Dean v. Kuchel

• Citation: 230 P.2d 811,37 Cal.2d 97
• Court: California Supreme Court
• Decision Date: 04 May 1951
• Parties: DEAN v. KUCHEL. Sac. 6186.

Page 811

230 P.2d 811

37 Cal.2d 97

DEAN v. KUCHEL.

Sac. 6186.

Supreme Court of California, in Bank.

May 4, 1951.

Frank K. Richardson, Ralph N. Kleps, Legislative Counsel, Sacramento, Chas. W. Johnson, Chief Deputy Legislative Counsel, San Francisco, and Joseph W. Paulucci, Deputy Legislative Counsel, Sacramento, for petitioners.

Edwin J. Regan, Weaverville, as amicus curiae on behalf of petitioners.

Edmund G. Brown, Attorney General, Bert W. Levit, Chief Deputy Attorney General, Ralph W. Scott and W. R. Augustine, Deputy Attorneys General, for respondent.

Robert L. Mann, San Francisco, as amicus curiae on behalf of respondent.

CARTER, Justice.

In 1947, the Legislature passed the 'Wildlife Conservation Act of 1947' Stats, 1947, ch. 1325, Am.Stats.1949, ch. 1440. 3 Deering's Gen.Laws, Act 9250. It declares that the 'preservation, protection and restoration' of wild life in the state and maintaining 'high productivity' thereof is the public policy of the state. To achieve those aims 'a single and coordinated program for the acquisition of lands and facilities suitable for recreational purposes and adaptable for conservation, propagation and utilization of the fish and game resources of the State is hereby established.' Id., § 1. In the Department of Natural Resources, Public Resources Code, § 501 there is created a Wildlife Conservation Board, consisting of the President of the Fish & Game Commission, an employee or executive officer of the commission, chosen by the commission, and the Director of Finance. Three members each of the Senate and Assembly shall meet with the board and participate in its activities to the extent that such participation is not incompatible with their membership in the Legislature. Id., § 2. The board shall study and determine the areas and land in the state most suitable for the production and preservation of wild life and for recreation, and, as a result of such study, shall determine what areas shall be a acquired by the state 'to effectuate a coordinated and balanced program resulting in the maximum revival of wild life in the State and in the maximum recreational advantages to the people of the State', Id., § 3 and may authorize the acquisition of such areas by the Fish & Game Commission or the State Public Works Board. The commission, when authorized by the board shall construct such facilities as are suitable. Completed areas are to be managed by the commission. Id., § 3. The money in the Wild Life Recreation Fund is available for expenditure under the act. Also in 1947, § 19627 of the Business & Professions Code was amended to create a Wildlife Restoration Fund and with the direction that $3,000,000 per year be paid into it from the license fees from horse race meetings. Stats.1947, ch. 1327, § 1. The Conservation Act repealed Budget Item 245 for 1947, which amounted to $1,400,000 for use by the commission in construction, improvement and repairs, and equipment. Id., § 5.

Pursuant to the act the board employed Seth Gordon to make a survey of conditions in California. Respondent, State Controller, has refused to draw warrants for the payment of the salary of Gordon and other employees on the ground that the act is unconstitutional. Petitioner seeks by this proceeding in mandamus to compel him to draw such warrants.

The constitutional provision invoked states: 'The Legislature may provide for the division of the State into fish and game districts and may enact such laws for the protection of fish and game in such districts or parts thereof as it may deem appropriate.

'There shall by a Fish and Game Commission of five members appointed by the Governor, subject to confirmation by the Senate, with a term of office of six years * * *. The Legislature may delegate to the commission such powers relating to the protection, propagation and preservation of fish and game as the Legislature sees fit. Any member of the commission may be removed by concurrent resolution of the Legislature passed by the vote of a majority of the members elected to each of the two houses thereof.' Cal.Const., art. IV, § 25 1/2, as amended in 1948. That section was originally added to the Constitution in 1902 and then included only the first paragraph. By amendment in 1940, the second paragraph was added. The 1948 amendment made no change here pertinent.

It is asserted that by reason of the above constitutional provision the Legislature has no authority to delegate to anyone except the commission any powers relating to the protection, propagation and preservation of fish and game; that under the rule of construction, expressio unius est exclusio alterius (the mention of one thing implies the exclusion of another thing), that result must be reached; and that, therefore, the Conservation Act is invalid because it delegates such powers to the conservation board. The applicable legal principles compel a contrary conclusion.

