State v. Bunner

• Decision Date: 23 November 1943
• Docket Number: 9514.
• Citation: 27 S.E.2d 823,126 W.Va. 280
• Parties: STATE v. BUNNER et al.
• Court: West Virginia Supreme Court

27 S.E.2d 823

126 W.Va. 280

STATE v. BUNNER et al.

No. 9514.

Supreme Court of Appeals of West Virginia.

November 23, 1943

Concurring Opinion Dec. 3, 1943.

Syllabus by the Court.

Ira J. Partlow, Acting Atty. Gen., Kenneth E Hines, Asst. Atty. Gen., and Harrison Conaway, Pros. Atty of Fairmont, for plaintiff in error.

Ward Lanham, of Fairmont, for defendants in error.

ROSE Judge.

In the Criminal Court of Marion County an indictment was returned against Arlie A. Bunner, Gaynor Bunner and Randolph R Bunner, partners doing business as "Bunner Brothers", a demurrer to which was sustained by that court. The circuit court of that county refused a writ of error on petition of the State, and, upon application of the State to this court this writ of error was awarded to the order so made by the circuit court.

The indictment charges the defendants with having sold one pint of milk from their store in the City of Fairmont, Marion County, without having a permit from the health officer of that county, as required by certain regulations alleged to have been duly adopted and promulgated by the public health council of the State. The demurrer embodies fifteen grounds which, for our present purpose, may be adequately considered under three heads: First, that the statute of this State, under which these regulations were adopted, violates both the Constitution of West Virginia and that of the United States by attempting to vest in the State Health Council an unwarranted power to legislate by prescribing rules and regulations in the domain of public health; second, that the regulations in question are themselves unconstitutional in that they at tempt to require from a milk dealer a per mit to engage in that business; and that they give the county health officer the arbitrary right to award or refuse such permit and prescribe no method by which the same may be obtained, and in that they do not state the day on which they take effect; and, third, that the indictment itself is further insufficient in law in that it fails to show affirmatively that the regulations, a provision of which is alleged to have been violated, were legally in effect at the time of their alleged violation.

The power of a legislative body to vest in an administrative body or officer the legal capacity to establish and enforce regulations and rules governing businesses, which will then have the legal effect of law, although at one time challenged, is now universally sustained, but only within certain well-recognized limits. We have held that, in creating administrative machinery for the regulation of a business, the Legislature itself must set up standards and definite limitations under which the administrative body may act, and must leave to it only the power to regulate and prescribe details, which are to be measured by the "standards" so established by the legislative act. West Central Producers Co-Operative Association v. Commissioner of Agriculture, W.Va., 20 S.E.2d 797; Rinehart v. Woodford Flying Service, 122 W.Va. 392, 9 S.E.2d 521; Chapman v. Huntington Housing Authority, 121 W.Va. 319, 3 S.E.2d 502; Bates v. State Bridge Commission, 109 W.Va. 186, 153 S.E. 305; State ex rel. Public Service Commission v. Baltimore & Ohio R. Co., 76 W.Va. 399, 85 S.E. 714; Blue v. Smith, 69 W.Va. 761, 72 S.E. 1038. This general rule, however, is in some degree flexible, requiring less definite standards in cases where the establi shment thereof is not practicable owing to the character of the business involved. West Central Producers Co-Operative Association v. Commissioner of Agriculture, supra. But, of more importance in the present case, is another uniformly recognized exception to the general rule, by which the Legislature is much less restricted when its delegation of legislative authority is to an administrative body created for the care of public health. Or dinarily the power to delegate legislative authority must be found in the Constitution, but, where the subject matter of the admin istrative authority is public health, the power is uniformly held not to originate in the Constitution, but from "the police power". This vast, undefinable reservoir of power inheres in the legislative body of every sovereign state wholly independent of the Constitution. "The police power is an attribute of sovereignty and a necessary attribute of every civilized government. It is a general term used to express the par ticular right of a government which is inherent in every sovereignty. Consequently, it is inherent in the states of the American Union, possessed by every one of them as sovereign, and is not a grant derived from or under any written Constitution." 11 Am.Jur. Constitutional Law, Sec. 245. Courts generally, therefore, take the position that regulations and rules duly promulgated by a legally constituted board of health will be construed as valid wherever possible, if reasonably calculated to achieve the result intended by the Legislature. La Porta v. Board of Health, 71 N.J.L. 88, 58 A. 115; Gregory v. City of New York, 40 N.Y. 273; People ex rel. Barmore v. Robertson, 302 Ill. 422, 134 N.E. 815, 22 A.L.R. 835; Board of Trustees of Highland Park, etc. v. McMurtry, 169 Ky. 457, 184 S.W. 390; Schulte v. Fitch, 162 Minn. 184, 202 N.W. 719; Crayton v. Larabee, 220 N.Y. 493, 116 N.E. 355, L.R.A.1918E, 432. Hence we are not rigidly controlled by the pronouncements of this court in regard to regulations of administrative bodies which relate purely to business matters.

