Home |
Climate Change Project |
Table of Contents |
Courses | Search |
[1] | |
[2] | No. 82-KA-1717 |
[3] | 439 So. 2d 357; 1983.LA.0001645 |
[4] | March 18, 1983 |
[5] | STATE OF LOUISIANA v. LEROY BROOM PUBLIC DOMAIN CITE: STATE v. BROOM , 82-KA-1717 (LA. 3/18/83); 439 SO. 2D 357 |
[6] | SUPREME COURT OF LOUISIANA 1983.LA.1645 |
[7] | On Appeal from the Ninth Judicial District Court, Parish of Rapides, Honorable Richard E. Lee, Judge. |
[8] | DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE CALOGERO |
[9] | Leroy Broom was charged by bill of information with an offense under R.S. 40:1471.18 for having violated the regulations of the Louisiana Explosives Code (LAC 17-11: *fn1 to 11:23).1 He filed a motion to quash the bill of information. After a hearing the trial judge granted the motion upon finding that the regulation was unconstitutionally vague. The case is before us on appeal, the state challenging the lower court ruling. *fn2 |
[10] | The facts surrounding the case, although not especially pertinent to our resolution of the legal issues before us, seem to be as follows: *fn3 On February 9, 1982, two Louisiana State Police Officers observed defendant park a pickup truck and portable explosives magazine trailor in the parking lot of a cafeteria alongside a larger truck of the same company. The defendant's vehicle displayed four placards reading "Explosives A". The officers observed the defendant exit the truck and reverse two of the four placards to read "Drive Safely", and then enter the restaurant with the driver of the larger truck. Defendant admits that the truck did contain explosives but states that he only went into the restaurant to purchase a fast food order to go. The state alleges that the truck contained 486 pounds of dynamite and 15 blasting caps. The officers arrested defendant and charged him with violating a regulation contained in the explosives code, an act made criminal by La. R.S. 40:1471.18. |
[11] | La. R.S. 40:1471.1 - 1471.22 consist of a group of statutory provisions dealing with the regulation of explosives in this state. Among the statutory provisions (La. R.S. 40:1471.9) is one which requires the Secretary of Public Safety to "make, promulgate and enforce regulations setting forth minimum general standards covering manufacture, transportation (including loading and unloading), use, sale, handling and storage of explosives." *fn4 |
[12] | La. R.S. 40:1471.18 provides a penalty for violating regulations adopted by the Secretary of Public Safety. La. R.S. 40:1471.18 (Penalties) provides in pertinent part: |
[13] | ... Any person who shall in an application for a license or permit as herein provided, knowingly make a false statement, or who shall obtain explosives under a false statement, pretense or identification, or who shall knowingly otherwise violate any provisions of this Chapter, or regulation promulgated pursuant to this Chapter, shall, upon conviction, be guilty of a felony and liable to a fine of not less than two hundred fifty dollars nor more than one thousand dollars or imprisonment in the state prison not less than one year nor more than five years, or both... (emphasis provided). |
[14] | In accordance with La. R.S. 40:1471.9, the Secretary of Public Safety adopted a series of regulations (part of a Louisiana Explosives Code). Among them is LAC 17-11:14.6, which defendant is charged with having violated. That regulation provides: |
[15] | The operator of a conveyance transporting explosives shall not leave such vehicle unattended except while actually making deliveries. |
[16] | The knowing violation of LAC 17-11:14.6 (as well as any other of the explosives regulations) is made a felony by La. R.S. 40:1471.18 and subjects the violator to a fine or "imprisonment in the state prison," at the discretion of the judge. |
[17] | Defendant filed a motion to quash the bill of information arguing both that the bill of information "fails to charge an offense which is punishable under a valid statute or regulation" and "that the statute and regulation under which he is being prosecuted are unconstitutionally vague." |
[18] | The trial judge ruled in favor of defendant on the vagueness issue and, hence, did not pass judgment on the alternative argument that defendant was not charged under a valid statute or regulation. He concluded that the phrase "while actually making deliveries" was susceptible of two different meanings: (1) while actually making deliveries could relate to the entire period of time from the moment you leave the warehouse with the explosives until you arrive at the prescribed destination; or (2) while actually making deliveries could relate to only the time period when the driver is at the prescribed destination and the explosives are being unloaded. Thus the operator of a conveyance might reasonably believe, from the language of the regulation, that he is at liberty to leave the vehicle unattended not only at the unloading destination but as well during any part of the journey from his departure to the conclusion of his delivery. |
