Cole v. Manning

125 S.E.2d 621, 240 S.C. 260, 1962 S.C. LEXIS 96

• Court: Supreme Court of South Carolina
• Decided: May 3, 1962
• Docket: 17909
• Status: Published

Opinions

Legge, Acting Associate Justice.

At the September, 1961, term of the Court of General Sessions for Richland County, a true bill was returned upon an indictment charging Truman Vincent Cole, Jimmy Don Rustin and Louis P. Cooper: (1) with conspiracy to violate Section 55-14 of the 1952 Code (Supplement) by furnishing to prisoners in the State Penitentiary ten thousand (10,-000) tablets of amphetamine, a drug that had been declared contraband by the Director of Prisons; (2) with having furnished and delivered the said drug tablets to said prisoners, in violation of Section 55-14; and (3) with unlawful possession, sale and distribution of said drug tablets. The case was thereafter transferred to the Richland County Court; and on September 18, 1961, Cole, Rustin and Cooper, who were represented by counsel, entered pleas of guilty to the conspiracy charge and were sentenced to imprisonment, —Cole and Cooper for two years, Rustin for one year. Thereafter upon their petition the Honorable John Grimball, Judge of the Fifth Judicial Circuit, issued a writ of habeas corpus to determine the legality of their confinement; and the matter was heard by him on September 30, 1961, the petitioners being again represented by counsel. On October 7, 1961, Judge Grimball issued his order holding the petitioners5 confinement legal and denying their prayer for release. From that order they appeal, charging that their sentences were illegal and void because Section 55-14: (1) is an unlawful delegation of legislative authority to an administrative officer; and (2) did not have the effect of law because the rule or regulation of the Director of Prisons purporting to forbid the furnishing of amphetamine to prisoners, and declaring it contraband, had not been certified and filed in the office of the Secretary of State as required by Section 1-11 of the Code.

The Act of May 24, 1960 (51 Stat. at L. 1917) established, as an administrative agency of the state government, a Department of Corrections, to implement and carry out the policy of the state with respect to its prison system. It declared, in Section 1, the legislative policy to operate, through the Department, a modern prison system, to the end, among others, “that those convicted of violating the law and sentenced to a term in the State Penitentiary shall have humane treatment, and be given opportunity, encouragement and training in the matter of reformation”. It created, as the governing body of the Department, a State Board of Corrections composed of the Governor of South Carolina ex officio, and one member to be appointed by him from each of the state’s six congressional districts. It provided for the employment by the Board of a Director of the prison system, with authority to manage the affairs of the system in accordance with the Board’s policies and subject to its control and supervision. Section 17 of the Act, now appearing in the current cumulative supplement to the 1952 Code of Laws as Section 55-14, reads as follows:

“It shall be unlawful for any person to furnish any prisoner under the jurisdiction of the Department of Corrections with any matter declared by the Director of the prison system to be contraband. Matters considered contraband within the meaning of this section shall- be those matters determined to be such by the Director and published by him in a conspicuous place available to visitors at each correctional institution. The violation of the provisions of this section shall constitute a felony and anyone convicted thereof shall be punished by a fine of not less than one thousand dollars nor more than ten thousand dollars,- or imprisonment for not less than one year nor more than ten-years, or both.”

Section 1-11 of the 1952 Code provides, that “rules arid regulations-adopted under, authority Of a general and, permanent law of the State shall become effective only after they have been properly certified and filed in the office of the Secretary of State.”

At the hearing before Judge Grimball counsel for the petitioners and for the respondent stipulated:

1. That the notice required by Section 55-14 was at the time of the commission of the offense, and had been for at least six months prior thereto, published by the Director in a conspicuous place available to visitors at the penitentiary;

2. That the said notice so published declared amphetamine tablets contraband; and

3. That the said notice was not filed with the Secretary' of State at the time of the commission of the offense.

In support of their contention that Section 55-14 unlawfully delegates legislative power to the Director of Prisons, appellants urge that it provides no standard by which the Director is to be guided in determining what things he may declare contraband and forbid to the furnished to the prisoners, and that the matter is thus left to his absolute, unregulated and undefined discretion.

It is elementary that the legislature may not delegate to an administrative agency its power to make laws. But no violence is done to the principle of separation of governmental powers when a law, complete in itself, declaring a legislative policy and establishing primary standards for carrying it out, or, with proper regard for the protection of the public interest and with such degree of certainty as the case permits, laying down an intelligible principle to which the administrative agency must conform, delegates to the agency the power to prescribe regulations for the administration and enforcement of that law within its expressed general purpose. Davis v. Query, 209 S. C. 41, 39 S. E. (2d) 117; State ex rel. Roddey v. Byrnes, 219 S. C. 485, 66 S. E. (2d) 33; State v. Taylor, 223 S. C. 526, 77 S. E. (2d) 195; South Carolina State Highway Department v. Harbin, 226 S. C. 585, 86 S. E. (2d) 466; City of Darlington v. Stanley, 239 S. C. 139, 122 S. E. (2d) 207.

As pointed out in the Davis and Harbin cases, supra, the difficulty that confronts the court when a lelegated power is challenged lies not in the formulation of principles that should govern the decision, but in their application to the facts and circumstances of the particular case at hand. For it is apparent, from consideration of the numerous cases on the subject, that the degree of authority that may lawfully be delegated to an administrative agency must in large measure depend upon such circumstances, including the legislative policy as declared in the statute, the objective to be accomplished, and the nature of the agency’s field of operation.

