State v. Maitrejean

• Decision Date: 30 October 1939
• Docket Number: 35291,35292.
• Citation: 193 La. 824,192 So. 361
• Court: Louisiana Supreme Court
• Parties: STATE v. MAITREJEAN. SAME v. HARRIS et al.

192 So. 361

193 La. 824

STATE v. MAITREJEAN.

SAME v. HARRIS et al.

Nos. 35291, 35292.

Supreme Court of Louisiana.

October 30, 1939

Rehearing Denied Nov. 27, 1939.

Appeal from Twenty-First Judicial District Court, Parish of Tangipahoa; Robert S. Ellis, Jr., and Hypolite Mixon, Judges.

Herbert W. Maitrejean, Henry J. D. Harris, and C. M. Rhodes were convicted of violating a regulation of the Louisiana Milk Commission, and they appeal.

Reversed conviction set aside, and defendants ordered released.

A regulation of the Louisiana Milk Commission making it unlawful to engage as a distributor, pasteurizer, or manufacturer of milk or milk products or to buy milk from a producer without first having posted a bond with the commission is unconstitutional because adopted in exercise of a non-delegable legislative function. LSA-R.S. 40:881; Const.1921, art. 2, § 1; art. 3, § 1.

St. Clair Adams & Son, of New Orleans, for defendants Harris and rhodes.

George S. Graham, of New Orleans, for defendant Maitrejean.

David M. Ellison, Atty. Gen., James O'Connor, Asst. Atty. Gen Bolivar E. Kemp, Jr., Dist. Atty., of Amite, Joseph M. Blache, Jr., Asst. Dist. Atty., of Hammond and Shelby S. Reid, of Amite, for the State.

ODOM Justice.

The Legislature of 1938, by Act 195, page 476, created the Louisiana Milk Commission. It is provided in Section 1 of the Act that the regulation of the production, manufacture, and sale of milk and milk products ‘ shall be, and the same is, hereby placed’ under the supervision of the Commission.

Under the same section of the Act, the Commission was given power and authority to make, publish, and enforce all regulations necessary to secure to the public a pure, clean, wholesome and sanitary supply of milk, and such rules and regulations as might be thought necessary to promote and encourage the production of milk and the manufacture of milk products throughout the state. And the Commission was authorized to adopt rules and regulations ‘ for the protection of said producers in the collection of the amounts due and to become due them from * * * distributors, wholesalers or pasteurizers of milk, or milk products as may be deemed advisable.’

By Section 3 of the Act, the Commission was authorized and empowered to make all necessary rules and regulations for carrying out the purposes of the Act, and to promulgate the same from time to time. This section of the Act specifically provides that: ‘ any violation of such regulations shall be a misdemeanor and shall be punishable by fine or imprisonment or both as provided by Section 8 hereof.’

Section 8 of the Act, in so far as it need be quoted, reads as follows: ‘ That any person who shall violate any of the provisions of this Act, or any of the rules and regulations adopted by the Louisiana Milk Commission under the provisions of this Act, shall be punished upon conviction, by a fine of no less than Ten Dollars, nor more than Two Hundred Dollars, or by imprisonment in the parish jail for no less than ten days nor more than six months, or by both, such fine and imprisonment at the discretion of the Court.’

Following the adoption of this Act, the Milk Commission made and promulgated the following regulation: ‘ It shall be unlawful for any person, firm or corporation engaged as a distributor, pasteurizer or manufacturer, of milk or milk products, as herein defined, to engage in such business and or to buy milk from any producer, without having first posted a bond, with the commission in a sufficient amount to cover at least fifteen (15) days' shipment of milk, to be computed by the commission, on the average of the three months immediately preceding the date of such bond; said bond to be executed by a surety company authorized to do business in Louisiana, as surety thereon.’

These defendants were indicted for violating this rule, the indictment setting out that they, being engaged as distributors, pasteurizers, and manufacturers of milk and milk products, ‘ did then and there wilfully and unlawfully buy milk from a producer, without having first posted a bond with the Louisiana Milk Commission in a sufficient amount to cover at least fifteen days' shipment of milk computed by the commission on an average of the three months immediately preceding the date of the demand by the Louisiana Milk Commission for the said bond, in violation of the Rules and Regulations of the Louisiana Milk Commission adopted in accordance with the provisions of Sections 1 and 3 of Act 195 of 1938.’