[19] | The state argues that the phrase "while actually making deliveries" can only reasonably be interpreted as describing that point in time when a driver is at his destination whereat delivery is being made. The trial judge found that the phrase was susceptible of both interpretations and held that the provision was thus unconstitutionally vague. |
[20] | A criminal statute is unconstitutionally vague if its meaning is not clear to the average citizen. State v. Stilley, So.2d (La. 1982), No. 82-KA-0709; State v. Jackson, 404 So.2d 952 (La. 1981). An ordinary person of reasonable intelligence must be capable of discerning the meaning of the statute and conforming his conduct to it. State v. Stilley, supra; State v. Baron, So.2d (La. 1982), No. 81-KA-2626. As noted by the trial judge, in State v. Dousay, 378 So.2d 414 (La. 1979), this Court set forth two guidelines that must be considered in determining whether a statute is unconstitutionally vague. It was stated therein: |
[21] | The first of these is that individuals must be given adequate notice that certain contemplated conduct is proscribed and punishable by law. The second is that adequate standards must be provided for those charged with determining the guilt or innocence of an accused. |
[22] | In the criminal code itself the following rule of interpretation is provided in La. R.S. 14:3: |
[23] | The articles of this Code cannot be extended by analogy so as to create crimes by provided for herein; however, in order to promote justice and to effect the objects of the law, all of its provisions shall be given a genuine construction, according to the fair import of their words, taken in their usual sense, in connection with the context, and with reference to the purpose of the provision. |
[24] | The regulation at issue, LAC 17-11:14.6, inferentially permits the operator of a motor vehicle transporting explosives to leave his vehicle unattended "while actually making deliveries," and by its express terms prohibits leaving the vehicle unattended otherwise. Thus, the question for our determination is whether this provision is clear to the average citizen, or, stated another way, whether an ordinary person of reasonable intelligence is capable of discerning its meaning. In arriving at this determination, the words of the regulation are to be "taken in their usual sense, in connection with the context, and with reference to the purpose of the provision." Applying this standard, we conclude that the provision is not unconstitutionally vague. |
[25] | Within this specific regulation itself (LAC 17-11:14.6), both the words "deliveries" and "transporting" are used, indicating some intended distinction in their meaning. Reading the two words together and in context indicates that deliver, as used in the regulation, does not refer to the over-the-road transportation, but rather refers to the physical handing over of the explosives. This distinction is similarly made throughout the Explosives Code. For example, LAC 17-11:14.3 requires conveyance transporting explosives to come to a full stop at any railroad crossing or main highway; LAC 17-11:14.4 states that vehicles transporting explosives shall not be driven in excess of 50 miles per hour; LAC 17-11:14.9 admonishes that conveyances transporting explosives must avoid congested areas and heavy traffic; LAC 17-11:14.10 provides that the delivery of explosives shall only be to authorized persons and "into authorized magazines or approved temporary storage or handling areas;" LAC 17-11:15.6 provides for the utilization of specific procedures "when explosives are brought into the locality under the jurisdiction of these Rules and Regulations, by means of transportation for delivery to an intermediate receiver." |
[26] | Thus, consistently throughout the regulations the word transport (or derivatives of it) is used to refer to that period of time when the vehicle is traveling from one point to another with the explosives. And the word deliver (and its derivatives) is used to refer to the period of time when the explosives are actually being handed over. There is no reason for us to conclude that those words, when used in the regulation under consideration, were intended to mean otherwise. Nor would the ordinary person of reasonable intelligence find difficulty in understanding the regulation as we understand and have here interpreted its meaning. |
[27] | Furthermore, this Court was once before called upon to consider whether the word deliver was vague [State v. White, 254 La. 389, 223 So.2d 843 (1969)] and at that time concluded: |
[28] | The words "deliver," "delivery," and "delivering" are ordinary words and are used constantly in everyday conversation. They indicate a transfer or handing over. |
[29] | For these reasons, we conclude that LAC 17-11:14.6 gives an individual adequate notice of the proscribed conduct and it provides adequate standards for those charged with determining the guilt or innocence of an accused. Accordingly, we find that the regulation is not unconstitutionally vague. |
