concurring and dissenting.
I.
INTRODUCTION.
I find much in the opinion of the Court with which I can agree. However, in certain crucial areas, I must depart from what the majority has said.
The majority opinion admirably expresses the principle of separation of powers among the three departments of our state government. It also correctly points out that this Court has jurisdiction to consider the issue presented to us by the Board of Health and Welfare. Nor do I quarrel with the characterization of the rules of state agencies as not being equivalent to statutory law. (Throughout I will use the term “rule” in the sense used in I.C. § 67-5201(7): “any agency statement of general applicability that implements or prescribes law or interprets a statute as the statement applies to the general public.” In this sense it encompasses a “regulation.”) I also agree with the conclusion that the district boards of health and welfare are required to administer and enforce the rules of the state Board of Health and Welfare and that District VII has the duty to enforce the Board’s 1985 rules.
Where I differ from my esteemed colleagues is in their placing the stamp of constitutionality upon the portion of I.C. § 67-5218 that allows the legislature to reject, amend or modify a rule promulgated by a state agency by means of a concurrent resolution stating that the rule violates legislative intent. In my view, this provision violates not only the separation of powers between the legislative and executive departments but also the separation of powers between the legislative and judicial departments.
As I see it, the legislature has the power to authorize, but is not compelled to authorize, an agency to make rules. If the legislature does authorize, it must do so by the enactment of a statute in the constitutionally prescribed fashion. In its authorization the legislature must give the agency adequate guidance as to its intent and purposes so that the agency will be able to *673determine the scope of its authority in making the rules that are authorized.
If there is a challenge that an agency has exceeded or misused the authority given to it by the legislature to make rules, the legislature may amend the statute to redefine the scope of the agency’s authority, or it may repeal the authorization altogether. In either case, the legislature must act through legislation enacted in the form and according to the procedures prescribed in our constitution.
If an interested party objects to a rule promulgated by an agency pursuant to authority granted by the legislature, that party may institute an action in a court vested with the necessary jurisdiction to consider the question presented. The court may determine whether the agency exceeded the authority granted to it by the legislature. It is a judicial function to decide whether the agency’s rule violated the legislative intent embodied in the statute authorizing the rule making.
Decisions of this Court during the past half century have confirmed these principles. These decisions make it clear to me that allowing the legislature to reject, amend or modify a rule of an administrative agency by concurrent resolution would do violence to the balance the drafters of our constitution intended between the three departments of our government.
II.
VIOLATION OF THE SEPARATION OF POWERS OF THE LEGISLATIVE AND EXECUTIVE DEPARTMENTS.
In State v. Taylor, 58 Idaho 656, 78 P.2d 125 (1938), this Court upheld legislation authorizing the public works commissioner to cooperate with the federal government and local agencies for the construction, improvement and maintenance of secondary or feeder roads in the state. In doing so, we rejected a challenge that the legislature had unconstitutionally delegated its power to make law:
It seems to be an accepted rule of judicial decision that the legislative function has been complied with, where the terms of the statute are sufficiently definite and certain to declare the legislative purpose and the subject matter meant to be covered by the act; and that the Legislature may constitutionally leave to administrative agencies the selection of the means and the time and place of the execution of the legislative purpose, and to that end may prescribe suitable rules and regulations.
Id. at 664, 78 P.2d at 128 (citations omitted).
In State v. Heitz, 72 Idaho 107, 238 P.2d 439 (1951), this Court upheld the constitutionality of a statute authorizing the commissioner of public works to make regulations reducing the permissible sizes, weights, and speeds of vehicles driven on state highways. In Heitz we delineated the scope of legislative power to authorize administrative agencies to make rules:
A legislature, or other law-making body, in enacting a law complete in itself, designed to accomplish the regulation of particular matters falling within its jurisdiction may expressly authorize an administrative commission (in this case the Commissioner of Public Works) within definite limits, to provide rules and regulations for the complete operation and enforcement of the law within its expressed general purpose, and in so doing, the administrative officer or board so empowered may be given the right to prescribe or vary regulations concerning motor vehicles used on public highways ____
A legislative body cannot delegate legislative power to make laws to other body or authority, State v. Nelson, 36 Idaho 713, 213 P. 358, but this rule does not preclude conferring upon local subdivisions or administrative officers the power to prescribe or vary regulations concerning motor vehicles used on public highways within definite limits fixed by the legislative body.