“It is well settled that it is not always necessary that statutes and ordinances prescribe a specific rule of action. On the other hand, some situations require the vesting of some discretion in public officials, as, for instance, where it is difficult or impracticable to lay down a definite, comprehensive rule or the discretion relates to the administration of a police regulation and is necessary to protect the public morals, health, safety and general welfare.” 11 Am. Jur., Constitutional Law, Section 234, at page 948.

A question substantially similar to that with which we are here concerned arose in State v. Morgan (La. 1959), 238 La. 829, 116 So. (2d) 682. There the Louisiana statute, challenged as an unlawful delegation of legislative power, made it a crime to introduce into or upon the grounds of any correctional or penal institution certain articles declared by the statute to be contraband, “except through regular channels as authorised by the officer in charge” of such institution. (Italics added.) The court, citing the “modern tendency to be more liberal in permitting grants of discretion to administrative boards or officers in order to facilitate the administration of laws as the complexity of economic and governmental conditions increases”, 11 Am. Jur., Constitutional Law, Section 234, at page 949, upheld the statute as a proper delegation of discretionary administrative authority in, furtherance of the legislative purpose.

In United States v. Ruckman (D.C.W. Va. 1959), 169 F. Supp. 160, similar attack was made upon the Federal statute, 18 U. S. C. A. § 1791, which provided that “whoever, contrary to any rule or regulation promulgated by the Attorney General, introduces or attempts to introduce into or upon the grounds of any Federal penal or correctional institution or takes or attempts to take or send therefrom anything whatsoever, shall be imprisoned not more than ten years”, under which statute the Attorney General had promulgated a regulation reading:

“The introduction or attempt to introduce into or upon the grounds of any Federal penal or correctional institution or the taking or attempt to take or send therefrom anything whatsoever without the knowledge and consent of the Warden or Superintendent of such Federal penal or correctional institution is prohibited.”

Holding the statute constitutional and the regulation issued pursuant thereto a reasonable one to enable the men in charge of the penal institutions to know what was coming into or going out of their prisons, the court quoted from United States v. Grimaud (1910), 220 U. S. 506, 31 S. Ct. 480, 55 L. Ed. 563, as follows:

“That ‘Congress cannot delegate legislative power is a principle universally recognized as vital to the integrity and maintenance of the system of government ordained by the Constitution.” Marshall Field & Co. v. Clark, 143 U. S. [649] 692, 12 S. Ct. 495, 36 L. Ed. 294. But 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.”

Applying the foregoing principles to the situation here, we are of opinion' that the Act in question giving to the Director of Prisons authority to determine what things should and what things should not be permitted to be furnished to the prisoners in his charge was not a delegation to him of legislative power, did not vest him with arbitrary discretion, and was a proper delegation to him of the power, in the exercise of a reasonable discretion, to make administrative regulations in that regard appropriate to effectuate the legislative purpose, which in essence was and is the maintenance of a modern prison system with humane treatment of prisoners, attention to their welfare, and assistance toward their rehabilitation.

We are not unmindful of the rule that in passing upon the constitutionality of a statute challenged upon the ground that it delegates legislative power to an administrative officer the issue is to be decided not upon the assumption that the officer will use sound judgment in exercising the unregulated discretion with which the statute has invested him, but upon consideration of what things the statute affirmatively permits him to do. South Carolina State Highway Department v. Harbin, supra. But that rule, too, must be interpreted in the light of the situation to which the statute is directed; in our opinion it does not require that the statute here under consideration be stricken down as unconstitutional. As we have before stated, the power delegated to the Director is in our opinion not legislative, but administrative; determination from time to time of what things should be forbidden to be furnished to the prisoners ¿was a matter properly entrusted to his discretion, in the exercise of which he is limited, by the declared legislative intent, to prohibiting those things to be furnished to prisoners which may reasonably be considered detrimental to their welfare or to the proper operation of the prison.

While the courts may not substitute judicial discretion for administrative discretion, and therefore as a general rule will not attempt to interfere with the exercise of discretionary power by a governmental agency, capricious or arbitrary exercise of administrative discretion is of course subject to judicial review. South Carolina Electric & Gas Co. v. South Carolina Public Service Authority, 215 S. C. 193, 54 S. E. (2d) 777; Griggs v. Hodge, 229 S. C. 245, 92 S. E. (2d) 654; Board of Bank Control v. Thomason, 236 S. C. 158, 113 S. E. (2d) 544. In the instan( case we need not determine whether the regulation banning amphetamine was capricious or arbitrary, - since appellants do not ask relief upon that ground; but it may not be amiss to note that long prior to the enactment of the statute here challenged the legislature itself declared it unlawful for any person to “sell, give away, barter, exchange, distribute or possess * * * except on a prescription of a duly licensed physician, dentist or veterinarian * * * amphetamine (benzedrine) or any compound thereof, except that amphetamine (benzedrine) in inhalers may be sold without prescription if * * * denatured so as to make it unfit for internal use.” Code 1952, Section 56-1313(3).

The second ground of appeal is likewise without merit, in our opinion. Section 1-11, requiring regulations to be certified and filed with the Secretary of State, is a general law; the Act of May 24, 1960 (Code Supplement, Section 55-14), prescribing the manner in which the regulation here involved shall be published by the Director of Prisons, is a later and special law. The latter must prevail where there is conflict between them. Gregory v. Rollins, 230 S. C. 269, 95 S. E. (2d) 487.

Affirmed.

Taylor, C. J., and Moss and Lewis, JJ., concur.