[30] | Defendant's second contention is that LAC 17-11:14.6 is not a valid "statute or regulation" because La. R.S. 40:1471.1 - 1471.22 unconstitutionally delegate authority to the Secretary of Public Safety to "make, promulgate and enforce" the regulations. *fn5 |
[31] | Defendant argues, principally, that the delegation of legislative authority to the Secretary of Public Safety authorized by the above provisions is unconstitutional because it was not accompanied by "a sufficient basic standard and rule of action for guidance of the instrumentality or officer that is to administer the law." City of Alexandria v. Alexandria Firefighters Association, 57 So.2d 673 (La. 1952). |
[32] | The state, on the other hand, argues, that the delegation of authority to the administrative agency to "make, promulgate and enforce regulations" was made with sufficient guidelines and safeguards to support its constitutionality. |
[33] | Louisiana's Constitution, like the United States Constitution, Provides for a separation of powers among the three branches of government, legislative, executive and judicial. La. Const. art. II, 1; U.S. Const. arts. I, II, and III. It provides that "no one of these branches,... shall exercise power belonging to either of the others." La. Const. art. II, 2. The legislative power of the state is vested in a legislature, consisting of a Senate and a House of Representatives. La. Const. art. III, 1. It is from these provisions that we derive the general principle "that legislative power, conferred under constitutional provisions, cannot be delegated by the Legislature either to the people or to any other body or authority." City of Alexandria, supra. |
[34] | If applied literally, the Constitution would absolutely preclude any delegation of legislative power to a non-legislative body. Such literal application of the non-delegation principles would unduly hamper the Legislature in the exercise of its constitutionally vested powers. Accordingly, the courts have repeatedly recognized that there are exceptions to the non-delegation doctrine. United States v. Shreveport Grain Elevator Co., 287 U.S. 77, 53 S.Ct. 42, 77 L.Ed. 175 (1932); United States v. Grimaud, 220 U.S. 506, 31 S.Ct. 480 (1911); State v. Rodriguez, 379 So.2d 1084 (La. 1980); Schwegmann Brothers Giant Super Markets v. McCrory, Commissioner of Agriculture, 237 La. 768, 112 So.2d 606 (1959); State v. Guidry, 142 La. 422, 76 So. 843 (1917); State v. Syas, 136 La. 628, 67 So. 522 (1915). Thus, it has been provided that so long as the legislature establishes by statute standards for the guidance of the executive or administrative body or officer such that the body or officer is not vested with arbitrary discretion there is no unconstitutional delegation of legislative authority to the executive branch of the government. State v. Rodriguez, supra. |
[35] | The task of determining whether a particular delegation is accompanied by sufficient guiding standards is not a simple one. This was recognized by United States Chief Justice John Marshall in 1825: |
[36] | The line has not been exactly drawn which separates those important subjects, which must be entirely regulated by the legislature itself, from those of less interest, in which a general provision may be made, and power given to those who are to act under such general provision, to fill up the details. |
[37] | Wayman v. Southard, 23 U.S. (10 Wheat) 1, 43 L.Ed. 253. |
[38] | The problem has grown even more pervasive in these modern times where our legislature is confronted with such complex problems involving numerous details with which the legislature is often not equipped to deal. *fn6 We are faced with a balancing of the legislative need to delegate authority against the constitutional mandate that the legislature retain in its own hands the supreme legislative power. It has been noted that: |
[39] | [t]he key to an intelligent application of this [balancing] is an understanding that, while delegations of power to administrative agencies are necessary, such transfers of power should be closely monitored to insure that the decision-making by the agency is not arbitrary and unreasoned.... |
[40] | Glenn, the Coastal Management Act in the Courts: A Preliminary Analysis, 53 N.C.L.Rev. 303, 315 (1974). |
[41] | Thus, our "guiding standards" test has been used as a means of determining where the line of legislative delegation should be drawn. In search for whether a certain delegation of legislative authority vests arbitrary discretion in an administrative body, we have heretofore looked primarily to declarations in the delegating statutes of the goals, policies and standards which a given agency is to apply in the exercise of its delegated powers. However, with the growing complexity of the issues with which our legislature must deal, the adequate guiding standards test, if strictly applied, would limit the legislature's ability to act effectively. *fn7 Statutory declarations of standards can only be as specific as the circumstances permit. When there is an obvious need for expertise in the achievement of legislative goals, the legislature itself simply cannot be required to lay down a detailed agenda covering every conceivable problem which might arise in the implementation of the legislation. Insofar as legislative standards are concerned it should be enough that general policies and standards have been articulated which are sufficient to provide direction to an administrative body possessing the expertise to adapt the legislative goals to varying circumstances. |
