Opinion
Civ. A. No. EC-6645.
July 15, 1966.
Alvin J. Bronstein, Bruce S. Rogow, Donald A. Jelinek, Lawyers Constitutional Defense Committee, Jackson, Miss., for plaintiff.
Joe T. Patterson, Atty. Gen., State of Miss., and Will S. Wells, Asst. Atty. Gen., State of Miss., Jackson, Miss., for defendants.
Before BROWN, Circuit Judge, and CLAYTON and RUSSELL, District Judges.
This suit, heard by a three-judge court, brought under 28 U.S.C.A. §§ 1332, 1343(3) and (4) and 2201 and 42 U.S.C.A. §§ 1983, 1985 and 1988, challenges the constitutionality of § 6726.7 of the Mississippi Code of 1942, both under the Federal and State Constitutions. This statute authorizes the Board of Trustees of State Institutions of Higher Learning to enact traffic rules and regulations for the control and direction of parking and traffic on the campuses of State Institutions of Higher Learning. The violations of rules or regulations promulgated thereunder are to constitute a misdemeanor for prosecution in the Justice of the Peace Court. The principal attack is that this is an unconstitutional delegation of legislative powers and, as a corollary, if delegation were permissible generally, the enabling statute is too vague and does not prescribe adequate legislative standards. We uphold the validity of the statute and deny the relief sought.
§ 6726.7. Traffic regulations for campus and streets — enforcement — penalty for violation. — 1. The Board of Trustees of State Institutions of Higher Learning is hereby authorized and empowered to enact traffic rules and regulations for the control, direction, parking and general regulation of traffic and automobiles on the campus, and streets of any state institution of higher learning under the supervision of such board.
2. The traffic officers duly appointed by the president of any state institution of higher learning, or any peace officer or highway patrolman of this state, are vested with the powers and authority to perform all duties incident to enforcing such rules and regulations, including the arrest of violators.
3. Violation of any rules or regulations promulgated hereunder shall constitute a misdemeanor, and any person charged with a violation of such rules or regulations may be charged with such violation in the Justice of the Peace Court of the district in which violation occurred, and any person convicted of a violation of any such rule or regulation may be punished by a fine of not more than one hundred dollars ($100.00), or by imprisonment not exceeding thirty days, or by both such fine and imprisonment.
4. Any rules and regulations promulgated hereunder shall become effective only after notice of the enactment of same has been published in three consecutive weekly issues of the college newspaper and in a newspaper published and having general circulation in the County or municipality where the institution to which same pertain is located, and such notice shall state where the full text of such rules and regulations may be found on file. And in addition, such rules and regulations shall be posted on five bulletin boards at each such institution for a period of four weeks after their promulgation.
SOURCES: Laws, 1954, ch. 281, §§ 1-4.
To preserve the status quo, the Court granted a temporary restraining order pending final decision of the Court. This restraining order is vacated by our order, but, as later pointed out, the Plaintiff as a practical matter obtains substantially all of the relief sought as to the pending traffic violations which makes further orders unnecessary.
As the case comes to us, it is virtually without any factual controversy. By commendable close collaboration of counsel under the pretrial supervision of the Court, the parties, by pleading and stipulation, have eliminated all significant factual issues and have narrowed the legal issue to the single one of the constitutionality of § 6726.7 (and to a limited extent the 1954 regulations promulgated thereunder). The facts, therefore, are not complex or conflicting.
Plaintiff is a white, male, full-time student at Mississippi State University of Agriculture and Applied Science (MSU) at State College, Mississippi. Claiming that there are common questions of law and fact, he brings this action on his own behalf and on behalf of all other students and personnel at MSU. The institution, MSU, was created by the Act of February 28, 1878. Besides MSU, other officers and officials of the institution, the Board of Trustees, and certain representatives of student organizations are made parties defendant.
The Defendants are:
William L. Giles President, MSU
Board of Trustees of the Institutions of Higher Learning of the State of Miss.
