dissenting.
I respectfully dissent.
Our constitution vests the legislative power in our state legislature. Me.Const. art. IV, pt. 1, § 1; State v. Butler, 105 Me. 91, 96, 73 A. 560, 562 (1909). Historically, courts had the power to designate certain behavior as criminal through the definition of common law crimes. See, e. g., State v. Bradbury, 136 Me. 347, 349-50, 9 A.2d 657, 658 (1939). That power was called into question in an Opinion of the Justices which quoted United States v. Wiltberger, 18 U.S. (5 Wheat.) 76, 95, 5 L.Ed. 37 (1820), as follows: “[T]he power of punishment is vested in the legislative, not in the judicial *1109department. It is the legislature, not the court, which is to define a crime, and ordain its punishment.” Opinion of the Justices, Me., 278 A.2d 693, 696 (1971). Any question as to the residual power of courts to define common law crimes in this state was eliminated by the adoption of our new Criminal Code. See 17-A M.R.S.A. § 3(1). Thus, the sole agency of government possessing the constitutional power to define criminal conduct in this state is our legislature.
The separation of powers among the various branches of our government is a fundamental concept of our constitutional system. E. g., The Federalist No. 47 (J. Madison). Although this, doctrine is implicit in the federal constitution and in many state constitutions, separation of powers is explicitly mandated by the constitution of this state. Me.Const. art. Ill, §§ 1-2.
In the instant case, we are faced with a legislative delegation to the Public Utilities Commission, empowering that agency to define criminal conduct. We are not concerned with the validity of a delegation of legislative power to define conduct which may be subject to civil remedies; as to such delegations different criteria may be applicable.
In a long line of cases starting with United States v. Grimaud, 220 U.S. 506, 31 S.Ct. 480, 55 L.Ed. 563 (1911), and including McKinley v. United States, 249 U.S. 397, 39 S.Ct. 324, 63 L.Ed. 668 (1919), Panama Refining Co. v. Ryan, 293 U.S. 388, 55 S.Ct. 241, 79 L.Ed. 446 (1935), and Yakus v. United States, 321 U.S. 414, 64 S.Ct. 660, 88 L.Ed. 834- (1944), the United States Supreme Court has recognized that the Congress of the United States may define criminal behavior but leave to an administrative agency the power to fill in the details of the criminal proscription. This principle was also recognized in Hirabayashi v. United States, 320 U.S. 81, 63 S.Ct. 1375, 87 L.Ed. 1774 (1943), where the United States Supreme Court upheld a definition of criminal conduct in executive orders of the President and in proclamations issued pursuant thereto where Congress had before it those specific executive orders and proclamations when authorizing a criminal sanction for their violation. The Court expressly refused to consider the legitimacy of the delegation had the executive action defining the criminal conduct not been specifically approved by Congress. Id. at 103, 63 S.Ct. 1375, 87 L.Ed. 1774.
When we turn to a review of the authority in this state, the law is even clearer. In State v. Boyajian, Me., 344 A.2d 410, 412 (1975), this Court stated:
There can be no doubt that the legislature has power to delegate proscriptive responsibility to administrative agencies. . When a statute is challenged for the limited reason that it lacks adequate standards ... we have found constitutional infirmity where the act gives the agency unlimited power, is without prescribed restraints, and is devoid of criteria as a guide to such agency. (Citations omitted).
The delegation upheld in Boyajian was most explicit. It provided:
The Board of Commissioners of the Profession of Pharmacy, hereinafter in this subchapter called the ‘board,’ may from time to time, after notice and hearing, by regulations, designate as potent medicinal substances any compounds of barbituric acid, amphetamines or any other central nervous system stimulants or depressants, psychic energizers or any other drugs having a tendency to depress or stimulate which are likely to be injurious to health if improperly used .... 22 M.R. S.A. § 2201.
In State v. Boynton, Me., 379 A.2d 994, 995 (1977), we also noted:
As a general rule, the legislative authority must declare the policy or purpose of the law and set up standards or guides to indicate the extent, and prescribe the limits, of the discretion it is delegating.
The delegation upheld in Boynton specifically enumerated the kinds of regulation which might be adopted by a municipality entering into an approved shellfish conservation program. The municipality was granted permission to
*1110enact a municipal ordinance fixing the time when clams, quohogs and mussels may be taken from any or all of the coastal waters and flats within the municipality . . . . The ordinance may provide limitations on the amount of clams, quohogs and mussels which may be taken within the municipality, and may provide that municipal licenses be required for the taking of any such species within the municipality and may determine the qualifications for the license, including residence requirements, and may fix the license fees. The ordinance may provide for the size of soft-shell clams which may be taken from the flats within the municipality. 12 M.R.S.A. § 4252 (repealed, P.L.1977, ch. 661, § 4).
The purpose of this legislation was conservation, and the statutory definition of that term provided further guidance to the municipality. See 12 M.R.S.A. § 3401(5-A) (repealed, P.L.1977, ch. 661, § 4).
Significantly, the delegations in Boyajian and Boynton also contained adequate procedural safeguards to assure against arbitrariness in the exercise of the delegated legislative power. See generally K. Davis, Administrative Law Treatise § 2.00 (Supp. 1970).
When we turn to the delegation here involved, to the extent applicable to this case it provides:
The commission shall have authority to make such rules and regulations as it deems necessary or advisable to promote the safety of the operation of common carriers, contract carriers and interstate carriers over the highways. 35 M.R.S.A. § 1558.
Nowhere does the statute enumerate the kinds of conduct that may be proscribed by the administrative agency. The only standard to restrict arbitrary action by the Commission is the vague standard of “safety.” Nor does the statute contain any procedural protections to assure that the Commission makes findings after appropriate investigation and hearing to justify its conclusion that certain regulations are necessary or advisable to promote safety. Thus, the Public Utilities Commission is by this legislation granted a commission to roam at large and to adopt regulations which may be enforced by criminal penalties without guidance or restriction. In the regulation with which we are here concerned, the Commission has seen fit to impose a minimum age requirement for drivers of motor vehicles operated under the provisions of 35 M.R.S.A. §§ 1551-66. Presumably, the Commission could also adopt a regulation fixing a maximum age, a minimum or maximum height, a minimum or maximum weight, or limiting the race or sex of drivers. To assume that the minimum age requirement is justified by statistics developed in the insurance industry — which it has not been shown were ever considered by the Commission — does nothing to demonstrate the validity of this broad, unfettered delegation of authority. Presumably, insurance industry statistics may also be found that persons of a certain race or of a certain sex or of a certain size have a higher accident rate than do others.
A fundamental problem of governance in our complex society is control of the ever-increasing bureaucracy. To allow administrative agencies unfettered discretion to define criminal conduct undermines the very essence of representative government. If this delegation is upheld, there is nothing to prevent the legislature from adopting a statute that repeals the substantive provisions of our Criminal Code, delegates to the unelected Commissioner of Public Safety the power to promulgate regulations which in his opinion he deems necessary or advisable to promote the public health, safety, welfare and morals, and provides that violation of such regulations shall be punished by criminal sanctions. There could be no greater threat to democracy and liberty.
Because the purported delegation of legislative authority to the Public Utilities Commission to define criminal conduct is invalid, its regulation may not be enforced by a criminal penalty. The judgment of conviction should be set aside and the Superior Court directed to enter a judgment of acquittal.