Appellants contend, and rightly so, that Sections 3 and 16 of the Public Health Ordinance in question exceeds any lawful authority vested in the District Board of Health of Burke, Caldwell and McDowell Counties, and are void.
The statute, Gr.S. 130-66, as rewritten in Chapter 1030 of 1945 Session Laws of North Carolina and designated Gr.S. 130-66, subsections 1,'2, 3, 4 and 5, provides that the State Board of Health of North Carolina is authorized to, and, under the rules and regulations established by it, may form, when certain conditions exist, district health departments or units including more than one county; and, in subsection 4 of the statute as rewritten it is provided that “The District Board of Health shall have the immediate care and responsibility of the health interests of its district *171. . . It shall make such rules and regulations, pay all lawful fees and salaries, and enforce such penalties as in its judgment shall he necessary to protect and advance the public health.”
Thus the District Board of Health is a creature of the Legislature, and has only such powers and authority as are given to it by the Legislature. Utilities Comm. v. Greyhound Corp., 224 N.C. 293, 29 S.E. 2d 909. While it is given power and authority to make rules and regulations, and to enforce penalties, it is not given the power and authority to make laws. Thus in declaring it to be unlawful for any person to sell milk in the district without having first obtained a permit as required by Section 3 of the ordinance, and in prescribing criminal punishment for a violation of the requirement, the Distrct Board of Health exceeded its authority. Indeed, as was aptly said by Agneiv, Jfor the Court in Locke’s Appeal, 72 Pa. St. 491, “The legislature cannot delegate its power to make a law; but it can make a law to delegate a power to determine some facts or state of facts upon which the law makes, or intends to make, its own action depend . . .” This principle is in keeping with the Constitution of North Carolina, Art. II, Section 1, and with decisions in many cases in this State. Express Co. v. R. R., 111 N.C. 463, 16 S.E. 393; S. v. R. R., 141 N.C. 846, 54 S.E. 294; Provision Co. v. Daves, 190 N.C. 7, 128 S.E. 593; Efird v. Commrs. of Forsyth, 219 N.C. 96, 12 S.E. 2d 889; Pue v. Hood, Commr. of Banks, 222 N.C. 310, 22 S.E. 2d 896. See also Field v. Clark, 143 U.S. 647, 36 L. Ed. 294.
Therefore, if the statute, G.S. 130-66, as rewritten as above stated, he deemed sufficiently broad in language as to show a grant of power and authority to the District Board of Health to enact Sections 3 and 16 of the said Public Health Ordinance, it would run counter to the principle that the Legislature cannot delegate its power to make a law.
And it may be noted, in passing, that the General Assembly of North Carolina, now in session, has passed an act, S.B. 110, effective on ratification 28 February, 1949, amendatory of subsection 4 of G.S. 130-66, by adding at the end thereof the following: “If any person shall violate the rules and regulations made and established by a district health department, he shall he guilty of a misdemeanor and fined not exceeding fifty dollars ($50.00) or imprisoned not exceeding 30 days.” However, the act does not purport to be retroactive, and is not applicable to, and requires no consideration in, case in hand.
The defendants are entitled to an acquittal, and, hence, the judgment below is