Verner S. Holmes President, Board of Trustees
S. R. Evans Vice President, Board of Trustees
Harold B. Hall Dean of Men at MSU
Durward W. Aiken Dean of Students' Affairs, MSU; Chairman, Faculty Discipline Committee; Chairman, Traffic Committee
Tommy M. McWilliams Chairman, Judicial Council of the Student Association, MSU
Troy Majure President, Student Association, MSU
The Plaintiff, at least in the eyes of the traffic security authorities, is a persistent violator of parking regulations on the campus. Directly at the heart of this controversy is the action taken by MSU with respect to the ten violations occurring between March 21, 1966 and May 13, 1966. These traffic tickets were issued by authorized campus traffic officers purportedly under § 6726.7 (note 1, supra), and the regulations enacted by the Board of Trustees September 16, 1954, plus certain revisions of 1958 and supplements thereto which MSU undertook to put into effect. The 1954 regulations prescribed a number of standards for the use and operation of automobiles on the campus including registration of vehicles, speed limits, prohibition of reckless driving, driving under influence of alcohol or drugs, parking, driving with cutouts, excessive use of horns, compliance with stop signs, traffic routing signs, lights, and the like. Of importance here, these regulations did not prescribe any form of University administrative sanctions or University administrative procedure for the enforcement of fines or other penalties. Rather, the sole sanction was to be a charge brought in the Justice of the Peace Court for prosecution as a misdemeanor with a prescribed maximum fine, imprisonment, or both.
These are shown by Exhibit A annexed to the Complaint:
See paragraph 6 of the stipulation, (see note 12, infra). The documentary evidence offered by the defendants establishes without contradiction that the 1954 regulations were properly published as required by § 6726.7(4) in both the Reflector, the student publication, and the Starkville Daily News.
In 1958 MSU, without any prior or subsequent ratification by the Board of Trustees, undertook to modify the 1954 regulations extensively. These were published in the student paper, the Reflector, but not otherwise. The marked difference between the 1954 and 1958 regulations was the introduction of a series of institutional administrative sanctions and enforcement procedures which, the Plaintiffs claimed, had the effect of putting a premium on a quick administrative "plea of guilty" and, conversely, a deterrent on the exercise of the fundamental right to deny guilt and defend. By subsequent purported revisions by MSU (not the Board of Trustees) the triple route was set up under which parking violators may be processed either (1) by the uncontested payment of a fine or (2) by a hearing within MSU by either the Judicial Council or Faculty Discipline Committee or (3) by referral to the local Justice of the Peace for criminal trial.
It was also admitt`ed that the "changes since 1958" in the penalties for parking violators" are so bewildering and numerous that it is impossible to determine with certainty what those penalties are. (See also paragraph 11, Stipulation, Note 12 Infra.)
Beginning on April 1, 1966, the Plaintiff commenced his vigorous contest of the validity of the parking regulations of MSU and the tickets issued to him (and presumably those to follow in April and May), (see note 4, supra). Thus began the contentious dispute resulting in the filing of this case. His position, so well known to the MSU authorities, triggered administrative action. On May 3, 1966, Dean Hall by letter advised Plaintiff that there were five parking tickets issued during March 1966 which were unpaid. The letter plainly stated that a failure to pay the fines by 11:30 a. m. May 7, 1966, would require that his "withdrawal from the University be processed in the office of student affairs on Monday, May 9, 1966." On May 7, 1966, Dean Aiken advised Plaintiff that a hearing before the Faculty Discipline Committee with respect to the five unpaid tickets for March 1966 was scheduled for May 11. In response to this by letter of May 9, Plaintiff through his present counsel in specific terms which paraphrased the present legal complaint, objected to the holding of the disciplinary proceedings, referral to the Justice of the Peace or other action to enforce the traffic tickets. The hearing scheduled for May 11 was postponed and so far as the record discloses no hearing was held. In the meantime, on May 14, 1966, Dean Aiken advised Plaintiff that the five unpaid tickets had been referred to the local Justice of the Peace for handling "by the state law enforcement agencies in the State courts." This resulted in his arrest on May 16, 1966. Before the trial, scheduled for May 21, 1966, Plaintiff filed a removal petition to this Court where it pends as Criminal Action No. ECR-6660.
Against this background, the plaintiff made the broad charge that he was being prosecuted and threatened with prosecutions or disciplinary proceedings for violations of parking regulations, which are unconstitutional for a number of reasons. The relief requested was both specific and general.