Nor are such rules and regulations prescribed by administrative boards where applicable to all persons and authorized by the legislature unconstitutional. Such authority to make rules and *674regulations to carry out an express legislative purpose or to effect the operation and enforcement of the same is not exclusively a legislative power, but is administrative in its nature.
72 Idaho at 111-12, 238 P.2d at 441-42 (citations omitted).
The same year that the Administrative Procedure Act (Title 67, Ch. 52, Idaho Code) was enacted by the legislature, Taylor and Heitz were cited by this Court in Abbot v. State Tax Commission, 88 Idaho 200, 398 P.2d 221 (1965), in upholding the authorization given by the legislature to the State Tax Commission to classify property for taxation purposes.
Just a decade ago in Beker Industries, Inc. v. Georgetown Irrigation District, 101 Idaho 187, 610 P.2d 546 (1980), this Court held that the director of the Department of Water Resources had not been granted statutory authority to approve an application by the holder of a water right to change the nature of the use of the water right. There, we said: “An administrative agency like [the Department of Water Resources] has only such powers as the statute or ordinance confers.” Id. at 191, 610 P.2d at 550.
In 1983 we decided a case that involved the attempted use of a concurrent resolution by the legislature to overrule the action of the Water Resources Board, a constitutionally created administrative agency. The constitutionál provision that created the Water Resources Board stated:
State water resource agency. — There shall be constituted a Water Resource Agency, composed as the Legislature may now or hereafter prescribe, which shall have power to formulate and implement a state water plan for optimum development of water resources in the public interest; to construct and operate water projects; to issue bonds, without state obligation, to be repaid from revenues of projects; to generate and wholesale hydroelectric power at the site of production; to appropriate public waters as trustee for Agency projects; to acquire, transfer and encumber title to real property for water projects and to have control and administrative authority over state lands required for water projects; all under such laws as may be prescribed by the Legislature.
ID. CONST, art. 15, § 7.
In Idaho Power Co. v. State, 104 Idaho 570, 661 P.2d 736 (1983), this Court held unconstitutional the statute by which the legislature had invested itself with the power to reject, amend or modify the state water plan adopted by the Water Resources Board. There, a unanimous Court said:
The Board is the state “water resource agency” contemplated by Idaho Const. Art. 15, § 7, and in that constitutional provision the agency is specifically empowered to “formulate and implement a state water plan.” Appellants argue, however, that the concluding phrase in Art. 15, § 7, “all such laws as may be prescribed by the legislature,” subordinates the powers of the agency to those of the legislature, giving the legislature authority to amend or reject the formulated water plan of the Board.
... [W]e interpret the phrase in question to be an expression of the legislature’s authority to enact such laws as may be necessary to the carrying out of the purposes of the constitutional provision____
The next question is whether I.C. § 42-1736 is constitutional. Of course, it follows from our interpretation of Art. 15, § 7, above, that it is not, since it purports to authorize the legislature to perform functions constitutionally assigned to the Board. But even if I.C. § 42-1736 had authorized legislative action which was not in conflict with Art. 15, § 7 of the constitution, it could still have no legal effect because it provides for legislative action on the state water plan by means of a concurrent resolution. The state legislature can enact no law except it be by the constitutionally prescribed process, which requires that every bill, before it becomes law, be presented to the governor. Idaho Const. Art. 3, § 15; Art. 4, § 10. To the extent that Art. 15, § 7 authorizes the legisla*675ture to influence the operation of the Water Resources Board, it does so only as to “such laws as may be prescribed by the legislature”. Legislative action by resolution is not a “law” in that context.
Id. at 572-74, 661 P.2d at 738-40 (emphasis added).
