State v. Gilroy

• Decision Date: 22 August 1950
• Docket Number: 31390.
• Citation: 37 Wn.2d 41,221 P.2d 549
• Court: Washington Supreme Court
• Parties: STATE, v. GILROY.

221 P.2d 549

37 Wn.2d 41

STATE, v. GILROY.

No. 31390.

Supreme Court of Washington.

August 22, 1950

Department 2. Charles O. Carroll, Stuart G. Oles, Robert H. Van Eaton, all of Seattle, for appellant.

Meier &amp Murray, Seattle, for respondent.

HILL, Justice.

The state appeals from an order sustaining a demurrer to both counts of an information and dismissing the same.

By count I it was charged that Bess E. Gilroy wilfully and unlawfully carried on the work of caring for children and adults and placing children for care without having a certificate of approval. This charge is based upon the Laws of 1933, chapter 172 § 5 Rem.Rev.Stat. (Sup.) § 10802-4, which reads as follows: 'Any agency, society, association, institution or person, whether incorporated or unincorporated, and the individual or individuals acting for or in its name, who shall hereafter carry on the work of caring for children, or children and adults, or of placing children for care, without a certificate of approval from the director of business control, or who shall wilfully fail or refuse to report as required by said director, or shall wilfully obstruct or hinder him or his agents in inspection or investigation of the agencies, societies, associations, institutions, or persons under their control or charge, shall be guilty of a misdemeanor.'

By count II it was charged that Bess E. Gilroy had placed an infant 'in a family home for adoption prior to the time an order of relinquishment had become final.' This charge is based upon the Laws of 1935, chapter 150, § 4, as amended by the Laws of 1939, chapter 162, § 2, Rem.Rev.Stat. (Sup.) § 1700-4: 'No licensee of a maternity hospital physician, midwife or nurse or any other person shall undertake directly or indirectly to dispose of infants by placing them in family homes for adoption or otherwise, until after the order of relinquishment shall become final * * *'.

We will consider count II first, as the portion of the appeal dealing with it can be disposed of very briefly.

The question presented is whether, since the enactment of the Washington state adoption act, Laws of 1943, chapter 268, an order of relinquishment is necessary when a child is placed in a family home for adoption. The appellant is content with saying: '* * * Appellant simply relies on Chapter 150, Laws of 1935. * * * The information is substantially in the words of that enactment, and the legislature has never repealed the same. The demurrer therefore should have been overruled unless a repeal by implication is found. See State v. Chamberlain, 132 Wash. 529 [520, 232 P. 337]. The respondent's argument for repeal by implication is well summarized in a comment found in 23 Wash. Law Rev. 354. Appellant simply points out that repeals by implication are not favored in this jurisdiction. State v. Cross, 22 Wash.2d 402, 405 .'

We are not averse to independent research, but we do not feel called upon to make the detailed analysis of the statutes necessary to establish that the trial court erred (if it did) in sustaining the demurrer to count II, without some indication that the appellant is making a serious contention on that point. We do not regard the foregoing quotation from appellant's brief as constituting an argument within the purview of the rule that an assignment of error will not be considered when no argument is made thereon. Bleyhl v. Tea Garden Products Co., 30 Wash.2d 447, 460, 191 P.2d 851; Boyle v. Lewis, 30 Wash.2d 665, 678, 193 P.2d 332.

We turn now to count I. Respondent urges that the demurrer was properly sustained for four reasons: (1) Chapter 172 of the Laws of 1933 violates Art. II, § 19 of the state constitution, in that it embraces more than one subject; (2) chapter 172, Laws of 1933, violates Art. II, § 19 of the constitution, in that the subjects of the act are not expressed in the title; (3) § 3(1) of chapter 172, Laws of 1933, applies only to corporations; and (4), if § 3(1) of chapter 172, Laws of 1933, applies to individuals caring for children, the standards laid down are so indefinite that they leave the entire matter of the issuance of certificates of approval to the sole and uncontrolled direction of the director of social security, and, consequently, it constitutes an unlawful delegation of legislative power.

The arguments of the respondent in support of all four reasons are cogent, and the criticisms against the title of chapter 172 of the Laws of 1933 and the wording of § 3(1) thereof should be obviated in the drafting of any new legislation on the subject matter involved. But we find it unnecessary to pass upon the first three of the reasons assigned, because we are convinced--as was the trial court--that there can be no escape from the conclusion that chapter 172 of the Laws of 1933 unlawfully delegated legislative power to the director of business control, which power has by subsequent amendments been transferred to the director of social security.

By that act the certificate of approval, the absence of which is the basis of the charge in count I, is to be

'* * * issued by said director upon reasonable and satisfactory assurance upon the following points:

'(a) The good character and intentions of the applicant;

'(b) The present and prospective need of the service intended by the proposed organization, with no unnecessary duplication of approved existing service;

'(c) Provision for employment of capable, trained or experienced workers;

'(d) Sufficient financial backing to insure effective work;

'(e) The probability of permanence in the proposed organization or institution;

'(f) That the methods used and the disposition made of the children will be in their best interests and that of society;

'(g) Articles of incorporation and related by-laws;

'(h) That in the judgment of the director the establishment of such an organization is necessary and desirable for the public welfare.' Laws of 1933, chapter 172, § 3(1).

The Washington constitution, Art. II, § 1, vests the legislative power in the Senate and House of Representatives. What Chief Justice Hughes said in Panama Refining Co. v. Ryan, 293 U.S. 388, 421, 55 S.Ct. 241, 248, 79 L.Ed. 446, concerning the national legislature, is equally applicable to the state legislature. We quote: '* * * The Congress manifestly is not permitted to abdicate or to transfer to others, the essential legislative functions with which it is thus vested. Undoubtedly legislation must often be adapted to complex conditions involving a host of details with which the national legislature cannot deal directly. The Constitution has never been regarded as denying to the Congress the necessary resources of flexibility and practicality, which will enable it to perform its function in laying down policies and establishing standards, while leaving to selected instrumentalities the making of subordinate rules within prescribed limits and the determination of facts to which the policy as declared by the legislature is to apply. Without capacity to give authorizations of that sort we should have the anomaly of a legislative power which in many circumstances calling for its exertion would be but a futility. But the constant recognition of the necessity and validity of such provisions, and the wide range of administrative authority which has been developed by means of them, cannot be allowed to obscure the limitations of the authority to delegate, if our constitutional system is to be maintained.'

Mr. Justice Cardozo, who dissented, conceded that '* * * to uphold the delegation there is need to discover in the terms of the act a standard reasonably clear whereby discretion must be governed.'

In the Panama Refining Co. case, supra, and in Schechter Poultry Corp v. United States, 295 U.S. 495, 55 S.Ct. 837, 79 L.Ed. 1570, 97 A.L.R. 947, are found a detailed discussion and an explanation of the distinction between valid and invalid regulatory legislation. The principle is therein laid down that a law is invalid when the authority delegated leaves the rugulatory or enforcement agency with unguided and unrestricted discretion in the assigned field. Stated affirmatively, the method of regulation by delegation of authority is subject to the limitation that the law providing for the delegation must also prescribe an accompanying rule of action or lay down a guide or standard whereby the exercise of discretion may be measured. State ex rel. Washington Toll Bridge Authority v. Yelle, 195 Wash. 636, 643, 82 P.2d 120; Ferretti v....