Winslow v. Fleischner

• Decision Date: 29 July 1924
• Citation: 228 P. 101,112 Or. 23
• Parties: WINSLOW v. FLEISCHNER ET AL.
• Court: Oregon Supreme Court

228 P. 101

112 Or. 23

WINSLOW v. FLEISCHNER ET AL.

Supreme Court of Oregon

July 29, 1924

In Banc.

Appeal from Circuit Court, Marion County; George G. Bingham, Judge.

Action by W. C. Winslow against I. N. Fleischner and others. Judgment for plaintiff, and defendants appeal. Affirmed.

This is a suit instituted to enjoin placing in effect an alleged void order of the defendants who constitute the game commission of the state and the prosecuting attorneys of Douglas and Marion counties, respectively. The part of the order attacked is as follows:

"That for the purpose of protecting certain species of the wild game life of the state from extermination, and for the purpose of propagating and increasing such species of wild game as hereinafter mentioned, the state game commission of the state of Oregon hereby gives notice that the open season for hunting, shooting, killing, taking, or having in possession, alive or dead, male deer with horns throughout the entire state of Oregon, as defined in section 2, c 153, General Laws of Oregon 1921, shall be and is hereby declared to be closed for the year 1924.

"Notice is also given that the state game commission of the state of Oregon hereby declares an open season for the hunting killing, and taking of male deer with horns throughout the entire state of Oregon. Said open season shall be and is hereby declared to be from the 10th day of September, 1924 to the 31st day of October, 1924, both dates inclusive."

Two questions only are presented by this appeal, namely: First whether or not the order in question is authorized by law and, second, whether or not the law authorizing such order attempted to delegate legislative powers and is therefore unconstitutional.

Miles H. McKay, Asst. Atty. Gen. (I. H. Van Winkle, Atty. Gen., on the brief), for appellants.

W. C. Winslow and William H. Trindle, both of Salem, for respondent.

COSHOW, J. (after stating the facts as above).

There is no doubt that the order complained of is in harmony with the second paragraph of section 8, c. 66, General Laws of 1921. The defendants contend that under the authority of Winslow v. Fleischner (Or.) 223 P. 922, the order is valid. The contention is that the case above cited rules that the game commission is authorized by said section 8 to close any one season. But we do not think that is the proper construction of the court's opinion in that case. Following the thoroughly established practice of this court, we would not declare an act of the Legislature void, unless such a declaration was necessary to a proper disposition of the case under consideration. We did rule that, assuming the statute to be valid, the order there assailed was not authorized by the statute.

The instant case presents squarely for determination the validity of the portion of said chapter 66 referred to above.

The same Legislature which enacted said chapter 66, Laws 1921, also enacted chapter 153, Laws 1921, relating to the subject-matter of preserving and protecting game animals and fish. These two statutes must be construed together. 2 Lewis' Sutherland Statutory Construction (2d Ed.) 844, 845, § 443; 25 R. C. L. 1062; Stoppenback v. Multnomah County, 71 Or. 493, 509, 142 P. 832, and cases there cited.

"It is to be observed that in the comparison of different statutes passed at the same session or nearly at the same time this circumstance has weight; for it is usually referred to as indicating the prevalence of the same legislative purpose, as rendering it unlikely that any marked contrariety was intended. But whether the prior statute is recent or of long standing it must yield if there is a conflict." 2 Lewis' Sutherland Statutory Construction (2d Ed.) 845, §§ 443-448.

Chapter 66 was approved February 14, 1921, and chapter 153 seven days later. If there be any irreconcilable conflict between the two, the latter will prevail over the former. 1 Lewis' Sutherland Statutory Construction, 461, § 247; Benson v. Withycombe, 84 Or. 652, 658, 659, 166 P. 41, and cases there cited.

By chapter 153, it is lawful to kill deer with horns from August 20th to October 20th in district No. 1, and from September 1st to October 31st in district No. 2 of each year. The order assailed declares that the open season is closed for the year 1924 for the entire state. It in effect closes the open season for the year 1924. This is not a repeal of the statute, but is a suspension thereof. I Lewis' Sutherland Statutory Construction (2d Ed.) 459,§ 246. The order continues by prescribing an open season for the year 1924.

