating on borrowed capital from any institution that lends money, they would have to give security and also pay interest. In order for the producer to maintain sanitary conditions in the production and standards of purity, it is necessary that he receive pay for his product or at least some security which would enable him to obtain advances to accomplish this end. The rules and regulations have a real and substantial relation to the object sought to be obtained, i.e., to supply a constant and sufficient supply of pure and wholesome milk.
The defendant contends that Section 12 of Act 195 of 1938 takes away and denies the authority granted the Milk Commission in Section 1 of the Act to make regulations necessary to secure the public a pure, clean, wholesome and sanitary milk supply.
A mere reading of Section 12 refutes this contention. There is nothing to indicate the Legislature intended that the Board of Health should have exclusive jurisdiction over the subject matter. It appears from a reading of the statute that it was the intention of the Legislature not to disturb any of the power given the Board of Health, but to give the Milk Commission concurrent jurisdiction over that subject matter. In the case of Board of Health v. Susslin, supra, this Court, in discussing the relationship between the State Board of Health and a local board of health, stated to the effect that the jurisdiction of the local board was not exclusive but only concurrent except in those cases in which the statute expressly provides that it shall be exclusive. In construing statutes absurd results should be avoided. In construing a statute the object is to ascertain the legislative intent. Gremillion v. Louisiana Public Service Commission, 186 La. 295, 172 So. 163. It is apparent that it was the legislative intent to give the Milk Commission concurrent jurisdiction over the subject matter to the extent of the authority delegated to the Milk Commission in the Act.
The defendant contends: Third, that Act No. 195 of 1938 is unconstitutional, for the reason that the body and subject-matter of the statute is broader than its title, the title granting authority only to make Rules and Regulations regarding "the production, manufacture and sale of milk", whereas the body of the Act, Section 1, authorizes said Milk Commission "to provide such means for the protection of said producers in the collection of the amounts due and to become due them from such distributors * * * as may be deemed advisable."
The title of Act No. 195 of 1938 reads as follows:
"An Act
"To regulate the production, manufacture and sale of milk, milk products and all substitutes for same; creating the Louisiana Milk Commission and granting to same the power and authority to make rules and regulations regarding the production, manufacture and sale of milk, milk products and all substitutes for the same, and providing penalties for the violation of this Act and for the violation of any rules and regulations made hereunder by the Louisiana Milk Commission."
The defendant cites quite a number of authorities to the effect that the title must indicate the object of the statute. Section 16 of Article III of the Constitution of 1921 requires only that the title need indicate the object of the statute.
Webster's New International Dictionary, 2d Ed., defines as follows the word "regulate":
"To govern or direct according to rule, as laws which regulate the succession of seasons; to bring under the control of law or constituted authority; to make regulations for or concerning; as, to regulate the industries of a country or the production of wheat."
"To reduce to order method or uniformity."
"Title of act need not be a complete index to every section of act, and title is sufficient if in general terms it directs attention to purpose of act." Peoples Homestead Savings Ass'n v. Masling, 185 La. 800, 171 So. 36.
For the reasons assigned, I respectfully dissent.