[42] | The key purpose of the courts' application of the adequate guiding standards test to legislative delegations of authority is to prevent the decision making by the agencies from being arbitrary or unreasoned. That purpose can better be served, by looking to the procedural safeguards which accompany the delegated authority along with the guiding standards. Thus, to insure that the regulatory body is not given unbridled discretion there is a need to examine more acutely the procedural safeguards mandated by the Legislature and/or adopted by the administrative agency, while de-emphasizing the imperative need for comprehensive statutory standards. The combination of less emphasis on guiding standards and more emphasis on procedural safeguards more effectively focuses judicial scrutiny on the material issue, whether the administrative agency is sufficiently guided to prevent arbitrary or unreasoned decisions by it, while keeping in mind the needs of the Legislature in dealing with the complex issues which arise. This combined approach of considering both standards and safeguards has been strongly urged by Professor Kenneth Culp Davis in his Administrative Law Treatise wherein he states: |
[43] | What is needed is not simply a substitution of a requirement of safeguards for a requirement of standards but a consideration of both safeguards and standards in order to determine whether the total protection against arbitrary power is adequate. *fn8 |
[44] | ( 2.06, at p. 41). |
[45] | Applying these principles to this case and focusing on the dual protection against arbitrariness (standards and safeguards), we conclude that La. R.S. 40:1471.1 - 1471.22 properly delegate authority to the Secretary of Public Safety to "make, promulgate and enforce regulations" covering explosives. |
[46] | The Legislation, as a whole, pronounces the Legislative policy determination favoring the protection of the public as well as those handling and using explosives from any danger derived from the handling, manufacture or transportation of explosives. More specifically, La. R.S. 40:1471. *fn9 directs that the regulations set forth "minimum general standards covering manufacture, transportation (including loading and unloading), use, sale, handling and storage of explosives... as are reasonably necessary for the protection of the health, welfare and safety of the public and persons possessing, handling and using such material and shall be in substantial conformity with generally accepted standards of safety concerning such subject matters." It further expressly provides "that regulations in substantial conformity with the published rules and standards of the Institute of Makers of Explosives in relation to said subject matters shall be deemed to be in substantial conformity with accepted standards of safety." |
[47] | Other guiding standards are found throughout the 22 statutes. Therein, the term "explosives" is precisely defined, including blasting agents and detonators. Licensing requirements are provided, as well as notification requirements and disposal regulations. |
[48] | With regard to procedural safeguards, La. R.S. 40:1471.9 directs that the "regulations shall be adopted by the Secretary of Public Safety only after a public hearing thereon pursuant to Notice previously given to persons he shall deem interested therein." La. R.S. 40:1471. *fn10 further provides that "[a]ll procedures with regard to the promulgation of rules and regulations pursuant to this Part, and the revocation, suspension or denial of licenses and permits, shall be in accordance with the Louisiana administrative procedures act." |
[49] | The Administrative Procedures Act, La. R.S. 49:951 - 970, consists of 21 statutes regulating the procedures administrative agencies must follow in adopting, amending or repealing any regulations. Included therein are detailed provisions for notification of any intended action (La. R.S. 49:953); filing requirements and effective dates (La. R.S. 49:954); publication and distribution requirements (La. R.S. 49:954.1); adjudication requirements, including rules for hearings and the compilation of records (La. R.S. 49:955); licensing requirements (La. R.S. 49:961); and provisions for judicial review of agency determinations (La. R.S. 49:962 - 965). |
