(dissenting).
I must dissent. Although the conclusion reached by the majority may be desirable from the standpoint of the “practical necessities of government,” it transcends the Constitution of the State of Alaska and is contrary to the great weight of authority.
The rule has been firmly established in law that there is an unconstitutional delegation of legislative power where a statute authorizes an administrative body or agency to provide regulations which attach penalties for violations of such, where the statute has not declared a policy or standard to guide the agency while acting under such delegation. Panama Refining Co. v. Ryan, 293 U.S. 388, 55 S.Ct. 241, 79 L.Ed. 446; Schechter Poultry Corp. v. United States, 295 U.S. 495, 55 S.Ct. 837, 79 L.Ed. 1570.
This principle has been followed by the Supreme Court of the United States with regard to the legislative power vested in Congress by the Constitution of the United States, and by the Supreme Courts of many states regarding such power vested in state legislatures by state constitutions, in decisions of such courts too numerous to mention, continuing through the year 1959. These decisions recognize the flexibility and practicality in establishing standards while leaving to the agency the making of subordinate rules within prescribed limits as to the determination of facts, or where 'the acts delegated are administrative only in character, or where the details are within the expert knowledge of the board. United States v. Grimaud, 220 U.S. 506, 31 S.Ct. 480, 55 L.Ed. 563; American Trucking Associations, Inc. v. United States, 344 U.S. 298, 73 S.Ct. 307, 97 L.Ed. 337; Lichter v. United States, 334 U.S. 742, 68 S.Ct. 1294, 92 L.Ed. 1694; Yakus v. United States, 321 U.S. 414, 64 S.Ct. 660, 88 L.Ed. 834; Panama Refining Co. v. Ryan, supra; Coady v. Leonard, 132 Ohio St. 329, 7 N.E. 2d 649; State v. Local No. 8-6, Oil, Chemical & Atomic Workers, Mo., 317 S.W.2d 309; Sepe v. Daneker, 76 R.I. 160, 68 A.2d 101; Board of Regents of University of Nebraska v. County of Lancaster, 154 Neb. 398, 48 N.W.2d 221. As stated in the opinion of the court in the Panama Refining Co. case, 293 U.S. at page 421, 55 S.Ct. at page 248:
“ * .* * The Constitution has never been regarded as denying to the Congress the necessary resources of flexibility and practicality, which will enable it to perform its function in laying down policies and establishing standards, while leaving to selected instrumentalities the making of subordinate rules within prescribed limits and the determination of facts to which the policy as declared by the Legislature is to apply * * *.”
A distinction is made, however, between the delegation of power to make criminal offenses of acts not before made criminal, or devising new rules of law, which cannot be delegated, and those statutes conferring only supervisory control. Fahey v. Mallonee, 332 U.S. 245, 67 S.Ct. 1552, 91 L. Ed. 2030; Kentucky Alcoholic Beverage Control Board v. Klein, 301 Ky. 757, 192 *592S.W.2d 735; Casey v. People, Colo.1959, 336 P.2d 308; People v. Yonker, 351 Ill. 139, 184 N.E. 228; General Motors Corp. v. Blevins, D.C.Colo., 144 F.Supp. 381, 396; or, between “substantive legislation” beyond the limitations prescribed by the act, and those conferring administrative powers. Adolph Coors Co. v. Corbett, Cal.App., 123 P.2d 74; Senior Citizens League v. Dept. of Social Securities, 38 Wash.2d 142, 228 P.2d 478. In this connection it matters not that the statute fixes the penalty; it is the regulation which defines the offense.
In matters of public health, morals and safety, the rule has been somewhat relaxed as to the discretion granted where it is impracticable to fix specific standards without destroying flexibility necessary to carry out the purpose of the act. Pressman v. Barnes, 209 Md. 544, 121 A.2d 816; Blackman v. Board of Liquor Control, 95 Ohio App. 177, 113 N.E.2d 893. However, in the Pressman case the regulation considered was administrative in character, and in the Blackman case, relating to fixing minimum price for the sale of wine by the board, the statute specifically authorized the board to fix such prices.
It has also been held that in matters of liquor control, the sale of intoxicating liquors under licenses being considered a privilege, rigid standards otherwise required should not be prescribed, but there must be found "a reasonably clear formula by which the grant of power may be governed,” rather than an unlimited discretion vested in the board. Darling Apartment Co. v. Springer, 25 Del. 420, 22 A.2d 397, 137 A.L.R. 803; Pompei Winery, Inc. v. Board of Liquor Control, 167 Ohio St. 61, 146 N.E.2d 430; Duff v. Trenton Beverage Co., 4 N.J. 595, 73 A.2d 578; Allied Properties v. Board of Equalization, Cal.App., 1959, 338 P.2d 1013.1 Somewhat to the contrary is Ackerman v. Kogut, 117 Vt. 40, 84 A.2d 131, which holds that “definite” rules of action are not required.
