This is an action to recover a penalty of five hundred dollars imposed by the plaintiff upоn the defendant, for the violation of certain rules and regulations made by plaintiff.
Section 2568 of the Political Code provides that “ the board of harbor commissioners of the pоrt of Eureka are authorized and empowered to make such rules and regulations, and tаke such action, as may be necessary for the protection of navigation in Humboldt Bay.”
Section 2569, subdivision 6, provides: “Impose penalties for violation of such rules and regulations, not exceeding, for any one violation, the sum of five hundred dollars, to be recoverеd by action.”
Section 5 of the rules and regulations made by plain
We do not believe the plaintiff has the power to impose a penalty as provided in the rule just mentioned.
The imposition of a penalty is in the nature of a quasi criminal proceeding, as it only follows from the violation of some law.
In United States v. Montell,
“It is not damages, therеfore, that are intended to be secured, but punishment intended to be inflicted upon those who are justly and properly responsible for any improper use of the vessels’ register. .... In оther words, it is a fixed penalty imposed by law as a punishment for breach of duty enjoined by law, and must be treated as such,” etc.
The board of harbor commissioners is a creature of the statute, and purely an executive body, and the fixing and imposing of penalties are matters of which the legislature alone has cognizance. An act providing that if a person does or does not do a certain thing he shall pay a penalty of five hundred dollars is legislation. And it is а cardinal principle of representative government that the legislature cannоt delegate the power to make laws to any other authority or body. (Cooley’s Constitutiоnal Limitations, 116, 139.)
Conceding that the legislature could delegate to the plaintiff the authority to make rules and regulations with reference to the navigation of Humboldt Bay, the penalty fоr the violation of such rules and regulations is a matter purely in the hands of the legislature.
The аct of the legislature in fixing the maximum of such penalty is of no avail; the vice of the whole mаtter is in not itself fixing the penalty, and in delegating such legislative power to the plaintiff.
And it would seem that the establishment of rules as to the navigation of Humboldt Bay would be simply aсts of executive administration which the legislature could delegate to the plaintiff as аn executive body under the foregoing authority; but when the executive body has made such rules and regulations, it has exhausted all the authority which the legislature had power to confer upon it.
In the case at bar, the legislature attempted to go further than in the case of Ex parte Cox,
Undеr an act of the legislature approved March 4, 1881, the viticultural health officer, with the аpproval of the board of viticultural commissioners, was empowered to declare and enforce ruj.es in the nature of quarantine, to prohibit the importation of diseаsed vines, etc.; and further provided that any willful violation of these rules should constitute a misdemeanor.
The petitioner Cox was discharged upon habeas corpus by this court, he having been convicted of violating certain of these rules and regulations.
The court said : “ For the purpose of local legislation, legislative functions may be conferred upon and exercised by municipal corporations; but the act befоre us is in no sense a conferring of powers for municipal purposes. The legislature hаd not authority to confer upon the officer or board the power of declaring whаt acts should constitute a misdemeanor.”
In that case, the legislature delegated the рower to the board to make the rules, but expressly provided in the act itself the punishment for the violation of such rules.
Let the judgment be affirmed.
Harrison, J., and Paterson, J., concurred.