The fundamental rule has been stated by this court: 'There is no express prohibition against the allowance of or reimbursement for other expenses, but the respondent contends that under the doctrine of expressio unius exclusio alterius, since the Constitution specified two items which may be allowed, any other allowances are invalid. This argument overlooks the fact that our Constitution is not a grant of power but rather a limitation or restriction upon the powers of the Legislature (Citations) and 'that we do not look to the Constitution to determine whether the Legislature is authorized to do an act, but only to see if it is prohibited.' Fitts v. Superior Court, supra. If there is any doubt as to the Legislature's power to act in any given case, the doubt should be resolved in favor of the Legislature's action. Such restrictions and limitations are to be construed strictly, and are not to be extended to include matters not covered by the language used.' (Emphasis added.) Collins v. Riley, 24 Cal.2d 912, 915, 152 P.2d 169, 171. See, also City of Los Angeles v. Post War etc. Bod., 26 Cal.2d 101, 156 P.2d 746; Delaney v. Lowery, 25 Cal.2d 561, 154 P.2d 674; 5 Cal.Jur., 666-670. Specifically, the express enumeration of legislative powers is not an exclusion of others not named unless accompanied by negative terms. Ex parte McCarthy, 29 Cal. 395; Macmillan Co. v. Clarke, 184 Cal. 491, 194 P. 1030, 17 A.L.R. 288; Slavich v. Walsh, 82 Cal.App.2d 228, 186 P.2d 35.

There are numerous pertinent illustrations of the application of that principle. The provision that the Legislature shall protect from forced sale a homestead for heads of families does not limit its power to provide homesteads for others than heads of families. Hohn v. Pauly, 11 Cal.App. 724, 106 P. 266. Provisions authorizing removal of officers by trial for misdemeanor in office and the recall of specified officers, the first including and the second not including those of an irrigation district do not prevent the Legislature from authorizing the recall of the latter. Wigley v. South San Joaquin Irr. Dist., 31 Cal.App. 162, 159 P. 985. A grant of power to county boards of education (Cal.Const., art. IX, § 7) to 'control' examination of teachers and 'granting of teachers' certificates,' did not oust the Legislature of power to establish the requisites for a teacher's certificate. Mitchell v. Winnek, 117 Cal. 520, 49 P. 579. The court there stated, 117 Cal. at page 525, 49 P. at page 581: 'If, therefore, it be asserted, as it is here, in effect, that the power of the legislature to enact section 1503 of the Political Code does not exist, the restriction or limitation of that power must not only be found in the constitution, but the prohibition of its exercise must be clear. It must appear either from express words or by necessary implication. It is not asserted that there is any express prohibition, nor does the use of the word 'control' necessarily imply that the power of legislation upon the subject in question is prohibited to the legislature. Apparently inconsistent provisions must be harmonized, and each given some effect, if that be possible. To give the word 'control' the effect given it by the court below, some qualifying word, such as 'exclusive,' cabsolute,' or 'unlimited,' must be implied, since without such implication that word does not necessarily imply that the legislature had no power to declare that holders of the specified diplomas should be entitled to certificates of the grammar grade.'

Here there are factors which not only create a doubt that the Legislature was to be restricted to acting through the Fish and Game Commission in legislating in the fish and game field, but there are indications that it was not to be so limited. The wording of § 25 1/2 points in that direction. It begins with the declaration that the Legislature may enact such laws for the protection of fish and game 'as it may deem appropriate.' The commission is created and to it the Legislature may delegate such powers relating to fish and game as it sees fit. The word 'may' is at least reasonably susceptible of a permissive meaning rather than mandatory or prohibitory, and it has been held that when such word is used it will not create a restriction on the legislative power even though the Constitution, Cal.Const., art. I, § 22 also provides: 'The provisions of this Constitution are mandatory and prohibitory, unless by express words they are declared to be otherwise.' See Fresno National Bank v. Superior Court, 83 Cal. 491, 24 P. 157; People ex rel. Mattison v. Nye, 9 Cal.App. 148, 98 P. 241; Mundell v. Lyons, 182 Cal. 289, 187 P. 950; but see In re Cencinino, 31 Cal.App. 238, 160 P. 167. That it may delegate such powers as it may see fit indicates that it may fail to delegate any pwoers. It is true that the provision may impliedly mean that it may or may not, at its discretion, delegate such powers, but if it does, they must be conferred on the commission. But this is not necessarily the meaning or a necessarily implied...