Act February 14, 1921, c. 66, § 8, attempts to empower the game commission with power to--

"close any open season or open any closed season in any county or district for the shooting or angling of any kind or species of game fish, game animals, fur-bearing animals, game birds or nongame birds for such time as the state game commission may designate."

Act February, 1921, c. 153, § 10, among other things, provides:

"It shall be lawful within the state of Oregon to hunt * * * deer with horns, from August twentieth to October twentieth of each year."

There appears to be an irreconcilable conflict between the two statutes because the same act or course of conduct cannot be both lawful and unlawful at the same place and time and under the same circumstances. Chapter 153, therefore, repealed by implication, that part of chapter 66 attempting to empower the game commission to close any open season or open any closed season.

We also conclude that the order of the game commission assailed is legislation. No condition, contingency, exigency, or state of facts is mentioned or referred to in justification of the order either as it suspends the operation of the statute or enacts a closed season for 1924. Chapter 66 contains no provision declaring the state of facts upon the occurrence of which the game commission may close an open season. The language of the statute would confer an arbitrary unqualified power upon the commission to substitute its will for that of the Legislature. The suspension of a statute is a legislative act, unless based upon some condition, contingency, exigency, or state of facts, declared by the legislative enactment to be sufficient to warrant the suspension by an executive or administrative body whose duty it is to execute or administer the law suspended.

The power to delegate legislative functions is discussed in 1 Lewis' Sutherland Statutory Construction (2d Ed.) pp. 148-170, §§ 89-101. Numerous cases are there analyzed and discussed, illustrating what is and what is not a delegation of legislative function.

"Legislative power is delegated contrary to the maxim stated when the Legislature attempts to confer on others a power of substantive legislation, to be exercised independently or in connection with the Legislature, or when it constitutes an inferior Legislature or lawmaking body. At the same time it is necessary for the Legislature to confer more or less of discretion upon executive and administrative officers in applying a law and carrying it into effect, and in many cases it is expedient to vest in such officers more or less of power to make rules and regulations for the purpose of applying and executing the law. It is, perhaps, impossible to lay down any general rule by which it may be certainly and readily determined whether such a law is or is not an unlawful delegation of legislative power. 1 Lewis' Sutherland Stat. Con. (2d Ed.) 149.

"The true test and distinction whether a power is strictly legislative, or whether it is administrative, and merely relates to the execution of the statute law, '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.' The first cannot be done. To the latter, no valid objection can be made."

See State v. Burdge, 95 Wis. 390, 70 N.W. 347, 37 L. R. A. 157, 60 Am. St. Rep. 123.

The case of United States v. Grimaud, 220 U.S. 506, 31 S.Ct. 484, 55 L.Ed. 563, is a leading case on this subject. On page 520 official report (31 S.Ct. 484), the opinion quotes with approval from Field v. Clark, 143 U.S. 649, 694, 12 S.Ct. 495, 36 L.Ed. 294, as follows:

"The Legislature cannot delegate its power to make a law, but it can make a law to delegate a power to determine some fact or state of things upon which the law makes, or intends to make its own action depend."

In the Grimaud Case the rules and regulations complained of were made in conformity with, and in subordination to, a general law of Congress. There was no attempt to change, modify, or suspend any part of the general law. In the instant case, the game commission asserts the authority to suspend the law, and enact a different law for a designated period of time. The case of Light v. United States, 220 U.S. 523, 31 S.Ct. 485, 55 L.Ed. 570, rules the same as the Grimaud Case.

The case of Brodbine v. Inhabitants of Town of Revere, 182 Mass. 598, 66 N.E. 607, also involved the validity of rules and regulations under a general statute. On page 602 of 182 Mass., on page 609 of 66 N. E., the court says:

"This principle is analogous to that which marks a distinction between matters that are substantive and those that are incidental and subsidiary, in the cases which decide that parties cannot bind themselves by a contract to settle their controveries by arbitration out of court, although they may bind themselves by such a contract in regard to incidental matters, like the assessment of damages."

There is nothing in this case sustaining the contention that an executive or administrative officer may change the substance of a legislative enactment.

"An

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