[86 Ariz. 248] Wade Church, Atty. Gen., H. B. Daniels, Asst. Atty. Gen., T. J. Mahoney, County Atty., Florence, for plaintiff.
Ellis & Cox, Eloy, and Richard G. Clemans, Casa Grande, for defendant.
Ray Wacker was informed against by the county attorney of Pinal County, Arizona, for wilfully failing to comply with the provisions of Amended Crop Regulation No. 7 of the Arizona Commission of Agriculture and Horticulture, a regulation designed to suppress and eradicate an insect pest known as the Pink Bollworm of Cotton. The defendant was specifically charged with failing after harvest to have crop remnants remaining in his cotton field shredded, chopped of cut and plowed under to the depth of four inches or more, a misdemeanor. On motion to quash the information, the trial court certified certain questions to this court, of which those deemed necessary to a proper resolution of the motion will be considered. [86 Ariz. 249] Question No. I
'Is the delegation of 'Power and Authority' as set forth in Sec. 3-103 of Title 3, Chapter 1, of the Agricultural Administration Act, A.R.S., 1956, unconstitutional as being a delegation of legislative power to an administrative agency, without a statement of policy, guides, limitations or restraint?'
This question is directed to subsection 2, A.R.S. § 3-103, which provides:
'The commission may * * * (2) Make and enforce all rules, regulations and orders necessary to * * * prevent introduction of a crop pest or disease into the state, and to prevent propagation or dissemination of a crop pest or disease from one locality to another within this state, and to control, eradicate or to suppress a crop pest or disease.'
The question of proper standards to restrict the sphere of action of administrative agencies has twice been extensively considered in recent decisions of this court, with opposing results. In State v. Marana Plantations, 75 Ariz. 111, 252 P.2d 87, 90, we held invalid a statute which permitted the State Board of Health to enact rules to 'regulate sanitation and sanitary practices in the interests of public health' and to 'protect and promote the public health and prevent disability and mortality' as being a complete delegation of legislative power. The statute neither designated a specific evil toward which it was directed nor defined the course of conduct which was to be followed by the administrative agency. No determination of fact was required upon which the law was dependent for its operation prior to adoption of regulatory measures. No attempt was made to limit the area within which the Board's power was to operate. We further said:
'* * * It may safely be said that a statute which gives unlimited regulatory power to a commission, board or agency with no prescribed restraints nor criterion nor guide to its action offends the Constitution as a delegation of legislative power. The board must be corralled in some reasonable degree and must not be permitted to range at large and determine for itself the conditions under which a law should exist and pass the law it thinks appropriate.' 75 Ariz. 111, 252 P.2d 87, 89.
On the other hand, in Southwest Engineering Co. v. Ernst, 79 Ariz. 403, 291 P.2d 764, we upheld the constitutionality of those sections of the groundwater code which required, upon a finding by the State Land Commissioner of a critical groundwater condition, a declaration of a critical groundwater area and then the drilling of further irrigation wells was by operation of law forbidden. We held that the legislature [86 Ariz. 250] might condition the operation of a statute upon an administrative finding of an ultimate fact as long as an adequate quide for determining that fact was provided.
In the instant case, the Act in question is more nearly comparable to the Ernst case. The legislature has defined by A.R.S. § 3-201, crop diseases and crop pests:
'* * * 2. 'Crop diseases' includes all fungus, bacteria, virus or other organism of any kind and any unknown cause which is or may be found to be injurious, or likely to be or to become injurious to any domesticated or cultivated plant, or to the product of any such plant.
'3. 'Crop pests' includes all insects, mites, spiders and other animal organisms found injurious, or likely to become injurious, to any domesticated, cultivated, native or wild plant, or to the product of any such plant.'
It thus becomes the duty of the Commission to make and enforce rules, regulations and orders necessary to prevent the introduction, propagation or dissemination and to control, eradicate or suppress only those pests and diseases which are found to be injurious or likely to become injurious to plants or their products.
A.R.S. §§ 3-207 and 3-208 further circumscribe the actions of the Commission and the State Entomologist in that the State Entomologist, prior to calling a hearing before the Commission, must believe that '* * * a pest or disease * * * menaces or threatens serious injury to the horticultural or agricultural industry of this state * * *' and the Commission must find that such a menace exists. The Criterion, guide or ...