Lincoln Dairy Co. v. Finigan
| Decision Date | 15 July 1960 |
| Docket Number | No. 34794,34794 |
| Citation | 104 N.W.2d 227,170 Neb. 777 |
| Parties | LINCOLN DAIRY COMPANY, a Corporation, et al., Appellants, v. Pearle F. FINIGAN, Director of the Department of Agriculture & Inspection of the State of Nebraska, et al., Appellees. |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
1. The Legislature may not lawfully delegate legislative powers to an administrative or executive authority.
2. The exercise of a legislatively-delegated authority to make rules and regulations to carry out an expressed legislative purpose, or for the complete operation and enforcement of a law with designated limitations and standards, is not an exercise of legislative power. It is administrative in its nature and its use by administrative agencies is usually essential to the complete and wise exercise of the power in the accomplishment of the purpose which the Legislature intended.
3. The limitations of the power granted and the standards by which the granted powers are to be administered must, however, be clearly and definitely stated. They may not rest on indefinite, obscure, or vague generalities, or upon extrinsic evidence not readily available.
4. In this state all public offenses are statutory, and no person can be punished for any act or omission which is not made penal by the plain import of a properly enacted statute.
5. The Legislature cannot delegate its power to create criminal offenses and prescribe penalties to an administrative or executive authority. Such powers are exclusively legislative and may not be delegated to the executive branch of government under the doctrine of the division of powers contained in the state Constitution.
6. The grant of power by the Legislature to the Director of the Department of Agriculture and Inspection to promulgate rules and regulations in general compliance with a model code, in accordance with his judgment or whim, the violation of which are made crimes subject to punishment, is an unconstitutional delegation of legislative power to an administrative authority.
7. The public has a right to know the acts which constitute crimes in this state and the punishments provided therefor. To hold otherwise would in effect deprive the people of personal and property rights for which constitutions were devised to protect.
8. A citizen has the constitutional right to engage in any occupation not detrimental to the public health, safety, and welfare. Measures adopted by the Legislature under the police power to protect the public health and secure the public safety and welfare must have some reasonable relation to those proposed ends.
9. Where it appears that a statute, under the guise of police regulation, does not tend to preserve the public health, safety, and welfare, but tends more to stifle legitimate business by creating a monopoly or trade barrier, it is unconstitutional as an unwarranted interference with or an encroachment upon the property rights of the individual.
10. The Legislature has the power to prohibit the sale of food products that are dangerous or harmful to public health but it cannot prohibit the sale of a wholesome and nutritious food product that is not a fraud upon the public.
11. Sections 81-263.01 to 81-263.10, R.R.S.1943, and section 81-263.06, R.S.Supp., 1959, are unconstitutional and void because they are violative of Article I, section 3, Article II, section 1, and Article III, section 1, Constitution of Nebraska, (1) in that they contain an unlawful delegation of legislative power to an administrative officer, (2) in that the delegation of power is unlawful as it is described in indefinite, obscure, and vague generalities based on extrinsic evidence not readily available, and (3) in that they prohibit the sale of food products which are wholesome, nutritious, and harmless, and not a fraud upon the public.
Ginsburg, Rosenberg & Ginsburg, Norman Krivosha, Lincoln, W. O. Baldwin, Hebron, for appellants.
Clarence S. Beck, Atty. Gen., John E. Wenstrand, Asst. Atty. Gen., for appellees.
Heard before CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.
This is an action for a declaratory judgment to test the constitutionality of sections 81-263.01 to 81-263.10, R.R.S.1943, and section 81-263.06, R.S.Supp., 1959, which will hereafter be referred to as the Grade A Milk Act. The defendants demurred to plaintiffs' petition which the trial court sustained. Plaintiffs refused to plead further and stood on their petition. The trial court thereupon dismissed plaintiffs' petition. Plaintiffs have appealed.
The plaintiffs are engaged in the business of owning and operating milk processing plants in Lincoln, Hebron, and Deshler, Nebraska. The defendant Finigan is the Director of the Department of Agriculture and Inspection of the State of Nebraska, and charged with the duty of prescribing regulations for the production, processing, and sale of Grade A milk and milk products, and of enforcing the statutes and regulations adopted pursuant thereto. The defendant Flagg is the Chief of the Bureau of Dairies, Foods and Drugs in such department and is in direct charge of the supervising and enforcing of such statutes and regulations. The defendant Grade A Milk Advisory Board of the State of Nebraska was created under section 81-263.03, R.R.S.1943, and is advisory to the Director of the Department of Agriculture and Inspection in the promulgation of regulations and the enforcement thereof.
It is the contention of the plaintiffs that section 81-263.02, R.R.S.1943, of the act contains an unlawful delegation of legislative power to the Director of the Department of Agriculture and Inspection in that it violates Article II, section 1, and Article III, section 1, of the Constitution of Nebraska. Section 81-263.02, R.R.S.1943, provides:
Section 81-263.10, R.R.S.1943, provides in part: 'Any person or persons violating the provisions of sections 81-263.01 to 81-263.10 or the rules and regulations issued thereunder, * * * shall be guilty of a misdemeanor and shall, upon conviction thereof, be fined not less than twenty-five dollars nor more than one hundred dollars for the first violation, and not less than one hundred dollars nor more than five hundred dollars for a subsequent violation.'
It is fundamental that the Legislature may not delegate legislative power to an administrative or executive authority. Smithberger v. Banning, 129 Neb. 651, 262 N.W. 492, 100 A.L.R. 686. The Legislature does have power to authorize an administrative or executive department 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. Such authority is administrative in its nature and its use by administrative officers is essential to the complete exercise of the powers of all departments. State ex rel. Martin v. Howard, 96 Neb. 278, 147 N.W. 689. It is fundamental, also, that in the legislative grant of power to an administrative agency such power must be limited to the expressed legislative purpose and administered in accordance with standards prescribed in the legislative act. The rule was stated by this court in Board of Regents of University of Nebraska v. County of Lancaster, 154 Neb. 398, 48 N.W.2d 221, 224, in the following language:
The limitations of the power granted and the standards by which the granted powers are to be administered must, however, be clearly and definitely stated in the authorizing act. The plaintiffs contend that these requirements have not been met in the present act and that they therefore violate constitutional prohibitions.
The act authorizes the director to adopt, by regulation, minimum standards for the sanitary quality, production, processing, distribution, and sale of Grade A milk and Grade A milk products, and for the labeling of the same. No limitation is placed upon the power of the director or the standards by which such granted power is to be exercised except that they are to comply generally with the Milk Ordinance and Code--1953 recommendations of the Public Health Service of the Department of Health, Education and Welfare of the United States. It will be observed that the ordinance and code referred to are recommendations only. They constitute a suggested model to be used in making regulations for the production and sale of Grade A milk and other grades as well. They have not been promulgated or published as regulations by any department of the United States government. They are not required to be filed in any public office or registry and their content can be established only by extrinsic evidence since this court cannot take judicial notice of their existence or what they may contain.
It will be noted also that section 81-263.10, R.R.S.1943, provides criminal penalties for violation of the Grade A Milk...
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