The statute here considered does not come within any of these exceptions, for, as noted by the majority, “ * * * it is true that the act contains no standards expressed as such.” Nor can we find any comfort in the fact that the act authorizes the board to issue, revoke or suspend liquor licenses “in the best interests of the public” [Section 35-4-3(B), A.C.L.A.Supp., as amended], for there is no question as to the discretion which may be vested in such a board with regard to licensing provisions as distinguished from making rules of law. United States v. Storer Broadcasting Co., 351 U.S. 192, 76 S.Ct. 763, 100 L.Ed. 1081; Randles v. Washington State Liquor Control Board, 33 Wash.2d 688, 206 P.2d 1209, 9 A.L.R.2d 531; Yarbrough v. Montoya, 54 N.M. 91, 214 P.2d 769; State ex rel. Billado v. Wheelock, 114 Vt. 350, 45 A.2d 430.
The power of the legislature to regulate and control the traffic in intoxicating liquors is not questioned, but the delegation to the board of “full power, authority and control over the manufacture, barter, sale and possession of intoxicating liquors”2 is an invalid delegation of legislative power, without limitation or standards. State v. Marana Plantations, Inc., 75 Ariz. 111, 252 P.2d 87. As is otherwise stated, while the delegation of governmental authority to an administrative body is proper in some instances, the delegation of absolute legislative discretion is not, as there must be some “ascertainable standard.” State Board of Dry Cleaners v. Thrift-D-Lux Cleaners, 40 Cal.2d 436, 254 P.2d 29. Or, when the legislature has declared a general policy and “fixed limits” within which the law shall operate, it may delegate to an administrative agency the power to carry out such policy or purpose. State ex rel. Wisconsin Inspection Bureau v. Whitman, *593196 Wis. 472, 220 N.W. 929. As otherwise stated by the Circuit Court of Appeals for the Ninth Circuit, the test is whether the standards provided by the act are “adequate for the judicial review.” Alaska Steamship Co. v. Mullaney, 9 Cir., 180 F. 2d 805, 822.
Extensive research reveals but two state decisions upholding the power of a liquor control board to adopt closing hours of licensees under a general delegation of power to “regulate and control” the traffic in liquor; State ex rel. Thornbury v. Gregory, 191 Wash. 70, 70 P.2d 788, and Griffin v. Gass, 133 Neb. 56, 274 N.W. 193. These decisions are not followed upon this point in any cited case. Wholly contrary is the decision of People v. Ryan, 267 N.Y. 133, 195 N.E. 822, 824, which holds that an attempt to delegate to a state beverage control board the unrestrained volition to adopt a regulation as to closing hours of retail liquor stores, was “so essentially a legislative function as the definition of a substantive criminal offense” as to be “obviously of no effect.” I do not believe that this court should adopt the extreme minority view taken in the Thornbury and Griffin cases.
It is also the position of the majority that the regulation should be approved by reason of the procedural safeguards provided by the Administrative Procedure Act (Ch. 143, S.L.A.1959). It is held that procedural safeguards cannot validate an unconstitutional delegation of legislative power, even though they do furnish protection against an arbitrary use of properly delegated authority. United States v. Rock Royal Co-operative, 307 U.S. 533, 576, 59 S.Ct. 993, 83 L.Ed. 1446. Moreover, the Administrative Procedure Act itself specifies that there shall be standards. Sec. 4, Art. I, Ch. I provides that:
“Each regulation adopted, to be effective, must be within the scope of authority conferred and in accordance with standards prescribed by other provisions of law.”
In my opinion this means just what it says, that there must be such standards prescribed. In fact the legislature has been very careful to do this in other statutes authorizing boards to adopt rules and regulations which may be punished as criminal offenses. For example Fish and Game (Section 6 Art. I Ch. 94, S.L.A. 1959) ; and Health (Sections 40-1-6, 40-2-7, A.C.L.A.Cum.Supp.) There appears no practical reason why the legislature presently convened may not adopt similar required standards with respect to closing hours, limiting such in application.
Finally, this court should not depart at this juncture from established precedent, especially in matters relating to the Constitution of the State, for the separation of legislative and executive powers guaranteed to the people by our Constitution should not be lightly considered.
The declaratory judgment entered by the District Court should be affirmed with respect to the regulation relating to closing hours. As to the other regulations, I concur with the majority opinion that they are not here involved.
. (See also, Dickerson v. Commonwealth, 181 Va. 313, 24 S.E.2d 560, which upholds regulation of Alcoholic Beverage Control Board relating to transportation of liquor as within “specific definite standards” prescribed by the act.)
. [Section 35-4-3(A) A.C.L.A.Supp., as amended]