N.W. 256; cf. Reimer v. Dallas, N.J. Sup., 129 A. 390; see Johnstown Cemetery Association v. Parker, 28 Misc. 280, 59 N.Y.S. 821, 823.
In some instances some courts say that no delegation of legislative power exists but that the statute is complete in itself, merely awaiting a future contingency before it is invoked and that consent of private individuals determines only the existence of this contingency. Particularly is this reasoning prevalent in zoning ordinances where certain uses of realty are dependent upon consent of adjoining land owners
. There is no difference, it seems to me, in effect between those statutes which prohibit unless consent is obtained and those which permit if consent is obtained. Both delegate some authority to private individuals.
Administrative duties were first delegated only to government officials or agencies. Any such delegation to private individuals was thought to be unconstitutional because these persons were not charged with the responsibility and duties of public officials.
Careful analysis of the state decisions, however, has led me to conclude that in many jurisdictions administrative duties may be so delegated, but that such delegation will be stringently construed. Many allow delegation of administrative duties to private individuals or corporations when the delegation is under the police power of the state to regulate for the health, safety and welfare of the public
. Those statutes which were declared unconstitutional were invalid not necessarily because they involved delegations to private groups, but because they failed to establish definite standards to be followed
, because the penalty to be imposed was optional upon private determination
, or because the statute permitted arbitrary discrimination among interested parties
In my opinion this statute prohibiting the reproduction of veterans organizations insignia is constitutional. The delegation of administrative duties is valid in this instance. As I have indicated above, the standards to be followed and the policies to be effectuated are definite and ascertainable. The Penalty for violating any of The American Legion's rules and regulations is fixed by the statute.
In effect, this statute has made infringement of The American Legion's patents a crime. Since their insignia is patented, all rights therein are the property of The American Legion. Unless the defendants get authorization to reproduce this insignia, usually by some form of lease or assignment of the patent, they have no property rights in the insignia.
Since the defendants have no interest in The American Legion's insignia without authorization, I find it hard to see how this statute is unconstitutionally discriminatory. Surely, there is no opportunity in this instance for a majority to force their will upon an unwilling minority, nor can the defendants have interests adverse to those of The American Legion in the subject matter. Carter v. Carter Coal Co., supra.
To a limited degree the statute does allow the American Legion to discriminate between various reproducers, but only to the extent that any owner of a patent can discriminate between different possible assignees. As I indicated above, Congress cannot be expected to keep up to date on the relative abilities of different reproducers. To my mind, this type of discrimination among disinterested parties is not unconstitutional. The patent laws are not unconstitutional because they allow discrimination to this extent, nor should this statute fall for this reason. If The American Legion does not promulgate any rules and regulations, then any reproduction of their insignia violates this law. Such reasonable rules and regulations which are enacted only make lawful that which was previously unlawful.
I realize that private citizens desiring to ascertain if their acts are criminal violations of the laws of the United States, should not be required to look further than the statutes enacted by Congress or, perhaps, in the Federal Register in some cases where there has been a delegation of ministerial duties to governmental agencies. I also realize that The American Legion's rules and regulations probably are not published in any official publication.
In the instant case, nevertheless, the defendants need look only to the statute in question. As far as the record discloses, The American Legion did not promulgate any rules and regulations, and if the defendants were not authorized by The Legion to reproduce their insignia, then, as stated above, any reproduction of the insignia violates this law, and the defendants can be fully apprised of the law from the statute books.
The defendants rely on the case of State v. Holland, 37 Mont. 393, 96 P. 719. Here, a penal statute which prohibited the wilful wearing or use of the insignia of certain named societies unless so entitled under the by-laws to wear that insignia, was declared unconstitutional. While this decision is is not controlling, I think the reasoning of that court is sufficient to distinguish that case from this one. Under the Montana statute, the guilt or innocence of an individual was dependent upon the constitution, by-laws, rules and regulations of societies, some of which were secret. Thus, a conviction might result from rules of which the individual could obtain no knowledge.
The court in the Holland case also felt that the standards to be applied were not sufficiently established because the insignia might be changed in secret meeting of the society. To my mind, the standard is not what the insignia is, but what is to be done with the insignia. But accepting that rationale as correct, the result in this case is not thereby changed. The American Legion's insignia is so established and well known that the standard can be considered to be fixed and definite. Even if The American Legion should change their insignia, the secret factor is not present in this instance.
The defendants also urge that the information is defective in that it does not show what regulations of the American Legion were violated by the defendants.
Each one of the eight counts in the information ends with some form of the phrase 'which reproduction was not authorized by the rules and regulations as were prescribed by the aforesaid The American Legion.' These words do not mean that the defendants violated some regulation which otherwise authorized them to reproduce the insignia. If the crime as charged in this indictment merely pertained to the manner of reproduction, I might be inclined to agree with the defendants' argument. But this is a situation where the statute is complete in itself. These words mean to me that no regulation was passed by The American Legion which authorized the defendants in any way to reproduce the insignia which they are charged with reproducing. To accept the defendants' argument would prevent them from ever being prosecuted, for it is impossible to cite a non-existent rule or regulation. Of course, if the defendants were authorized to reproduce The American Legion insignia, that can be raised as a matter of defense in the trial of this case.
The defendants' motion to dismiss the information is denied.