The question that must be answered before we can determine whether the decision in Idaho Power Co. v. State is applicable in resolving the fundamental issue presented in this case is: what was the nature of the power that the Water Resources Board was exercising in formulating and implementing a state water plan? If it was legislative power, the decision has no application to this case. In that case we would construe article 15, section 7, to be an exercise of the prerogative of the people through the constitution to direct one department to exercise a power belonging to another department. ID. CONST, art. 2, § 1 (“No person or collection of persons charged with the exercise of powers properly belonging to one of these departments shall exercise any powers properly belonging to either of the others, except as in this constitution expressly directed or permitted.”) On the other hand, if it was an authorization to exercise administrative power in the same sense that administrative agencies are authorized by the legislature to promulgate rules, it would be applicable here.
In my view, the power given to the Water Resources Board by article 15, section 7, “to formulate and implement a state water plan for optimum development of water resources in the public interest” was not pure legislative power, but was instead authorization to carry out by administrative action a purpose established by the people in amending the constitution.
In 1965 the legislature carried out its authority to provide for the composition of the Water Resource Agency:
Pursuant to the provisions of article 15, section 7, of the constitution of the state of Idaho, there is hereby established as the constitutional water agency within the department of water resources the Idaho water resource board which shall consist of eight (8) appointed members.
I.C. § 42-1732 (Supp.1989).
The Water Resources Board then became part of an agency that is part of the executive department — the Department of Water Resources. I.C. § 42-1701(1) (1977) (“There is hereby created the department of water resources, which shall, for the purposes of section 20, article IV, of the Constitution of the state of Idaho, be an executive department of the state government.”). As an executive agency, the Water Resources Board may exercise only those powers given to it by article 15, section 7, or as authorized by the legislature. Additional powers and duties of the Water Resources Board have been stated by the legislature in I.C. § 42-1734. The only thing unique about the authorization to formulate and implement a state water plan granted to the Water Resources Board by article 15, section 7, is that since it is granted by the constitution and not by the legislature, it may only be taken away or limited by constitutional amendment, not by legislative action. This distinguishes this authorization to formulate and implement a state water plan from the powers granted to the Water Resources Board by the legislature.
Returning to Idaho Power Co. v. State, it is now clear to me that the principle established when this Court decided that the legislature by concurrent resolution could not affect the state water plan developed by the Water Resources Board is directly applicable to resolving the constitutionality of that part of I.C. § 67-5218 which allows the legislature by concurrent resolution to reject, amend or modify a rule promulgated by the Board of Health and Welfare. While all authority of the Board of Health and Welfare is statutory and none is established by the constitution, that only affects whether the legislature may by statute amend or repeal the grant of that authority. It does not affect the principle that the legislature may not by concurrent resolution override the exercise of administrative authority.
*676III.
VIOLATION OF THE SEPARATION OF POWERS OF THE LEGISLATIVE AND JUDICIAL DEPARTMENTS.
I also conclude that I.C. § 67-5218 is constitutionally flawed so far as it allows the legislature to determine whether an agency rule violates the legislative intent of the statute under which the rule was made. As I see it, this determination is a judicial function under our constitution.
In Holly Care Center v. State Department of Employment, 110 Idaho 76, 714 P.2d 45 (1986), this Court held that rules of the Department of Employment were invalid because they contravened statutory law. In words pertinent to this case, we said:
We begin by noting that there is no serious question about the authority the Department of Employment has in promulgating rules relating to Idaho’s Employment Security Law____ [Administrative rules are invalid which do not carry into effect the legislature’s intent as revealed by existing statutory law, and which are not reasonably related to the purposes of the enabling legislation.
In Howard v. Missman, 81 Idaho 82, 88, 337 P.2d 592, 595 (1959), this Court stated that traffic rules and regulations, “lawfully adopted and placed by administrative authority, and which are not merely arbitrary or capricious, have the force and effect of law____” That statement is equally applicable to other types of administrative acts, including, as we have here, rule making.
Thus, our inquiry is whether the rules here in question are consonant with I.C. § 72-1319 — the legislature’s expressed intent on determining major and minor tax delinquencies — and whether the rules are reasonably related to that section. Because we hold that the rules fail on both accounts, we reverse the Iñdustrial Commission’s decision.
110 Idaho at 78, 714 P.2d at 47 (citations omitted) (emphasis in original). We reached this conclusion despite the fact that the legislature had approved the rules in question as not violating the intent of the statute. This decision clearly reveals the power the judiciary has to determine whether an agency rule is contrary to the authority granted by the legislature to promulgate rules to carry out the intent of the legislature.
