State v. Bunner , 126 W. Va. 280 ( 1943 )

I concur in the result but do not agree with all the reasons advanced in support thereof. The rule with reference to delegation of legislative power and the creation of standards of administration by statute has been relaxed in relation to public health.

The statute which authorized the public health council to adopt regulations with reference to milk and milk products provides insufficient standards for the exercise of the power delegated. There is no substantive provision of law to be administered and carried into effect. Code, 16-7-5. The object is to provide clean and safe milk and fresh milk products and the only procedure by which that object is to be attained is by regulations to be adopted by the council. The discretion thus vested is too wide and the language of the statute is too general to provide any standards for administrative action. The following is a clear statement of the rule:

"Although when circumscribed within definite valid limitations and restrictions powers conferred upon designated public officials to provide rules and regulations for the complete operation and enforcement of a law within its expressed general scope and purpose will be sustained because not unlawful; yet if it attempts to delegate the power to enact a law or modify it, or to exercise an unrestricted discretion in the application of the law, it will not be sustained, because these are non-delegable legislative functions." Sutherland v. Miller, 79 W. Va. 796, 803, 91 S.E. 993.

See also Panama Refining Co. v. Ryan, 293 U.S. 388,55 S. Ct. 241; A. L. A. Schechter Poultry Corp. v. United States,295 U.S. 495, 55 S. Ct. 837. The difficulty of providing standards for the adoption of regulations by the public health council is not apparent. When we examine and consider Code, 19-11-3, as amended, definitions and standards are therein provided for regulation and administration of the dairy industry.

A stricter rule is necessary when the power to define acts constituting crime is conferred on administrative boards and officers than when the power delegated deals with civil rights. The legislative standard set up for administrative action in defining and prohibiting acts as criminal should only permit a limited discretion. I do not believe the decisions of this Court in the cases of Rinehart v. Flying Service, 122 W. Va. 392,9 S.E.2d 521, and Chapman v. Housing Authority, 121 W. Va. 319,3 S.E.2d 502, constitute a sufficient precedent in the instant case. In this case we are dealing with an indictment charging a criminal act, made so by regulation, rather than enforcement or determination of civil rights.

Furthermore, I am convinced that the provisions for the granting or withholding of a permit should be incorporated in the statute rather than in the regulations of the public health council.

For the reasons herein stated I do not concur in that part of the opinion which relates to the first, second and third points of the syllabus.