dissenting.
I am unpersuaded by the majority’s reading of State ex rel Lanier v. Vines. The majority interprets Lanier to prohibit, in all cases, agency imposition of “a civil penalty whose amount varies with any agency discretion. . . .” (Emphasis supplied.)
Article IV, Sec. 3 of the North Carolina Constitution contemplates that discretionary judicial authority may be granted to an agency when reasonably necessary to accomplish the agency’s purposes. Although couched in the negative, the same conclusion was reached by our Supreme Court in Lanier.
. . . With or without standards to guide the administrative discretion, the Legislature cannot confer upon an administrative officer judicial power, except within the limits specified in Art. IV, Sec. 3, of the Constitution. . . . The Legislature . . . has undertaken to vest [the] judicial power *19[to determine the penalty amount within the range established by statute] in an administrative officer. Under Art. IV, Secs. 1 and 3, of the North Carolina Constitution, . . . the Legislature may do this, if, but only if, conferring this segment of the judicial power of the State upon the [agency] is “reasonably necessary as an incident to the accomplishment of the purposes for which” the [agency] was created.
274 N.C. 486, 496-97, 164 S.E. 2d 161, 167 (1968) (emphasis added) (quoting N.C. Const. Art. IV, Sec. 3). Although the court held that the power of license revocation was “ ‘reasonably necessary’ to the effective policing” of the statute, it further held that there was “no reasonable necessity for conferring upon the [agency] the judicial power to impose ... a monetary penalty, varying, in the [agency’s] discretion, from a nominal sum to $25,000 for each violation.” Id. at 497, 164 S.E. 2d at 167-68.
Lanier did not hold that agency exercise of the judicial power to impose a varying penalty offends our Constitution in all circumstances. Instead, the court held that that power was not, upon the facts before it, “reasonably necessary.” Lanier established that whether our Constitution permits a particular grant of judicial authority should be determined case-by-case:
Whether a judicial power is “reasonably necessary as an incident to the accomplishment of the purposes for which” an administrative office or agency was created must be determined in each instance in the light of the purpose for which the agency was established and in the light of the nature and extent of the judicial power undertaken to be conferred.
Id. at 497, 164 S.E. 2d at 168 (emphasis added) (quoting N.C. Const. Art. IV, Sec. 3).
I believe that the Department’s power to impose civil penalties for violation of the Sedimentation Control Act is reasonably necessary, (1) “in the light of the purpose for which the agency was established” — in part to promote development of natural resources while limiting detrimental effects from erosion and sedimentation pollution, and (2) “in the light of the nature and extent of the judicial power undertaken to be conferred” —here, to impose civil penalties legislatively confined to a maximum of $100 for each violation of the Act.
*20Mechanical application of the Lanier result ignores the progress made in the way the role of administrative agencies is regarded. As our Supreme Court stated in State ex rel. Comm’r of Ins. v. North Carolina Rate Bureau,
Clearly, . . . we must expect the Legislature to legislate only so far as is reasonable and practical to do and we must leave to [the agency] the authority to accomplish the legislative purpose, guided of course by proper standards. . . . The modern tendency is to be more liberal in permitting grants of discretion to administrative agencies in order to ease the administration of laws as the complexity of economic and governmental conditions increases. . . . North Carolina cases have long been consistent with this “modern tendency.”
300 N.C. 381, 402, 269 S.E. 2d 547, 563 (1980), reh’g denied, 301 N.C. 107, 273 S.E. 2d 300 (1980) (emphasis added) (citations omitted). And in Adams v. North Carolina Dep’t of Natural and Economic Resources, the court stated that transfers of “adjudicative and rule-making powers to administrative bodies [are not constitutionally precluded] provided such transfers are accompanied by adequate guiding standards to govern the exercise of the delegated powers.” 295 N.C. 683, 697, 249 S.E. 2d 402, 410 (1978) (emphasis added) (citations omitted).
In the case before us, sufficient guiding standards exist in the statute to check administrative discretion. Explicit “mandatory standards” are articulated in N.C. Gen. Stat. Sec. 113A-57, providing specific guidance to the Department in its determination whether violations of the Act have occurred. Administrative discretion is further limited by the minimal penalty the Department may impose for violations.
Finally, I cannot support the majority’s choice to decline to follow our recent construction of Lanier in North Carolina Private Protective Services Board v. Gray, Inc., 87 N.C. App. 143, 360 S.E. 2d 135 (1987). There we interpreted Lanier to permit an agency, pursuant to statute, to assess a civil penalty up' to $2,000 in lieu of license revocation. We stated then, and I still agree, that
. . . Lanier [does not] mean that all administrative civil penalties are per se in violation of the State Constitution. *21. . . Rather, the granting of the judicial power to assess a civil penalty must be “reasonably necessary” to the purposes for which the agency was created and with appropriate guidelines for the exercise of the discretion.
287 N.C. App. at 146, 360 S.E. 2d at 137. By its holding, the majority unjustifiably overrules North Carolina Private Protective Services Board. I maintain that that case was correctly decided and should have governed the court’s decision in the case before us.
For the reasons above, I respectfully dissent.