[50] | Even more pertinent to our determinations in this case, La. R.S. 49:968 was enacted with the declared purpose "to provide a procedure whereby the legislature may review the exercise of rule-making authority, an extension of the legislative lawmaking function, which it has delegated to state agencies." The statute provides that prior to the adoption, amendment or repeal of any regulations the agency must submit a report relative to the proposed rule change to the appropriate standing committees of the legislature. The Department of Public Safety is to report to the House Committee on the Judiciary and the Senate Committee on the Judiciary. La. R.S. 49:968(13). The standing committees then conduct hearings on all proposed rule changes through oversight committees (a majority of the standing committee) with a special view toward determining whether the proposed rule is in conformity with the intent of the enabling legislation, and considering the advisability of the rule change. La. R.S. 49:968. In addition to these review procedures, La. R.S. 49:969 gives the legislature the authority to nullify any rule or regulation by concurrent resolution. The governor, likewise, has veto power over the rules or regulations. La. R.S. 49:970. |
[51] | The procedural safeguards incorporated in La. R.S. 40:1471.1 - 1471.22, coupled with the dictates of the Administrative Procedures Act, which by reference is incorporated in the explosives statutes, provide ample protection against arbitrary action by the Department of Public Safety in adopting the regulations. |
[52] | Therefore, considering the expressed policy and standards along with the enacted procedural safeguards, we conclude that the general contention by defendant, that the regulation, LAC 17-11:14.6, is invalid because the product of an unconstitutional delegation of legislative authority, has no merit. |
[53] | We so conclude, notwithstanding, that La. R.S. 40:1471.18 imposes a penal, not a civil, sanction for violating any of the regulations. Because an administrative agency has aided the legislature in defining a crime for which the legislature in advance has established the penalty, it may well be that we should give more exacting scrutiny to complaints of excessiveness of sentence, or attacks upon the adequacy of the legislature's guiding standards and safeguards accompanying the delegation. The fact that a crime is thus defined, however, does not infect with unconstitutionality an otherwise valid delegation of legislative authority.9 To the contrary, it has long been recognized by this Court as well as by the United States Supreme Court that administrative agencies may be delegated power to issue regulations for violation of which a statute imposes penal sanctions. United States v. Grimaud, supra; State v. Syas, supra. |
[54] | In State v. Syas, the defendant was being prosecuted for violating a regulation, enacted by an administrative agency, for which a statute imposed penal sanctions. Therein, the defendant argued that the delegation to the administrative agency of the authority to enact regulations, the violation of which could result in imprisonment, was for that reason unconstitutional. The Court noted that it was the statute which provided the penalty for violation of the regulation, and held that defendant's argument had no merit. The Court relied on the United States Supreme Court case United States v. Grimaud, supra, in support of its holding. In Grimaud, the Court held: |
[55] | The authority to make administrative rules is not a delegation of legislative power, nor are such rules raised from an administrative to a legislative character because the violation thereof is punished as a public offense. A violation of... [the rules] is made a crime, not by the Secretary, but by Congress. The statute, not the Secretary, fixes the penalty. |
[56] | And, as has been noted, "the Supreme Court's view has not wavered a millemeter during the six decades since Grimaud's case came before it." Professor Walter Gellhorn, Administrative Prescription and Imposition of Penalties, Vol. 1970, Washington University Law Quarterly, 265. |
[57] | It has also been stated by other leading authorities that the fact that the violation of the regulation could result in imprisonment should not change the analysis of whether the delegation of authority was proper or not. For example, it was stated: |
[58] | The argument that the power of creating a crime affects the individual more severely than that of creating civil or administrative liability is of psychological rather than legal nature. If the legislature may delegate power to administrative agencies to fill out the details of a legislative act, the nature of the sanctions should not bar them from doing so. |
[59] | 42 Mich. L. Rev. 51. |
[60] | Therefore, on the showing made in this record, we find defendant's constitutional attack to be without merit, and hold that the trial court erred in quashing the information against the defendant. |
[61] | Decree |
[62] | For the foregoing reasons, we reverse the trial court ruling quashing the indictment against the defendant, and order the case remanded for further proceedings consistent with the views expressed herein. |
[63] | REVERSED; REMANDED. |
[64] | DIXON, C.J. dissents with reasons. |
[65] | WATSON, J. dissents believing that Schwegmann standards have not been met. |
[66] | MINORITY OPINION |
[67] | DIXON, Chief Justice (dissenting) |
