Vail v. Seaborg ( 1922 )

Tolman, J.

(dissenting) — While in hearty sympathy with the purpose sought to be accomplished by the so-called legislation here in question, I cannot concur with the majority. Admitting that food fish in the waters of the state belong to the whole people, and that the legislature has the same power of regulation and control thereof as it has of other state property, yet the fact remains that such power must he exercised in the regular and constitutional way, and can no more he delegated than the power to legislate upon other subjects.

It being conceded by tbe majority that, under all tbe authorities, tbe legislature cannot delegate its power to make tbe law, that question need not now be discussed.

Clearly, in dealing with food fish belonging to tbe state, tbe legislature might have forbidden tbe taking of such fish at all, or during tbe spawning season, for a limited time preceding such season, on or near tbe places of spawning, and fixed any other conditions for tbe perpetuation of tbe supply, and then left to an administrative board tbe duty of determining when tbe spawning season occurs at each particular place, bow long it lasts, and like matters which require study and investigation; but here tbe whole subject-matter is attempted to be placed in tbe bands of an administrative body with full power to legislate on every phase of tbe question. To my mind, this is a clear attempt to delegate legislative power.

It was well said, in effect, by tbe Attorney General in oral argument, that tbe appellant’s contentions would have been forceful twenty years ago, since which time tbe courts have gone far in tbe direction now taken by tbe majority. This is unfortunately true. By reason of tbe supposed good to be accomplished in each particular instance, tbe courts have indeed more and more departed from tbe firm foundation upon which representative government rests, and little by little, insiduously and almost imperceptibly, there has grown up a line of authorities, which, with slight exaggeration, seems to warrant tbe views of tbe majority; and unless a halt be called, by tbe same growth continued representative government will be wholly abolished. Believing that we have already reached tbe extreme limit, I can go no further, and therefore dissent.