Yakima County Clean Air Authority v. Glascam Builders, Inc.

• Decision Date: 17 April 1975
• Docket Number: No. 43143,43143
• Parties: YAKIMA COUNTY CLEAN AIR AUTHORITY, Appellant, v. GLASCAM BUILDERS, INC., Respondent.
• Court: Washington Supreme Court

Page 255

85 Wn.2d 255

534 P.2d 33

YAKIMA COUNTY CLEAN AIR AUTHORITY, Appellant, v. GLASCAM BUILDERS, INC., Respondent.

No. 43143.

Supreme Court of Washington, En Banc.

April 17, 1975.

Smith & Scott, Richard C. Smith, Yakima, for appellant.

Walters, Whitaker & Finney, Frank J. Falk, Jr., Yakima, for respondent.

WRIGHT, Associate Justice.

This action raises questions as to the constitutionality of portions of the Washington Clean Air Act.

The Yakima County Clean Air Authority, the appellant herein, is a duly established air pollution control authority, operating under the authorization contained in RCW 70.94.053 et seq. It has the powers of a municipal corporation, including the right to maintain actions in its own name (RCW 70.94.081) and to enact ordinances, resolutions, rules, and regulations.

Appellant, acting through its board of directors, adopted consolidated regulation No. 1, which largely duplicates the Washington Clean Air Act. Because of the similarity of the regulation and the act, the challenges to the provisions of each will be discussed together.

In November, 1972, the control officer of appellant levied a $250 penalty upon respondent. No administrative action was taken by respondent who refused to pay the penalty. On April 6, 1973, this action was instituted to collect the penalty. The superior court entered a summary judgment of dismissal upon the ground that consolidated regulation No. 1 and the statute (RCW 70.94.431) were unconstitutional. This appeal followed.

Three questions were presented to the superior court and by this appeal. (1) Is the power to enact ordinances, resolutions, rules and regulations an unconstitutional delegation of authority? (2) Is the administrative penalty provision of RCW 70.94.431 and section 7.01 of consolidated regulation No. 1 a violation of due process? and (3) Was respondent required to exhaust its administrative remedies?

We shall first consider the question of exhaustion of administrative remedies. The rule is well established that one claiming a constitutional right as a defense can proceed directly to assert that right in a judicial proceeding. There are several sound reasons for this rule. An administrative tribunal is without authority to determine the constitutionality of a statute, and, therefore, there is no administrative remedy to exhaust. The administrative remedy is established by the same statute which is being challenged and recourse to an administrative remedy would put the respondent in the position of proceeding under the statute which it seeks to challenge.

The rule is well stated in 2 Am.Jur.2d Administrative Law § 599 (1962) wherein it is said:

(I)n regard to enforcement proceedings it has been held that a defense of unconstitutionality of the statute providing the administrative procedure is not precluded by failure to exhaust appeal procedures, and that where the jurisdiction of the court has not been withdrawn by statute, the doctrine of exhaustion of administrative remedies is wholly misapplied when invoked against one not seeking equitable relief but merely defending himself against a regulation or order asserted to be invalid.

The question of delegation of authority will next be considered. The appellant is a municipal corporation and the authority of municipal corporations to enact ordinances is clearly recognized. American Fed'n of Teachers v. Yakima Sch. Dist. No. 7, 74 Wash.2d 865, 447 P.2d 593 (1968).

A more serious problem is whether the statute and the regulation contain sufficient guidelines for the exercise of the authority delegated to the control officer. The challenged provision is stated substantially the same in RCW 70.94.431 and in consolidated regulation No. 1, § 7.02.

The requirements may be in general terms when the subject matter will not admit of more specific standards. The penalites must be within normally acceptable limits. This, accompanied by procedural safeguards which control arbitrary administrative action, provides a constitutionally permissible delegation. Rody v. Hollis, 81 Wash.2d 88, 500 P.2d 97 (1972).

The leading modern case upon the subject is Barry & Barry, Inc. v. Department of Motor Vehicles, 81 Wash.2d 155, 159--161, 500 P.2d 540, 543 (1972), in which this court said:

We are convinced that these two conditions are met in the instant case, and that the challenged delegation of legislative power is valid and constitutional.