[68] | I respectfully dissent. |
[69] | A statute which delegates to the director of public safety the duty of making and enforcing regulations "setting forth minimum general standards covering manufacture, [and] transportion" of explosives, and making the violation of such regulations a felony punishable by a fine of up to $1000 or imprisonment for not less than one year nor more than five years "in the state prison" is an unconstitutional delegation of legislative authority. There is, in this case, no necessity for delegating the legislative power, and the Constitution prohibits it. |
[70] | Article II, La.Const. of 1974 provides: |
[71] | "Section 1. The powers of government of the state are divided into three separate branches: legislative, executive, and judicial. |
[72] | Section 2. Except as otherwise provided by this constitution, no one of these branches, nor any person holding office in one of them, shall exercise power belonging to either of the others." |
[73] | Serious crimes ought to be defined by the legislature. |
[74] | The statute itself does not set forth adequate standards for the regulations.1 First, the director is instructed to make regulations "setting forth minimum general standards." R.S. 40:1471.9 further declares that regulations of the Institute of Makers of Explosives shall be the standards followed by the regulations. |
[75] | There is no indication that the explosive industry is either so rapidly changing, or esoteric, that the legislature could not, more easily than the director of public safety, make the laws, the penalty for the violation of which is a fine or imprisonment at hard labor for not less than one year. |
Opinion Footnotes | |
[76] | *fn1 "That he did on or about the 9th day of February, 1982, violate regulation LAC 17-11:14.6 promulgated under the authority of La. R.S. 40:1471.9, in thst he did operate a conveyance transporting explosives and did leave such vehicle unattended at a time other than when actually making deliveries." |
[77] | *fn2 La. Const. art. V, 5 provides that a case is directly appealable to this Court if a law or ordinance has been declared unconstitutional. |
[78] | *fn3 Because the case was disposed of on a motion to quash the facts have not been litigated. Thus we take the facts from the parties' briefs. |
[79] | *fn4 La. R.S. 40:1471.9 provides: The Secretary of Public Safety shall make, promulgate and enforce regulations setting forth minimum general standards covering manufacture, transportation (including loading and unloading), use, sale, handling and storage of explosives. Said regulations shall be such as are reasonably necessary for the protection of the health, welfare and safety of the public and persons possessing, handling and using such material and shall be in substantial conformity with generally accepted standards of safety concerning such subject matters. It is hereby declared that regulations in substantial conformity with the published rules and standards of the Institute of Makers of Explosives in relation to said subject matters shall be deemed to be in substantial conformity with accepted standards of safety concerning such subject matters. Such regulations shall be adopted by the Secretary of Public Safety only after a public hearing thereon pursuant to notice previously given to persons he shall deem interested therein (emphasis provided). |
[80] | *fn5 This issue was not argued at the hearing on the motion to quash, perhaps because the trial judge found merit in defendant's first argument that the regulation was unconstitutionally vague. However, in the written motion to quash in the district court defendant argued that the bill of information should be quashed because it "fails to charge an offense which is punishable under a valid statute or regulation." Additionally, counsel for the state, in oral argument to this Court, acknowledged that the issue was presented to the trial court. Since we reverse the lower court's decision finding the statute unconstitutionally vague, before remanding for further proceedings we must address this general attack on the legislative scheme. |
[81] | *fn6 For example, Aeronautics Law (La. R.S.2:1 et seq), Environmental Affairs Law (La. R.S. 30:1051 et seq) and Surface Mining and Reclamation Act (La. R.S. 30:901 et seq). |
[82] | *fn7 Professor Kenneth Culp Davis, in his Administrative Law Treatise, points out that courts have often upheld delegations under the "adequate guiding standards" test where there were virtually no expressed standards at all. For example, delegations have been upheld which were guided only by the following standards: "just and reasonable" [Tagg Bros. & Moorhead v. United States, 280 U.S. 420, 50 S.Ct. 220, 74 L.Ed. 524 (1930)], "public interest" [New York Central Securities Corp. v. United States, 287 U.S. 12, 53 S.Ct. 45, 77 L.Ed. 138 (1932)], "public convenience, interest, or necessity" [Federal Radio Commission v. Nelson Bros. Bond & Mortgage Co., 289 U.S. 266, 53 S.Ct. 627, 77 L.Ed. 1166 (1933)], "unfair methods of competition" [Federal Trade Commission v. Gratz, 253 U.S. 421, 40 S.Ct. 527, 64 L.Ed. 993 (1920)], "reasonable variations" [United States v. Shreveport Grain & Elevator Co., 287 U.S. 77, 53 S.Ct. 42, 77 L.Ed. 175 (1932)]. He states that this result was imperative in view of the complexity of today's governmental undertakings. He concludes that a modern regulatory agency would be an impossibility if power could not be delegated with vague or non-explicit standards. Thus, the complexity of the issues has caused a need for the regulatory agencies, which the courts have recognized by upholding the delegations to the agencies. However, they do so by giving lip service to the adequate guiding standards test when in fact no such guiding standards exist. |
