La Forest v. Board of Commissioners

STEPHENS, Associate Justice.

I dissent. The majority opinion, as I read it, is rested upon Field v. Clark, 143 U.S. 649 , 12 S.Ct. 495 , 36 L.Ed. 294 , and upon the proposition that Section 13(a) of the Traffic Act (D.C.Code Supp. II, 1935, T. 6, § 250(a), providing that:

“Except where for any violation of this Act revocation of the operator’s permit is mandatory, the commissioners or their designated agent may with or without a prior hearing revoke or suspend an operator’s permit for any cause which they or their agent may deem sufficient . . ."

is to be construed to permit a revocation or suspension of operators’ permits only in cases where there is shown to be a breach of the usual and reasonable. regulations made concerning control of traffic, this construction to be reached by reading into Section 13(a) the language of Section 6(a), D.C.Code Supp. II, 1935, T. 6, § 243(a), empowering the Commissioners:

“. . . to make, modify, repeal, and enforce usual and reasonable traffic rules and regulations relating to vehicles, and rules and regulations concerning the control of traffic, the registration of motor vehicles, and the issuance and revocation of operators’ permits; ...”

The majority opinion also takes a distinction in respect of Panama Refining Co. v. Ryan, 293 U.S. 388 , 55 S.Ct. 241 , 79 L.Ed. 446 , and Schechter Poultry Corporation v. United States, 295 U.S. 495 , 55 S.Ct. 837 , 79 L.Ed. 1570 , 97 A.L.R. 947 , and cites, as a further basis for its conclusion, cases from this jurisdiction referred to below.

On its facts Field v. Clark decides nothing, I think, pertinent to the instant situation. It holds that Congress may validly provide for the suspension of an act of Congress upon a contingency to be ascertained by the President, and made known by his proclamation. It is so characterized in Panama Refining Co. v. Ryan, 293 U.S. 388, 424 , 55 S.Ct. 241 , 79 L.Ed. 446 . But Field v. Clark is decided in the light of, and it recognizes, the constitutional principle involved in the instant case, to wit, that Congress cannot constitutionally delegate‘legislative power.

I think it unquestionable that Section 13(a) of the Traffic Act is an unconsti-tional delegation of legislative power to the Commissioners unless it is susceptible of the construction put upon it in the majority opinion. Indeed, I understand that no serious contention is made that the section is valid, unless it is to be so construed. I bear fully in mind the rule that if a questioned provision is reasonably susceptible of two constructions, one of which will permit of sustaining it and the other of which will require it to be held invalid, the construction which will permit of sustaining it must be put upon it. But that rule by its own terms requires that there be something in the statute to construe. If the statute is clear the courts are bound to accept it as written. I am unable to find anything ambiguous in Section *551 13(a) of the Traffic Act, or in Sections 6(a) and 13(a) taken together, which requires any construction of the words of Section 13(a). As I read Section 6(a) it deals with the power of the Commissioners to make, modify, repeal and enforce traffic rules and regulations, including those concerning the issuance and revocation of operators’ permits. The section lacks nothing which Section 13(a) must be read to supply. As I read Section 13(a) it deals, and deals clearly, with an entirely different subject, and is sufficient unto itself. It deals with the revocation of operators’ permits, and provides simply that except where, under the Act, revocation is mandatory, the Commissioners, or their agent, may, with or without a prior hearing, revoke or suspend a permit “for any cause which they or their agent may deem sufficient.” I think it apparent that the Congress armed the Commissioners in Section 6(a) with power to make and enforce regulations by virtue of which operators’ permits might be revoked upon the usual and reasonable grounds pertinent to the control of traffic and, in Section 13(a) invested the Commissioners with a different and much broader authority. If I am correct in the foregoing it is not only unnecessary to construe Section 13(a) but improper, because to construe it is to refuse to accept the intention of the Congress as clearly expressed. I think, therefore, that Section 6(a) cannot properly be read into Section 13(a).

In Section 6(a) the Congress included, in my opinion, a proper standard because the words used therein in their common meaning connote that the regulations made shall be patterned for the public safety and convenience in respect of traffic upon the streets. This I think is a sufficiently definite concept to validate the statute. But the words of Section 13(a), I think, neither" state nor connote any standard except the personal judgment of the Commissioners or their agent. They are given unlimited authority. This is a plain delegation of legislative power. The argument in behalf of the Commissioners that there have been more than 11,000 revocations and suspensions of operators’ permits under the power in question and only five applications for review filed in this court, is an argument that the power has not been abused in the past and, therefore, will not likely be abused in the future. That does not cure the defect in the statute.

I say nothing upon the topic of due process of law because this appeal has been limited to the delegation question alone.

The majority opinion distinguishes Panama Refining Co. v. Ryan, 293 U.S. 388 , 55 S.Ct. 241 , 79 L.Ed. 446 , and Schechter Poultry Corporation v. United States, 295 U.S. 495 , 55 S.Ct. 837 , 79 L.Ed. 1570 , 97 A.L.R. 947 , upon the ground that they:

“. . . involved wholly a controversy as to the distribution of power between the President and Congress or between Congress and administrative officers and commissions, — a controversy ■ affecting the structure of the national government. Here the question is purely local. . . .”

In Panama Refining Co. v. Ryan, supra, the Supreme Court held, as I read the case, that the attempted delegation of power under Section 9(c) of the National Industrial Recovery Act ( 15 U.S.C.A. § 709 (c)—the power to interdict the transportation in interstate and foreign commerce of petroleum produced or withdrawn from storage in excess of amounts permitted by state authority — was void because the power sought to be delegated was legislative power, and nowhere in the statute had Congress declared any policy or standard to guide or limit the President when acting under such delegation. In Schechter Poultry Corporation v. United States, supra, the Supreme Court held, as I read that case, that the code-making authority sought to be conferred by the National Industrial Recovery Act ( 48 Stat. 195 ) was an unconstitutional delegation of legislative power because it gave the President, in approving or prescribing codes, and thus enacting laws for the government of trade and industry, a virtually unfettered discretion, there being neither in Section 1 nor in Section 5 of the Act ( 15 U.S.C.A. §§ 701 , 705), in the view of the Court, a sufficient declaration of a legislative standard. Neither of the cases appears to me to take a distinction, and I know of no distinction taken elsewhere by the Supreme Court, which warrants delegation of legislative authority merely because the agent is a local, as distinguished from a national, officer. As I understand the decisions of the Supreme Court, including the two just referred to, delegation of legislative authority is forbidden by the Constitution whoever the agent may be. The Congress must itself either pass the statute complete, or pass the statute in its essentials leaving to an agent power to fill in the details, or the *552 Congress must declare some policy or standard.

The cases decided by this court which are relied on in the majority opinion, as I read them, deal with the' scope of powers granted the Commissioners, not with the constitutional validity of the statutes granting the powers.