The general statute under which the public health council of this State acts is found in Chapter 16 of the Code. Six members of this Council are required to be graduates of reputable medical colleges and to have at least five years' experience in the practice of medicine, the other being a graduate of a reputable dental college. By this statute the council is required, inter alia, "to promulgate rules and regulations", and is authorized "by the affirmative vote of a majority of its members, to establish and from time to time amend regulations under the public health laws, the enforcement of which devolves upon the state commissioner of health." Code, 16-1-3, as amended by Laws 1933, c. 2. The same section further provides that "Any violation of the regulations so promulgated, when said regulations are reasonable and not inconsistent with law, shall be a misdemeanor, ***." There is, thus, in the statute a "standard" which requires regulations by the health council to be reasonable and consistent with law, in order to be enforceable in a criminal proceeding. This is not a total absence of "standards". Further, by Section 5, Article 7 of this chapter, a more direct and significant provision, for the purpose of this case, is found in these words: "The public health council shall adopt regulations to provide clean and safe milk and fresh milk products, and, when promulgated, these regulations shall be the minimum requirements to be enforced by local health authorities throughout the State." Code, 1931, § 16-7-5. Here we have additional and very definite and practicable standards and limitations with respect to the rules and regulations, or "legislation", which the council is empowered to enact. This section does not purport to give the health council any authority over the business of vending milk as a business. It has no authority to fix prices, or to determine the richness of milk, or its fat, or other solid, content. The sole authority conferred relates to the cleanliness and safety of the milk--qualities which bear directly upon its effect on public health. And the standard required by the statute is that the milk shall be clean and safe. There can be no difficulty in understanding what these words mean, nor in applying them as a test for the marketability of milk. Milk, from its origin and from the too common primitive method of its handling, is peculiarly exposed to filth and readily susceptible to dangerous contamination and, therefore, comes clearly within the scope of health regulations. It would, of course, be utterly impossible for the Legislature to prescribe in detail the infinite variety of rules and practices necessary to be barred, or required, in order to guard against filthy or contaminated milk. All health statutes are of necessity general in terms. The Legislature cannot possibly prescribe medicine, or surgical treatment, nor even full and complete sanitary requirements. Medicine in general and sanitary regulations in particular are a growing and ever-changing science to be administered to the public by experts, as physicians prescribe for a private patient. No "patent medicine" in the form of fixed legislative rules would be either intelligent or efficient; hence, the great liberality which courts have universally allowed to health boards or councils in this field. We are accordingly, clearly of opinion that the standard of cleanliness and safety established by the statute and the limitation, also contained therein, to the effect that the regulations adopted by the council shall be reasonable and not inconsistent with law, constitute a sufficient precaution by the Legislature against undue, or unconstitutional "legislation" by this administrative body.

The indictment embodies in full the regulations of the council under a section of which this indictment was found. These consist of fifteen single-spaced typewritten pages. We are not here concerned with any of these regulations except that which the defendants are charged with having violated, namely, the requirement that, before selling milk, the dealer must have a permit from the health officer. Section 3 of these regulations reads as follows:

"Permits.--It shall be unlawful for any person to bring into or receive into the State of West

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