holding that a rule made by the conservation department was unconstitutional because the rule accomplished results which could only be enacted by the Legislature
How later courts described this case
- holding that a rule made by the conservation department was unconstitutional because the rule accomplished results which could only be enacted by the Legislature
Written by the judges who cited it.
The opinion
On Rehearing.
The difference between the power to pass a law and the power to adopt rules and regulations to carry into effect a law already passed by the legislature is obvious. We regard, as the legislature itself has regarded, the prohibition of the sale of fish, foreign or domestic, a subject of law and not a subject of a regulation to carry some previously enacted law into effect. There is no absolute, universal formula for determining in all cases the powers which must be exercised by the legislative body itself and those which may be delegated by the legislature to some administrative agency. It is, however, significant, we think, that the legislature itself prohibited the sale of bass taken without the State. This was not left by the legislature to rules or regulations promulgated by an administrative agency. The legislative prohibition was limited to bass and does not apply to bream and crappie. Acts 1935, page 1110, Code 1940, Tit. 8, § 63. This seems to indicate two things, namely: (1) A legislative recognition that legislation is necessary to prohibit the sale of fish. (2) A legislative intent not to prohibit the sale of bream and crappie .in waters without the State and a like intent not to authorize that to be done by an administrative agency.
In the statute cited, the legislature was dealing with fish. We are reluctant to believe that the legislature would have prohibited the sale of bass and not prohibit the sale of bream and crappie when the subject of fish was being dealt with, had the legislature intended for the sale of bream and crappie taken in waters without the State to be prohibited.
We have not overlooked Skrmetta v. Alabama Oyster Commission, 232 Ala. 371 , 168 So. 168 , emphasized by the Attorney General in brief on rehearing. We did not comment on that because the distinction bet.Ween that case and the case at bar is obvious. In the Skrmetta case, the court was concerned with the act of. a public corporation created by statute, in regulating the manner of taking public property, the State’s absolute property in and to the oysters and oyster beds being established, if not conceded, for private use.
In the case at bar the fish involved were Vaughan’s (appellee) property. The State of Alabama never acquired any property in them. The fish were lawfully acquired in Florida and lawfully brought into Alabama. They were legitimate articles of interstate commerce and private property. This case involved no attempt to regulate the method of taking the State’s property from the State’s holdings as was the case in Skrmetta case.
There being no absolute and universal formula for determining in all cases the power which must be exercised by the legislative body itself, each case must be controlled by the application of the general principle to a given situation.
We are of the opinion that Schechter Corp. v. United States, 295 U.S. 495 , 55 S.Ct. 837 , 79 L.Ed. 1570 , 97 A.L.R. 947 , and Panama Refining Co. v. Ryan, 293 U. S. 388 , 55 S.Ct. 241 , 79 L.Ed. 446 , when read understanding^ in connection with the Skrmetta case, supra, forces us to the conclusion that the judgment appealed from should be affirmed, “to the end that it may be a government of laws and not of men.” Alabama Constitution 1901, Section 43.
Opinion corrected, and extended. The application for rehearing is overruled.