Bailey v. Van Pelt

Citation78 Fla. 353,82 So. 789
PartiesBAILEY v. VAN PELT, Sheriff.
Decision Date12 August 1919
CourtUnited States State Supreme Court of Florida

On Petition for Rehearing, August 18, 1919.

Error to Court of Record, Escambia County; C. M. Jones, Judge.

Suit by H. K. Bailey against J. C. Van Pelt, as Sheriff of Escambia County, for a writ of habeas corpus. Judgment for defendant and plaintiff brings error. Affirmed and rehearing denied.

Brown C.J., and Ellis, J., dissenting in part.

Syllabus by the Court

SYLLABUS

When authority is given by statute to accomplish a stated governmental purpose, there is also given by implication authority to do everything necessary to accomplish the purpose that is not a violation of law or public policy.

The authority given to the counties severally to have local option elections to determine whether there shall be compulsory systematic tick eradication work or compulsory dipping of cattle in the counties may be accomplished by holding elections called by the county commissioners under any system prescribed for holding elections of that nature in which all the 'qualified electors' of the county are authorized to vote.

In order to justify the courts in declaring invalid as a delegation of legislative power a statute conferring particular duties or authority upon administrative officers it must clearly appear beyond a reasonable doubt that the duty or authority so conferred is a power that appertains exclusively to the legislative department, and the conferring of it is not warranted by the provisions of the Constitution.

The Legislature may not delegate the power to enact a law, or to declare what the law shall be, or to exercise an unrestricted discretion in applying a law; but it may enact a law complete in itself, designed to accomplish a general public purpose, and may expressly authorize designated officials within definite valid limitations to provide rules and regulations for the complete operation and enforcement of the law within its expressed general purpose. This principle of the law is peculiarly applicable to regulations under the police power, since the complex and ever-changing conditions that attend and affect such matters make it impracticable for the Legislature to prescribe all necessary rules and regulations.

Authority to make rules and regulations to carry out an expressed legislative purpose, or for the complete operation and enforcement of a law within designated limitations, is not an exclusively legislative power. Such authority is administrative in its nature, and its use by administrative officers is essential to the complete exercise of the powers of all the departments.

The exercise of some authority, discretion or judgment may be incident or necessary to the performance of administrative or ministerial duties; but such authority, discretion or judgment is subject to judicial review; and it is not among the powers of government that the Constitution separates into departments.

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 subject of inquiry and determination outside of the halls of legislation.

The authority to make administrative rules is not a delegation of legislative power, nor are such rules raised from an administrative to a legislative character because the violation thereof is punished as a public offense.

All property rights are held and enjoyed subject to the fair exercise of the state's police power to establish regulations that the reasonably necessary to secure the general welfare of the state.

The wisdom and necessity, as well as the policy, of a statute are authoritatively determined by the Legislature.

The statute and not the administrative regulation defines the offenses and imposes the penalties under chapter 7345, Acts of 1917. Such statute provides a sufficient primary standard for authorized administrative regulations; no arbitrary authority is conferred upon the administrative board; the validity and reasonableness of permissible administrative regulations are subject to judicial review; and the statute does not delegate legislative power in violation of the Constitution. The reasonableness of the administration of the statute is subject to review by the courts.

COUNSEL

Walter Kehoe, of Pensacola, and W. C. Hodges and Fred H. Davis, both of Tallahassee, for plaintiff in error.

Van C. Swearingen, Atty. Gen., D. Stuart Gillis, Asst. Atty. Gen., and Fred T. Myers, of Tallahassee, for defendant in error.

OPINION

WHITFIELD J.

In a criminal prosecution Bailey was charged with having 'knowingly and willfully failed to keep and perform certain rules and regulations made and promulgated by the live stock sanitary board of the state of Florida, to wit, as owner in charge of cattle and premises, and, having been served with official written notice, he, the said H. K. Bailey, failed to thoroughly and properly dip said cattle regularly every 14 days until such time as it is ascertained by regular inspection and dipping that the cattle and premises are free of ticks, against the form of the statute in such case made and provided,' etc.

On writ of habeas corpus in the court of record for Escambia county, the defendant sought a discharge from custody under the charge on the grounds that the statute upon which the information is predicated is inoperative in Escambia county because for stated reasons no legal election has been held in said county upon the result of which the statutory provision in question here could become effective in that county, and that the statutory provision under which the offense is alleged is an unlawful delegation of legislative power to administrative officers. The court remanded the petitioner, and, on writ of error allowed and taken, the constitutionality of the statute and the validity of the election held in Escambia county thereunder are argued here.

The 'agreed state of facts' stipulates that--

Upon a petition signed by one-fourth of the registered voters of Escambia county, asking that an election be held in said county to determine whether or not compulsory systematic tick eradication work, or compulsory cattle dipping, should be put into effect and carried on in the county of Escambia, state of Florida, the county commissioners of the county 'called an election to be had in Escambia county, Fla., to determine whether or not compulsory systematic tick eradication work, or compulsory dipping of cattle, should be provided for and carried on in said county'; that 'it is expressly agreed and admitted by the petitioner that three (3) inspectors and a clerk were designated to hold and conduct said election in each precinct in the county; that each of such persons so designated were qualified electors of Escambia county, state of Florida, and were, on said day, appointed as inspectors and clerks at said election called by the county commissioners, and ordered to be held on April 19, 1918, and that the inspectors and clerks, so designated and appointed, did actually serve and act in the respective capacities for which they were appointed and designated at said election of April 19, 1918; that a canvass of the votes cast was made by the county canvassing board and the county commissioners; that the result of the election was 676 votes for and 482 votes against compulsory systematic tick eradication work, or compulsory dipping of cattle in Escambia county, Fla.;' 'that about the 1st day of September, A. D. 1917, the live stock sanitary board of the state of Florida, under and by authority of chapter 7345, Laws of Florida 1917, did make and promulgate certain rules and regulations concerning the dipping of cattle in Escambia county, state of Florida, one of said rules and regulations being in words and figures as follows:

"When owners, custodians, or persons, in charge of cattle and premises, are served with official verbal or written notice said cattle shall be thoroughly and properly dipped regularly every fourteen (14) days under official supervision until such time as it is ascertained by regular inspection and dipping that the cattle and premises are free from ticks.'
'And another of said rules and regulations being in words and figures as follows:
"All owners, custodians, or persons in charge of cattle, after being served with notice and receiving instructions concerning the methods of systematic tick eradication, shall dip such cattle at the time and place designated by official notice. Owners, custodians, or persons in charge of cattle or premises, failing to regularly and systematically dip such cattle in accordance with methods established in the county, shall be liable to prosecution for each offense.'
'That each of said rules and regulations were duly published and promulgated, and the petitioner herein given personal notice of same.
'That petitioner is and was for a long period of time (more than one year) before the making and promulgation of said rules and regulations above set out, the owner, custodian, and person in charge of a large herd of cattle; about 200 head, all of same being and ranging wholly in Escambia county, state of Florida.
'That on or about the 1st day of April, 1919, the petitioner was personally served with verbal and written notice that his said cattle should be dipped regularly every 14 days under official supervision until such time as it should be ascertained by regular inspection and dipping that the cattle and premises were
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