We are convinced and have no hesitancy in saying that the strict requirement of exact legislative standards for the exercise of administrative authority has ceased to serve any valid purpose. In addition to lacking purpose, the doctrine in several respects impedes efficient government and conflicts with the public interest in administrative efficiency in a complex modern society.

First, by preventing the working out of certain administrative policies at the administrative level on a case-by-case basis, the doctrine frustrates the efficient operation of the appropriate governmental processes. The human intellect is weakest when dealing with abstraction and generality, strongest when considering narrow, concrete, and particular problems. Therefore, the best way to work out policy is often for the legislative body to avoid generalization and to assign to an administrative agency the task of working out such policy on a case-by-case basis. 1 K. Davis, Administrative Law Treatise § 2.08 (1958). We are convinced that in the instant case the legislature, after defining his function in general terms, entrusted the Director of the Department of Motor Vehicles with full authority and responsibility for appropriate action to consummate legislative policy, reasoning that as a common sense and practical matter, the director would be more capable than the legislature of formulating reasonably appropriate standards for the approval of employment agency fees, based on his case-by-case experience with the contracts presented to him for approval.

Second, requiring the legislature to lay down exact and precise standards for the exercise of administrative authority destroys needed flexibility. Normally, the legislature meets only biennially, It does not have the opportunity to adopt a fee schedule and then alter it periodically to meet the changing needs of employment agencies and the public as revealed by administrative experience. In addition, it seems probable that various economic factors would affect any meticulously prescribed legislative standards, and it is doubtful that such standards could be attuned to coincide with these factors on a biennial basis.

Finally, a strictly construed standards doctrine is logically unsound and legally meaningless. The needs and demands of modern government require the delegation of legislative power without Specific guiding standards. In attempting to satisfy requirements of precise standards, the courts have been forced to rely on vague adjectives of generality such as 'reasonable' or 'appropriate.' We think that it is time to abandon the notion that the presence or absence of vague verbalisms like 'public interest' or 'just and reasonable' make all the difference between valid legislation and unlawful delegation. The possibility of basing the decision as to the constitutionality of a statute on the existence or nonexistence of such vague standards leads to the undesirable result that a particular delegation is more likely to be valid if it is attached to governmental action of which the reviewing court approves than if it authorizes action the court considers unwise.

An earlier case to the same effect was State v. Cater's Motor Freight System, Inc., 27 Wash.2d 661, 179 P.2d 496 (1947).

Respondent also contended the statute and the ordinance were unconstitutional because of permitting a range of penalties for the same offense. This differs from Olsen v. Delmore, 48 Wash.2d 545, 295 P.2d 324 (1956), for there the prosecuting attorney was given discretion to charge the same act either as a felony or as a gross misdemeanor. The holding of Olsen was limited to that situation by State v. Boggs, 57 Wash.2d 484, 358 P.2d 124 (1961) and State v. Blanchey, 75 Wash.2d 926, 454 P.2d 841 (1969), wherein it was held a range of punishment was constitutionally permissible.

Here, the objection is that a penalty can be either criminal, or civil, or both. One of the most common instances of the imposition of civil or criminal penalties, or both, is in the enforcement of statutes relating to Internal Revenue, which has been approved by Helvering v. Mitchell, 303 U.S. 391, 58 S.Ct. 630, 82 L.Ed. 917 (1938). We hold it is constitutionally permissible to provide for civil or criminal penalties, or both, for the same act. Herein, the procedure does provide for due process. The statute and the ordinance are substantially similar. A notice is served. The effect of the notice is somewhat similar to the effect of service of a summons in a civil action. The person served is given a period of 15 days within which to request a hearing before the Air Pollution Control Hearing Board. In the interim, the collection of the fine does not take place, and the collection is deferred until after the hearing. There is, thus, no deprivation, even temporarily, without a hearing. After that the collection of the fine takes place in a civil action in the superior court. There is adequate opportunity to be heard.

What the statute herein provides is well within the requirements for due process as set forth in Flory v. Department of Motor Vehicles, 84 Wash.2d 568, 527 P.2d 1318 (1974); Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970); Cuddy v. Department of Public Assistance, 74 Wash.2d 17, 442 P.2d 617 (1968).

Respondent places great reliance upon United States Steel Corp. v. State, 65 Wash.2d 385, 397 P.2d 440 (1964). That case is readily distinguishable from the instant case. Further, it is readily apparent that judicial viewpoint upon the...