It is thus clear that, although the Act in Section 6 specifically laid down certain rules and regulations relating to the production, sale, and handling of milk and milk products, the defendants were not indicted for violating these legislative provisions, but were indicted for violating ‘ the Rules and Regulations of the Louisiana Milk Commission’ .

Defendants filed motions to quash the indictments on the ground that the rule or regulation of the Milk Commission making it unlawful for distributors or pasteurizers of milk to engage in such business or to buy milk from a producer without having first posted a bond to cover at least 15 days' shipment of milk, and that part of Act 195 of 1938 upon which said regulation was based, are both unconstitutional and therefore void, because they violate Section 1, Article II, and Section 1, Article III, of the Constitution of 1921, in that the Act transfers and delegates to the Milk Commission functions wholly legislative, which, under the Constitution, ‘ the Legislature must exercise and perform itself, and which cannot be delegated to a subordinate State agency’ . In other words, defendants challenge the constitutionality of the rule of regulation adopted by the Milk Commission, on the ground that the Legislature could not validly delegate to the Milk Commission the power to declare and provide what conduct on the part of an individual shall constitute a misdemeanor, it being defendants' contention that legislative power for state purposes can be validly exercised only by the Legislature itself and cannot be constitutionally delegated to some subordinate board. It was pointed out that the Constitution has not, by any general or special ordinance, authorized the Legislature to create the Louisiana Milk Commission and to endow it with legislative powers.

The motions to quash were overruled, and the defendants were brought to trial. They were convicted and sentenced. From the conviction and sentence they appealed.

The sole question presented to us by this appeal is whether or not the rule or regulation adopted by the Milk Commission, making it unlawful for any person engaged as distributor, pasteurizer, or manufacturer of milk or milk products to engage in such business or to buy milk from a producer without first posting a bond with the Commission, is constitutional. If that rule or regulation is invalid, then the indictments are invalid, and the prosecution must fall.

Whether that rule of the Commission is valid or not depends upon whether the Legislature exceeded its constitutional authority in delegating to the Commission the authority to declare what conduct on the part of an individual shall be unlawful.

The constitutionality of the Act as a whole has not been attacked in this proceeding. The defendants have challenged only that part of it which delegates to the Commission the power and authority to declare unlawful certain conduct of individuals, which conduct would otherwise be innocent or harmless.

Section 1, Article II, of the Constitution declares that ‘ The powers of the government of the State of Louisiana shall be divided into three distinct departments-legislative, executive, and judicial’ . Section 1, Article III, reads as follows: ‘ The legislative power of the State shall be vested in a Legislature, which shall consist of a Senate and a House of Representatives.’

If to engage as dealer in milk products or to buy milk from a producer without first posting a bond is unlawful, it is so because the Milk Commission has said so, and not because the Legislature itself has denounced such conduct as unlawful.

In State v. Gaster, 45 La.Ann. 636, 12 So. 739, 740, this court said: ‘ All crimes in Louisiana are statutory, and there can be no crime which is not defined and denounced by statute. The determination and definition of acts which are punishable as crimes are purely legislative functions, which cannot be delegated to, or exercised by, the judiciary.’

In that case, the defendant was prosecuted for committing a misdemeanor in office, as denounced by Section 869 of the Revised Statutes (Act 120 of 1855). That section of the Revised Statutes, as it then read, provided that: ‘ If any judge, justice of the peace, sheriff or other civil officer, shall be guilty of any misdemeanor in the execution of either of their respective offices, he shall on conviction suffer fine or imprisonment, or both, at the discretion of the court.’

The defendant was a member of the police force in New Orleans. The indictment against him set out that it was his duty as such officer to arrest, either with or without a warrant, all persons found in the act of violating any law of the state; that he had actual knowledge that one Emile Bauman kept his saloon open on Sunday, in violation of the so-called ‘ Sunday Law’ of the state, and that defendant ‘ did then and there unlawfully neglect and refuse to arrest the said Emile Bauman’ .

Defendant moved to quash the indictment on serveral grounds, one of which was: ‘ That, if said information is based on section 869 of the Revised Statutes, then and in that case said statute is null and void, and contrary to the constitution of the state of Louisiana, in this: That the said statute...