The legislative power is the power to enact law. The judicial power includes the “inherent power to render decisions regarding Idaho law.” Sunshine Mining Co. v. Allendale Mut. Ins., 105 Idaho 133, 136, 666 P.2d 1144, 1147 (1983). We have traditionally exercised this power in determining whether administrative rules exceed the authority given to the agency by the legislature. E.g., State v. Taylor, 58 Idaho 656, 78 P.2d 125 (1938); State v. Heitz, 72 Idaho 107, 238 P.2d 439 (1951); Abbot v. State Tax Comm’n, 88 Idaho 200, 398 P.2d 221 (1965); Beker Indus., Inc. v. Georgetown Irrigation Dist., 101 Idaho 187, 610 P.2d 546 (1980); Holly Care Center v. State Dep’t of Employment, 110 Idaho 76, 714 P.2d 45 (1986).
I see a violation of judicial power in treating as an exercise of legislative power a finding by a sitting legislature that a rule promulgated by an agency violates the intent of a statute enacted by a prior legislature. What is involved in making such a finding is an adjudication of legislative intent. How does the legislature go about determining what was intended by their predecessors? I assume they must look at the language of the statute, the purpose that is evident from its context, the circumstances that brought about the legislation, the statement of purpose, the opinions of legislators and others who participated in its formulation and adoption, committee reports and other materials that might shed light on legislative intent. This process is clearly a judicial, not a legislative, function. Our courts struggle daily with this question. I am not prepared to say that the legislature may now by concurrent resolution declare what a prior legislature intended by a particular statute.
IV.
CONCLUSION.
With these principles in mind, I would resolve the matter now before us as follows:
*6771. The legislature has authorized the Board of Health and Welfare to adopt: ... rules, regulations, codes and standards, as may be necessary to deal with problems related to ... water pollution ..., and licensure and certification requirements pertinent thereto, which shall, upon adoption by the board, have the forcé of law relating to any purpose which may be necessary and feasible for enforcing the provisions of [the Environmental Protection and Health Act], including, but not limited to the prevention, control or abatement of environmental pollution or degradation and the maintenance and protection of personal health. Any such regulation or standard may be of general application throughout the state or may be limited as to times, places, circumstances or conditions in order to make due allowance for variations therein.
I.C. § 39-105(2) (Supp.1989).
2. The legislature has also authorized the Board of Health and Welfare to adopt rules and regulations for the construction of sewage treatment works. I.C. § 39-3602(0(3) (Supp. 1989).
3. Pursuant to the authority granted by the legislature to the Board of Health and Welfare by Title 39, Chapter 1 and Title 39, Chapter 36, Idaho Code, the Board adopted “REGULATIONS FOR INDIYIDUAL/SUBSURFACE SEWAGE DISPOSAL SYSTEMS” on October 15, 1985. IDAPA 16.01.3001-999.
4. If the legislature believed that the regulations concerning individual subsurface sewage disposal systems violated the legislative intent of the statutes pursuant to which the regulations were adopted, or if the legislature simply did not agree with the regulations, the legislature had the power to amend or repeal the statutes in the usual legislative manner.
5. If any interested person believed that the regulations violated the legislative intent of the statutes pursuant to which they were adopted, that person could bring an action in court to have the regulation declared invalid.
6.The attempt of the legislature by a concurrent resolution adopted pursuant to I.C. § 67-5218 to reject the regulations constitutes an effort by the legislature to:
a. take over a function of an executive agency; and
b. usurp the judicial authority to determine whether the rules of the agency violated legislative intent.
If the legislature by concurrent resolution can nullify the rules of an administrative agency, then that agency has, in effect, become no more than an arm of the legislature, subject to its management. This would improperly breach the separation between the legislative and executive departments.
If the legislature sitting in 1989 can adjudicate whether the intent of the legislature sitting in the years when I.C. §§ 39-105(2) and 39-3602(C)(3) were enacted has been violated, then the legislature has become, in effect, a court.
Neither of these results comports with my understanding of the proper constitutional separation of the three departments of our state government.