But by virtue of the stipulations of counsel which the Court receives as evidence, most of this has washed out and the case now is narrowed to the single question of the constitutionality of § 6726.7 and, to an extent, the validity of the 1954 regulations. The stipulation eliminates all question concerning the 1958 and post 1958 attempted amendments of the 1954 regulations. But the stipulation goes much further. The defendants admit that the purported 1958 amendments and subsequent supplements were not published as required by statute (par. 8) and that those of 1958 and of 1965 were "without legal authority * * * amounting in law to a nullity" and that they "do not supersede, amend or affect the * * * 1954" regulations which "are now in full force and effect" (par. 15) and are the sole parking rules or regulations which "can be enforced against the plaintiff" (par. 16). More decisive, this leads defendants to make the legal concession that "the defendants cannot proceed further either by criminal or administrative procedures against the named plaintiff on the parking violations now charged against him" (par. 16) and to agree that "no further proceedings can be taken against the plaintiff either administratively or in the state courts on the parking violations now charged against him and that all of the charges will be dismissed * * *" (par. 17).
The upshot of this is that we agree with the Plaintiff's trial memorandum brief that Paragraphs (3), (4)(a)(b)(c), (5) and (6) of the prayer, see note 11, supra, are no longer in issue.
As thus simplified Plaintiff's request (Par. 2, prayer, note 11, supra) that we declare § 6726.7 unconstitutional becomes a greatly simplified problem. Despite the efforts of the Plaintiff to make Baker v. Carr, 1961, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663, into a declaration that under the Guaranty Clause, Luther v. Borden, 1849, 7 How. (U.S.) 42, 12 L.Ed. 581, a republican form of government prohibits long accepted traditional concepts of delegation of some power by the Legislative branch, our case now presents merely the application of long accepted principles.
At least since United States v. Grimaud, 1911, 220 U.S. 506, 31 S.Ct. 480, 55 L.Ed. 563, the power of Congress to delegate to an Executive department or an administrative agency the power to promulgate rules and regulations, the violation of which is subject to criminal sanctions, is entirely consistent with our constitutional structure. The Court spoke broadly:
"From the beginning of the government, various acts have been passed conferring upon executive officers power to make rules and regulations, — not for the government of their departments, but for administering the laws which did govern. None of these statutes could confer legislative power. But when Congress had legislated and indicated its will, it could give to those who were to act under such general provisions `power to fill up the details' by the establishment of administrative rules and regulations, the violation of which could be punished by fine or imprisonment fixed by Congress, or by penalties fixed by Congress, or measured by the injury done."
In American Power Light Company v. Securities Exchange Commission, 1946, 329 U.S. 90, 67 S.Ct. 133, 91 L.Ed. 103, the Court upheld congressional delegation providing, of course, that Congress delineates the general policy, the agency which is to execute, and the boundaries of such delegated authority. This power has been upheld in numerous cases. See Hotch v. United States, 9 Cir., 1954, 212 F.2d 280, 14 Alaska 594; Charles Hughes Co. v. Securities Exchange Commission, 2 Cir., 1943, 139 F.2d 434, cert. denied, 321 U.S. 786, 64 S.Ct. 781, 88 L.Ed. 1077; United States v. Grunenwald, W.D.Pa., 1946, 66 F. Supp. 223; Schueller v. Drum, E.D.Pa., 1946, 51 F. Supp. 383; American Trucking Assns., Inc. v. United States, N.D.Ala., 1951, 101 F. Supp. 710; cf. Hirabayashi v. United States, 1943, 320 U.S. 81, 63 S.Ct. 1375, 87 L.Ed. 1774.
The legislative standard to serve as guidelines to the administrative agency — here being the Board of Trustees — presents no real problem under § 6726.7. When it is borne in mind that in any prosecution commenced in the Justice of the Peace Court the defendant has the full right to challenge the validity of the regulation charged to have been violated either as to vagueness, indefiniteness or otherwise, we think it was quite adequate for the Mississippi Legislature to broadly define the scope and area of the administrative regulations to be promulgated by it. Unless the Legislature were to spell out the very same details, we are at a loss to understand how the statutory charge to the Board of Trustees "to enact traffic rules and regulations for the control, direction, parking and general regulation of traffic and automobiles on the campus and streets" of State institutions could have been made any more plain. Nor do the cases described by the Plaintiffs "as economic due process decisions" require any different result.
