State v. Retowski

• Citation: 36 Del. 330,175 A. 325
• Court: Court of General Sessions of Delaware
• Decision Date: 25 October 1934
• Parties: STATE v. BLANCHE RETOWSKI

175 A. 325

36 Del. 330

STATE v. BLANCHE RETOWSKI

Court of General Sessions of Delaware, New Castle County

October 25, 1934

Court of General Sessions for New Castle County, No. 88, September Term, 1934.

Motion to quash indictment.

The indictment charged that the defendant did unlawfully keep in her possession alcoholic liquor, to-wit:

"Eleven quarts of whiskey, in containers having a capacity of more than one quart each, on which the tax, as provided by Section 16, Paragraph 6, of the Liquor Control Act, had not been paid, and the proper stamps, provided for by said act, had not been firmly affixed to said containers, as provided by Rule 42 of the Delaware Liquor Commission. * * *"

Chapter 18, Volume 38, Laws of Delaware, creates a commission for the control of the manufacture, distribution, sale and transportation of alcoholic liquors, wines and beer. Section 16, par. 6, provides,

"No 'person' may purchase and receive from the Commission, or from any 'manufacturer' or importer any 'alcoholic liquor' without paying to the Commission a tax on such 'alcoholic liquor' purchased and at the following rates. * * *" And after providing for the rates of tax, it proceeds, "The Commission shall make and publish such rules and regulations with respect to the collection and/or payment of such tax or taxes as it may deem proper and all such rules and regulations that are not inconsistent with the provisions of this Act shall have the force and effect of law. Any violation of any such rules and regulations shall constitute a misdemeanor and any 'person' convicted of any such violation shall be punished by a fine not exceeding One Thousand Dollars ($ 1,000.00) and shall in addition thereto pay the costs of prosecution."

The commission made and promulgated a rule known as Rule No. 42 entitled, "A rule regarding the purchasing, receiving transportation, or possession of alcoholic liquors," as follows:

"It shall be unlawful for any person to purchase, receive transport or keep in his possession alcoholic liquors in any container having a capacity of more than one quart (40 fluid oz.), unless the tax provided in Section 16, Paragraph 6, of the Liquor Control Act, shall have been paid and stamps evidencing such payment have been firmly affixed to the container."

"No alcoholic liquor shall be transferred from the original container to any other container, nor shall said original container be refilled, either wholly or in part."

"The possession by any person of alcoholic liquor in a container having a capacity of more than one quart (40 fluid oz.) to which the stamps have not been affixed as herein provided shall be prima facie evidence that the tax on such alcoholic liquor has not been paid and said alcoholic liquor shall be seized."

The defendant moved to quash the indictment contending that Rule No. 42 is void and of no effect in that, it is distinctly legislative in character and not administrative, and that the commission exceeded its authority under the statute in that, the authority was limited to the making and promulgation of rules with respect to the payment and collection of taxes.

The State contended that the rule in question was an administrative rule merely, not legislative in character and within the power of the commission to make and promulgate under the authority of Section 16, par. 6.

Indictment quashed.

P. Warren Green, Attorney-General, for the State.

Francis A. Reardon for defendant.

LAYTON, C. J., and REINHARDT, J., sitting.

OPINION

LAYTON, C. J.

While it is a maxim of constitutional law that the power conferred upon a legislature to make laws cannot be delegated by that department to any other body or authority, 1 Cooley, Cons. Lim. (8th Ed.) 224, it is equally well settled that a legislature, in enacting a law, complete in itself, designed to accomplish the regulation of particular matters, may expressly authorize an administrative body, within definite limits, to provide rules and regulations for the complete operation and enforcement of the law within its express general purpose. 12 C. J. 845; 6 R. C. L. 178.

Chief Justice Marshall, in Wayman v. Southard, 23 U.S. 1, 10 Wheat. 1, 6 L.Ed. 253, drew the distinction between the important matters which are for legislative regulation exclusively and those matters of less interest as to which a general provision might be made, which he termed the power "to fill up the details." The power of delegation is based upon necessity brought about by the increasing demands made upon legislative bodies by the growing complexity of human activities. 1 Cooley, supra, 231. For there are many things necessary to wise and useful legislation which cannot be known to the legislature and, therefore, must be determined outside the legislative hall. Locke's Appeal, 72 Pa. 491, 13 Am. Rep. 716.

