State v. Smith

• Decision Date: 14 August 1975
• Docket Number: No. O--75--290,O--75--290
• Parties: The STATE of Oklahoma, Appellant, v. Preston SMITH, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 754

539 P.2d 754

The STATE of Oklahoma, Appellant, v. Preston SMITH, Appellee.

No. O--75--290.

Court of Criminal Appeals of Oklahoma.

Aug. 14, 1975.

Dean E. Warren, Dist. Atty., Terry L. Amend, Asst. Dist. Atty., Le Flore County, poteau, for appellant.

Joe K. Page, Poteau, for appellee.

OPINION

PER CURIAM:

The Appellee, Preston Smith, was charged in the District Court, LeFlore County, Case No. CRM--74--891, with the offense of Hunting Deer With Dogs, in violation of regulations promulgated by the Wildlife Conservation Commission under authority of the Oklahoma Wildlife Conservation Code, 29 O.S.Supp.1974, § 1--101 et seq. The appellee, defendant below, demurred to the information on the basis that the offense charged was not a crime in the State of Oklahoma. The trial court sustained the demurrer, dismissed the case, and granted the State an exception to the ruling. From said ruling, the State has perfected as a reserve question of law the issue herein presented.

As aforementioned, on a pretrial motion the trial court sustained the defendant's demurrer to the information. Therefore, no facts of the alleged offense were presented, thus leaving only the legal issue to be resolved by this Court. That legal issue being; Whether or not 'Hunting Deer With Dogs' constitutes a violation of the law in the State of Oklahoma.

Adhering to the arguments of the defendant, the lower court sustained the demurrer to the information declaring that the regulation did not constitute a violation of the law; all of which was predicated on the proposition that the delegation of authority under 29 O.S.Supp.1974, § 3--103, subd. B, par. 11, was a delegation of legislative power and was therefore unconstitutional. While the line dividing those delegations by the Legislature which are constitutional and those which are not is indeed a thin line, we are of the opinion that the delegation presently contested was a legislative delegation of administrative authority and is therefore constitutional. Shilkett v. State, 29 Okl.Cr. 17, 232 P. 127 (1925); Ex parte Woodruff, 90 Okl.Cr. 59, 210 P.2d 191 (1949); Isaacs v. Oklahoma City, Okl., 437 P.2d 229 (1966), and, State v. Parham, Okl., 412 P.2d 142 (1966).

The standard set forth by the Legislature as a guide for the administrative body engaged in the promulgation of rules and regulations need not be actually expressed in the Act wherein the authority is delegated. But rather, as is set forth in Parham, supra, the following has become the rule:

'. . . From an analysis of these cases and others it is clear that the standards or guidelines set by the Legislature must often, of necessity, be expressed in general terms or arrived at by an analysis of the legislation as a whole. To require detailed and minute guidelines to the Board would be to destroy the flexibility and effectiveness required in dealing with the many and varying factual situations that arise in carrying out the policy set by the Legislature. Baily v. State Board of Public Affairs, 194 Okl. 495, 153 P.2d 235. . . .'

Based on the above precedent, this Court does not hesitate to uphold the constitutionality of the delegation.

The defendant also contends that even if the delegation is constitutional the particular rule promulgated by the Wildlife Conservation Commission prohibiting 'the use of dogs in any manner in pursuant of deer,' is void.

Our response to this contention is based on 29 O.S.Supp.1974, § 3--103, subd. B, par. 11, which states that one of the functions and powers of the Commission is 'to regulate the seasons and harvest of wildlife.' The particular regulation in question falls squarely within this delegation of authority by controlling one aspect of the harvesting of wildlife, namely, the means by which deer may be harvested.

The defendant further argues that the Legislature, by enactment of 29 O.S.Supp.1974, § 5--201, subd. A, has limited the prohibited means of taking wildlife to those instruments listed in that provision, which reads as follows:

'A. Except as otherwise provided, no person may utilize at any time for the purpose of killing or capturing any game mammal, game bird or nongame bird, the following means:

'1. Any trap, net, snare, cage, pitfall, baited hook or similar device;

'2. Any drug, poison, narcotic, explosive or similar substance;

'3. Any swivel or punt gun of greater caliber than ten (10) gauge; or

'4. Any device which generates electricity.'

The defendant proposes that, since the Legislature enacted the above statute, any other law dealing...