(dissenting).
The authority delegated by the legislature to the commissioner of law enforcement as against the rule which was adopted thereunder is the area within which I disagree with the conclusion reached by the majority.
Delegation of rule-making authority to an administrative officer within statutory limitations was approved in State v. Heitz, 72 Idaho 107, 238 P.2d 439 (1951). Therein this court said:
“That the legislature may delegate its authority to make findings of fact, and within limitations set by the legislature, promulgate rules and regulations for the use of the highways, and limitation of load weights on highways prescribed by those authorized by the legislature so to do has been upheld and enforced in practically unanimous decisions of all courts.”
In the case before us the legislature provided for the delegation of rule-making authority in I.C. § 23-1025.
“Certificate as to age — Execution in cases of doubt — Form.—Whenever any person licensed to sell beer, his agent or employee, shall have reasonable cause to doubt that any person who attempts to purchase or otherwise procure beer from or through such retail licensee, his agent or employee, is twenty or more years of age, such retail licensee, his agent or employee, shall require such person to execute a certificate that he or she is twenty or more years of age, and to exhibit acceptable proof of age and identity. The form of such certificate, the manner in which it shall be executed, the record to be kept thereof, the responsibility of the retail licensee, his agent or employee, with respect to the execution of said certificate, and a determination of what shall constitute acceptable proof of age and identity, shall be in accordance with such regulations as the commissioner of law enforcement shall prescribe relating thereto.” (Emphasis supplied)
In adopting Regulation 7-B, the commissioner of law enforcement promulgated the following regulation:
“Every licensee, licensed under the provisions of Title 23, Chapter 10, Idaho Code, his agents, and/or employees, shall require all persons of doubtful age, in respect to his or her legal ability to procure or purchase alcoholic beverages, to present and display an official identification card, as *542provided for and made available through the provisions of Chapter 203, 1961 Idaho Session Laws, and more specifically, Idaho Code 23-1201 through Idaho Code 23-1207. It is further provided, that such means of determining age and identity of persons of doubtful age shall be exclusive of any and all other means or methods of determining such, and any other means or methods used by the licensee, his agents, and/or employees, in making such determination other than the hereinbefore mentioned official identification card provided by law, shall constitute no legal excuse for the sale, serving or dispensing of alcoholic beverages to any person under legal age.” (Emphasis supplied)
Paraphrased, the objectionable language of Regulation 7 — B reads as follows :
“ * * * shall be exclusive of any and all other means or methods of determining such, and any other means * * * shall constitute no legal excuse for the sale, serving or dispensing of alcoholic beverages to any person under legal age.”
The statute authorized the commissioner of law enforcement to provide such regulations as would constitute acceptable proof of age and identity. In Regulation 7-B the commissioner did not provide for acceptable proof of identity but established an exclusive method which was to be provided by the commissioner of law enforcement as a means of determining the age of a doubtful person. In addition to such singular method of determining age, which allowed no discretion on the part of the licensee or his agents, the commissioner adopted a provision that any other means of acceptable proof would not provide “legal excuse” for the sale of alcoholic beverages to any person under legal age. I.C. § 23-1025 does not confer such regulatory powers upon the commissioner of law enforcement and the adoption of Regulation 7-B is void in that it is arbitrary and capricious in that he has no statutory grant of authority for the. promulgation of such regulation.
The legislature did not authorize establishment by the commissioner of law enforcement a rule creating legal conclusions pertaining to violations of the general law prohibiting sale of alcoholic beverages to minors. Making of such a rule rests with the legislature. Such authority most certainly may not be delegated by the legislature to an administrative agency.
“Reasonable Exercise of Discretion and Arbitrary Power Distinguished.— In all cases where a law provides for the exercise of discretion by administrative officers, in order to be valid and escape the taint of unconstitutional exercise of legislative or judicial authority, the discretion must be lawfully ex*543ercised in accordance with established principles of justice. It cannot be a mere arbitrary choice, for it has been said that in the American system of government no room is left for the play and action of purely arbitrary power. A distinction is consequently drawn between a delegation of the power to make the law which necessarily includes a discretion as to what it shall be and the conferring of authority or discretion as to its execution. The first cannot be done, but the second under certain circumstances is permissible.” 11 Am.Jur., Constitutional Law, § 234, p. 947.