The legislature also may provide for the punishment of violations of administrative rules as public offenses, and such rules are not raised to a legislative character thereby. United States v. Grimaud, 220 U.S. 506, 31 S.Ct. 480, 55 L.Ed. 563.

It is conceded that it is difficult to define the line which separates the legislative power to make laws from administrative authority to make regulations. United States v. Grimaud, supra; Wayman v. Southard, supra; St. Charles State Bank v. Wingfield, 36 S.D. 493, 155 N.W. 776; nor can the multitude of decisions be harmonized, as the almost infinite variety of detail and circumstance and of the laws intended to meet them have led to an almost equal variety of judicial decisions. State v. Public Serv. Commission, 94 Wash. 274, 162 P. 523. The question is one which has to be answered in each individual case according to the judgment of the Court. 2 Willoughby, Const., par. 777. The true distinction is between the delegation of power to make the law, which necessarily involves a discretion as to what it shall be, and conferring authority or discretion as to its execution, to be exercised under and in pursuance of the law. Cincinnati, W. & Z. Ry. Co. v. Clinton County Com'rs, 1 Ohio St. 88.

But this power in a legislature to confer authority upon an administrative body to make rules and regulations is distinctly limited. It does not exist for any and every purpose. Williamson v. U. S., 207 U.S. 425, 28 S.Ct. 163, 52 L.Ed. 278. The authority must be within fixed and valid limits. 6 R. C. L. 178; State v. A. C. L. Ry. Co., 56 Fla. 617, 47 So. 969, 32 L.R.A. (N. S.) 639; and the authority of the administrative body, acting under such grant of power, is limited to the making of reasonable rules and regulations within the circumference of the power granted. As stated in 12 C. J. 845, the power conferred to make regulations for carrying a statute into effect must be exercised within the power delegated, that is to say, must be confined to details for regulating the mode of proceeding to carry into effect the law as it has been enacted and it cannot be extended to amending or adding to the requirements of the statute itself. See Morrill v. Jones, 106 U.S. 466, 1 S.Ct. 423, 27 L.Ed. 267; St. Charles State Bank v. Wingfield, supra. Implied authority in an executive officer to repeal, extend or modify a law may not lawfully be inferred from authority to enforce it. United States v. 11,150 Pounds of Butter (C. C. A.), 195 F. 657; nor may the power vested in the administrative body be extended to the making of rules subversive of the statute; St. Louis, etc., Packing Co. v. Houston (C. C. A.), 215 F. 553. As stated in United States v. Grimaud, supra, a case strongly relied upon by the State, the administrative rule must not go outside of the circle of that which the act affirmatively requires to be done, or treats as unlawful, if done.

Not questioning, therefore, the right of the legislature to attach a criminal liability to the violation of an administrative order, it is, however, the duty of the Courts, where there is a prosecution for the violation of such order, to scrutinize the case with especial care, for it must clearly appear that the order is one which falls within the scope of the authority conferred. 2 Willoughby, supra, page 281.

The question raised by the motion to quash is not whether, under the Constitution of this State, the legislature had not the power to delegate to the commission the authority to make reasonable rules and regulations relating to the payment and collection of alcoholic liquor taxes, and to make violations of such regulations punishable as misdemeanors, but whether the commission, in adopting Rule 42, has acted within the scope of the power granted. The rule does not appear to be aimed directly at the payment or collection of taxes. It contains no administrative detail with respect to the determination of taxes, or when or where they are to be paid, what books are to be kept and in what manner, what returns are to be made and the form thereof, or the duties of the several officers in regard to the collection of taxes. The first paragraph of the rule, and the one which is of immediate concern, makes it unlawful to keep in possession alcoholic liquors in any container of a capacity of more than one quart unless stamps evidencing the payment of the required taxes have been firmly affixed to the container. The second paragraph prohibits the transference of alcoholic liquor from the original container to any other container, and further prohibits the refilling of the original container. The third paragraph purports to declare a rule of evidence amounting to a presumption of guilt and commands the seizure of the liquor.

Considering the rule as a whole, or in its several parts, it is impossible to view it as a reasonable administrative regulation within the scope of the power to make rules for...