(dissenting).
It is with reluctance and regret that I dissent in this case, but I am firmly convinced that the statutory provision under attack here is clearly an unconstitutional delegation of legislative power. With all due respect to the majority opinion, I am unconvinced that the authorities therein cited support the conclusions and the result reached.
*269The case of South Carolina Highway Department v. Harbin, 226 S. C. 585, 86 S. E. (2d) 466, strongly and clearly indicates to my mind that the decision of the lower court herein should be reversed. The opinion in that case contains an excellent discussion of the constitutional principles which are here applicable. As there pointed out, while the legislature may not delegate its power to make laws, in enacting a law complete in itself it may authorize an administrative agency or board “to fill in the details” by prescribing rules and regulations for the complete operation and enforcement of the law within its express general purposes.
That decision, however, recognizes and points out with clarity certain basic principles which must govern a decision as to whether a statutory provision is an unconstitutional delegation of legislative power. Cardinal principles involved are:
1. In order for the delegation of power to be held constitutional :
a. The law must be complete in itself with only details to be filled in by the administrative agency;
b. A statute must declare legislative policy, establish primary standards for carrying it out, or -lay down an intelligible principle to which the administrative officer or body must conform with a proper regard for the protection of the public interest and with such degree of certainty as the nature of the case permits.
2. That the court should take into consideration the things which the act affirmatively permits and not what action an administrative officer may or may not take, and the presumption that an officer will not act arbitrarily but will exercise sound judgment and good faith cannot sustain a delegation of unregulated discretion.
In recognition of these cardinal principles this court held that a statutory provision which gave to the Highway Department the broad authority to suspend or revoke a driver’s license for any cause it deemed satisfactory was an uncon*270stitutional delegation of legislative power. If the legislature could not delegate to the Highway Department the discretionary power to revoke a license to operate a motor vehicle, which is not a property right but a mere privilege, it seems abundantly clear to me that the legislature cannot constitutionally delegate to the director of the prison system the discretionary power to determine what course of conduct may subject one to a felony conviction and imprisonment for as much as ten years.
As pointed out in the majority opinion, Section 55-14 of the 1952 Code of Laws, here involved, was Section 17 of the Act of May 24, 1960 (51 Stat. at L. 1917) which established a Department of Corrections. Section 1 of that Act sets forth the legislative policy, a part of that policy being as follows:
“that those * * * sentenced to a term in the State Penitentiary shall have humane treatment, and be given opportunity, encouragement and training in the matter of reformation.”
That is the only statement of policy contained in the entire Act which has any possible bearing on the section under discussion. Various sections of the Act spell out in detail the powers and duties of, and establish primary standards to be followed by, the director of the prison system with respect to other matters. But, with respect to the above quoted policy statement, the only further reference thereto contained in the Act is set forth in Section 10, in the following language :
“The Director, with the consent of the State Board of Corrections, shall have power to prescribe reasonable rules and regulations governing the humane treatment, training and discipline of prisoners.” (Emphasis added.)
Thus, it is seen that with respect to the humane treatment, training, etc. of the prisoners, the director has the power to prescribe reasonable rules and regulations only with the consent of the Board of Corrections, but, as it *271seems to me, rather anomalously, when it comes to a matter involving the public at large, and the determination of what persons are guilty of a felony and subject to punishment by ten years imprisonment, the director, by the terms of Section 17 (Code Sec. 55-14) is not even required to be reasonable; nor does he have to have even the consent of the State Board of Corrections.
Nowhere in the Act is the word “contraband” defined, and within the four corners of the Act there is a total absence of,any standards to govern the director in the exercise of his untrammeled discretion. The language of the statute strips even the word “contraband” of any usual, legal connotation as it only makes it unlawful to furnish “matter declared by the director to be contraband.”
By way of comparison, the motor vehicle license act under attack in the Harbin case, supra, contained a great deal more in the way of standards for the guidance of the Highway Department in the exercise of the discretionary power attempted to be granted to it than does the Act here.
In my view, the Harbin case is here controlling, but if we needed to consult persuasive authority, I do not think that the cases of State v. Morgan (La. 1959), 238 La. 829, 116 So. (2d) 682, and U. S. v. Ruckman (D. C. W. Va. 1959), 169 F. Supp. 160, cited in the majority opinion, actually support the result reached. I consider that both of those cases are clearly distinguishable by the language of the statutes involved. The Louisiana statute in the Morgan case named the articles which were declared to be contraband and made it a crime to introduce the named articles “except through regular channels as authorized by the officer in charge” (LSA-R.S. 14:402) of such institutions. The opinion of the court in that case clearly recognized the distinction in the following language:
“The act itself prohibits the introduction and removal of contraband in all cases except where it is done through regular channels and with authority of the officer in charge. If *272the authority of the officer is granted there is no crime. If the authority is not granted, the legislature itself has made the act a crime.”
Likewise, the basis of the decision of the court in U. S. v. Ruckman, supra, is concisely stated in the following quotation therefrom:
“Congress laid down the broad policy which prohibits the attempt to introduce anything into prisons, and then authorized the executive officer in charge of prisons to exercise a certain amount of discretion within the limits of that policy.”
In brief, the gravamen of the crime in both the Louisiana statute and the Federal statute is clearly embraced and specified within the terms of the respective statutes. In the case of the Louisiana statute, the gravamen of the crime was the introduction of any one of certain named things without permission, and under the Federal statute, the gravamen of the crime is the introduction of any thing unless permitted under the rules and regulations of the executive officer in charge of prisons.
Quite to the contrary, under the statute here involved, the gravamen of the crime is not created by the legislature and cannot be ascertained by reading the statute. The actual crime is created by the decisions of the director in his untrammeled discretion. The public at large can determine the crime attempted to be created only by consulting the director or his list, which conceivably could change from day to day or week to week.
With reference to the quotations in the majority opinion from 11 Am. Jur., Constitutional Law, Section 234, pages 948 and 949, I do not consider these quotations to be here applicable, and I regard the reading of the entire section to be indicative of their inapplicability. Immediately following the first quotation contained in the majority opinion is the following sentence: “This rule and various applications and modifications arise most often in those cases dealing with licenses.” Following the second quotation and in the foot*273notes in connection therewith, reference is made to cases involving a tax statute; a statute fixing units of weight for loaves of bread; and cases involving “blue sky laws” and the powers granted thereunder to security commissioners.
Much more apropos of the situation here is the following quotation from 42 Am. Jur., Public Administrative Law, Sec. 45, page 342:
“Range of Discretion; Standards — It is a fundamental principle of our system of government that the rights of men are to be determined by the law itself, and not by the let or leave of administrative officers or bureaus. This principle ought not to be surrendered for convenience, or in effect nullified for the sake of expediency.”
In conclusion, it appears to me that the statutory provision here under attack is not complete law in itself, and lays down no primary standards for carrying it out. We are not here concerned with the exercise of sound judgment by the director, but are concerned with the fact that the act affirmatively leaves the determination of the gravamen of the crime to the sole, unregulated discretion of the director.
No good reason appears why the legislature in attempting to create a crime of such gravity could not have either named the articles declared to be contraband, or at least laid down a definite or comprehensive rule by which the determination of contraband articles could be made. We are not here dealing with any complex tax, financial or economic problem, or a matter of granting licenses, where it is either difficult or impractical for the legislature to lay down a definite or comprehensive rule to be followed by the administrative agency or officer.