Of course, our upholding the constitutionality of § 6726.7 also to a limited extent upholds the validity of the 1954 regulations. The statute, absent the regulations, has no operative effect upon any person. It affects no one's conduct either in enforcement, compliance, prosecutions or penalties. But apart from the claim of unconstitutional delegation of legislative power, no attack has been made on the 1954 regulations or any provision thereof. We hold that Mississippi had the right to delegate this much authority to the Board of Trustees, and that the Board of Trustees had authority to promulgate valid regulations. The regulations do not suffer, therefore, from the fact that they are the creature of a subordinate administrative agency acting pursuant to delegated authority. We also hold that the legislative standards as guidelines to the Board of Trustees were reasonably adequate considering the field to be occupied and the nature of the activities to be regulated. Whether a particular regulation which is charged to be violated suffers from vagueness or indefiniteness is, of course, quite a different question and one not before us. Hence we do not run into the problem, urged so vigorously by the Plaintiff which is discussed in Lanzetta v. State of New Jersey, 1939, 306 U.S. 451, 59 S.Ct. 618, 83 L.Ed. 888 and Giaccio v. State of Pennsylvania, 1966, 382 U.S. 399, 86 S.Ct. 518, 15 L.Ed.2d 447; Cox v. State of Louisiana, 1955, 379 U.S. 536, 557, 85 S.Ct. 453, 13 L.Ed.2d 471; Niemotko v. Maryland, 1951, 340 U.S. 268, 272, 71 S.Ct. 325, 95 L.Ed. 267; Yick Wo v. Hopkins, 1885, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220.
And the Plaintiff's case fares no better on the charge of unconstitutionality under the Mississippi Constitution. The Supreme Court of Mississippi applies essentially the approach of the Supreme Court in relation to congressional delegation of power to executive agencies. In State ex rel. Attorney General v. County School Board of Quitman County, 181 Miss. 818, 181 So. 313, the Supreme Court of Mississippi, in discussing the question of delegation of authority by the legislature used this language:
"The legislative power of this state is vested in the Legislature; and while the Legislature may confer authority for legislative action, or discretion, on local boards or governmental subdivisions, stating the conditions under which such laws may become effective as a part of the legislative will, it has not been given the power, under the Constitution, to surrender its own discretion to the qualified electors of the state or any part of the state. It may determine the conditions under which laws shall operate, and leave to local authorities the determination of facts under these conditions in a particular locality, as to the particular subject matter of the statute." (Emphasis added.)
Since we hold the statute valid and all relief to which Plaintiff would otherwise be entitled has been accorded by judicial concessions of the defendants, the injunction and declaration sought are denied and the complaint is dismissed with costs taxed equally.
Decree in accordance with opinion.
TRAFFIC TICKETS --------------- Ticket No. Date Time Charge Location ---------- ---- ---- ------ -------- 009197 March 21, 1966 1:30 P.M. Restricted Parking Magruder 009512 March 28, 1966 9:20 A.M. Restricted Parking Magruder 009650 March 28, 1966 9:10 A.M. Restricted Parking Magruder 009762 March 30, 1966 9:40 A.M. Restricted Parking Lee Blvd. North 009853 March 31, 1966 2:05 P.M. Restricted Parking Lee North 010734 May 3, 1966 9:45 A.M. Parking Overtime Lee Blvd. C. 010843 May(?) 1966 12:30 P.M. Parking Overtime Lee Blvd. C. 010845 May 5, 1966 1:35 P.M. Parking Overtime Lee Blvd. C. 010852 May 6, 1966 9:40 A.M. Parking Overtime Lee Blvd. C. 011017 May 13, 1966 3:00 P.M. Parking Overtime Lee Blvd. C.See paragraph 6 of the stipulation, (see note 12, infra). The documentary evidence offered by the defendants establishes without contradiction that the 1954 regulations were properly published as required by § 6726.7(4) in both the Reflector, the student publication, and the Starkville Daily News.