[83] | *fn8 Citing with approval the state courts which have made the recognition that procedural safeguards must be considered along with expressed standards in these modern times, Davis made the following observation: State courts are making a good deal of progress toward considering safeguards along with or instead of standards. A representative sample is Adams v. North Carolina Dept. of Natural and Economic Resources, 295 N.C. 683, 249 S.E.2d 402 (1978). The court did not abandon its requirement of standards but it emphasized safeguards: "We thus join the growing trend of authority which recognized that the presence or absence of procedural safeguards is relevant to the broader question of whether a delegation of authority is accompanied by adequate guiding standards." 249 S.E.2d at 411. The whole opinion is an outstanding one. Another court asserts: "Broad grants of legislative powers will be permitted where there are procedural and judicial safeguards against arbitrary, unreasonable or oppressive conduct of the agency." State v. Department of Industry, Labor and Human Relations, 77 Wis.2d 126, 252 N.W.2d 353, 357 (1977). An excellent formulation: "The existence of standards is relevant in assessing the validity of delegation, but the existence of safeguards for those whose interest may be affected is determinative." Meyer v. Lord, 37 Or. App. 59, 586 P.2d 367, 371 (1978). Also: "The criterion for determining the validity of a delegation should be the totality of protection against arbitrariness." Bercot v. Oregon Transportation Commission, 31 Or. App. 449, 570 P.2d 1195, 1197 (1977). "he presence of adequate procedural safeguards to protect against abuse of discretion by those to whom the power is delegated compensates substantially for the want of precise guidelines...: State v. Boynton, 379 A.2d 994 (Me. 1977). |
[84] | *fn9 Under La. R.S. 40:1471.18, the trial judge can impose a penalty ranging from a fine between two hundred fifty dollars and one thousand dollars to imprisonment from a minimum of one year to a maximum of five years, or both fine and imprisonment. In the instant case, defendant is charged with a rather minor violation of the regulations (at least in regard to its consequences) and, if upon remand defendant is tried and convicted presumably he will be sentenced accordingly. However, had the consequence of the violation been more severe, such as death or serious personal injury or significant property damage, the violation would certainly not be viewed as minor, and a more severe sentence would be appropriate. Whether the sentence is excessive, however, presents entirely different considerations from whether the delegation of authority to the administrative agency to enact regulations is constitutional. MINORITY OPINIONFOOTNOTES |
[85] | *fn1 The only section of the statute which refers to the "standards" is 40:1471.9: "The director of public safety shall make, promulgate and enforce regulations setting forth minimum general standards covering manufacture, transportation (including loading and unloading), use, sale, handling and storage of explosives. Said regulations shall be such as are reasonably necessary for the protection of the health, welfare and safety of the public and persons possessing, handling and using such materials, and shall be in substantial conformity with generally accepted standards of safety concerning such subject matters. It is hereby declared that regulations in substantial conformity with the published rules and standards of the Institute of Makers of Explosives in relation to said subject matters shall be deemed to be in substantial conformity with accepted standards of safety concerning such subject matters. Such regulations shall be adopted by the director of public safety only after a public hearing thereon pursuant to notice previously given to persons he shall deem interested therein." |
The Climate Change and Public Health Law Site
The Best on the WWW Since 1995!
Copyright as to non-public domain materials
See DR-KATE.COM for home hurricane and disaster preparation
See WWW.EPR-ART.COM for photography of southern Louisiana and Hurricane Katrina
Professor Edward P. Richards, III, JD, MPH - Webmaster
Provide Website Feedback - https://www.lsu.edu/feedback
Privacy Statement - https://www.lsu.edu/privacy
Accessibility Statement - https://www.lsu.edu/accessibility