State v. Curran , 220 Ala. 4 ( 1929 )

This Court seems to be firmly committed to the constitutional right of the Legislature to provide for the creation of administrative boards and commissions with authority to enact regulations and change them from time to time, and that a violation of them will be a criminal offense. Ferguson v. Starkey, 192 Ala. 471, 68 So. 348; State v. McCarty, 5 Ala. App. 212, 59 So. 543; Ferguson v. Jackson County, 187 Ala. 645, 65 So. 1028; Bond v. State Board of Medical Examiners, 209 Ala. 9, 95 So. 295; Parke v. Bradley,204 Ala. 455, 86 So. 28; Hill v. Cameron, 194 Ala. 376,69 So. 636; Horn v. State, 17 Ala. App. 419, 84 So. 883; Reims v. State, 17 Ala. App. 128, 82 So. 576; Ala. Public Service Comm. v. Mobile Gas Co., 213 Ala. 50, 104 So. 538, 41 A.L.R. 872; McElderry v. Abercrombie, 213 Ala. 289, 104 So. 671. The court will not ordinarily take judicial notice of such regulations. Ferguson v. Starkey, supra.

Section 254 et seq. of the Agricultural Code of Alabama fixes the standards of weight for loaves of bread, but, recognizing that due to evaporation after the bread is baked it will lose weight, has provided that the state board of agriculture shall adopt and promulgate all reasonable and necessary rules and regulations and reasonable variations or tolerances as to the prescribed weight. A violation of such rules and regulations is made a misdemeanor and is punishable by fine.

Authority for the majority opinion is rested on the case of Burns Baking Co. v. Bryan, 264 U.S. 504, 44 S.Ct. 412,68 L.Ed. 813, 32 A.L.R. 661. I think the difference to be noted is that in said case the opinion considering a Nebraska statute holds that it is in violation of the due process clause of the Constitution because the provision in the act for tolerance or variations in weight was determined on proof to be unreasonable, and therefore confiscatory in nature. I do not think that such reasoning would strike the Nebraska act unless the confiscatory regulations had been in the act itself.

With us it is not in the act, but there is a regulation prescribed by a board as authorized by law. The act of the Legislature should not be considered as to its constitutionality, as affected by the regulations of the board. The act is void and unconstitutional when enacted, if at all, and is not rendered so by some improper regulation of the board. It seems that such regulation is substantially the same as that embraced in the Nebraska act, and upon the same nature of proof if it were in the Alabama act would doubtless annul it. Whether it is in fact unreasonable would depend upon the proof as to conditions in Alabama affecting the question. The board was only authorized to adopt reasonable regulations, and the fact that it did not comply with this requirement, but may have enacted an unreasonable and unauthorized regulation, can only affect such regulation. I think in event such regulation is found unreasonable the board should adopt such other regulations as will withstand attack based upon the due process clause of the Constitution, without in any way impairing the legislative act which gives it such authority.

BOULDIN, J., concurs.