Ex Parte McCurley
The particular provisions questioned by the petitioner are contained in
(a) The state board of health, unless otherwise specified, shall administer this chapter and may add substances to or delete or reschedule all substances enumerated in the schedules in sections
20-2-23 ,20-2-25 ,20-2-27 ,20-2-29 or20-2-31 pursuant to the procedures of the state board of health. In making a determination regarding a substance, the state board of health shall consider the following:(1) The actual or relative potential for abuse; (2) The scientific evidence of its pharmacological effect, if known;
(3) The state of current scientific knowledge regarding the substance;
(4) The history and current pattern of abuse;
(5) The scope, duration and significance of abuse;
(6) The risk to the public health;
(7) The potential of the substance to produce psychic or physiological dependence liability; and
(8) Whether the substance is an immediate precursor of a substance already controlled under this chapter.
(b) After considering the factors enumerated in subsection (a) of this section, the state board of health shall make findings with respect thereto and issue a rule controlling the substance if it finds the substance has a potential for abuse. [Emphasis added.]
. . . . .
(d) If any substance is designated, rescheduled or deleted as a controlled substance under federal law and notice thereof is given to the state board of health, the state board of health shall similarly control the substance under this chapter after the expiration of 30 days from publication in the federal register of а final order designating a substance as a controlled substance or rescheduling or deleting a substance, unless within that 30-day period, the state board of health objects to inclusion, rescheduling or deletion. In that case, the state board of health shall publish the reasons for objection and afford all interested parties an opportunity to be heard. At the conclusion of the hearing, the state board of health shall publish its decision, which shall be final unless altered by statute. Upon publication of objection to inclusion, rescheduling or deletion under this chapter by the state board of health, control under this chapter is stayed until the state board of health publishes its decision.
We agree with thе Court of Criminal Appeals in its assessment of the constitutional validity of §§ (a) and (b), finding that these statutory terms do not constitute an unconstitutional delegation of legislative power.
Article IV, Section 43 of the Alabama Constitution of 1901 provides:
In the government of this state, except in the instances in this Constitution hereinafter expressly directed or permitted, the lеgislative department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them; the judicial shall never exercise the legislative and executive powers, or either of them; to the end that it may be a government of laws аnd not of men.
Article IV, Section 44, of the Alabama Constitution of 1901 states that:
The legislative power of this state shall be vested in a legislature, which shall consist of a senate and a house of representatives.
The application of these provisions to other instrumentalities has been the subject of litigation in other cases. One of these was State v. Vaughan, 30 Ala. App. 201, 4 So.2d 5; cert. den. 241 Ala. 628, 4 So.2d 9 (1941), сoncerning a regulation promulgated by the Commissioner of Conservation under the authority of the legislation creating the State Conservation Department. That legislation had authorized the Commissioner to “make reasonable rules and regulations . . . for the best interest of the conservation, protection and propagation of . . . fish . . . which rules and regulations shall have the force and effect of law. . . .” Under that statutory authority the Commissioner published the following rule:
The sale, offer or possession for sale of any game fish in the State of Alabama, regardless of where taken is hereby prohibited.
This Court held that this rule went beyond the power of the Commissioner and constituted an unlawful exercise of legislative power. In reaching that decision this Court recognized the absence of any “universal formula for determining in all cases the power which must be exercised by the legislative body itself, each case” being “controlled by the application of the general principle to a given situation.” Ibid. at 30 Ala. App. 204, 4 So.2d 5. It should be noted at this point that in Vaughan the Commissioner‘s “rule” was his own unilateral prоhibition. As will be shown, that circumstance is different from the situation here, for under this statute the legislature itself has asserted the complained — about proscription.
Whether or not a nondelegable legislative power to constitute criminal conduct has been granted to the State Board of Health
The validity of such statutes, says the Supreme Court of Massachusetts, has been long recognized, and may be upheld upon one or both of two grounds: “They may be considered as being within the principle of local self-gоvernment as to such matters; the board of health being treated as properly representing the inhabitants in making regulations, which often are needed at short notice, and which could not well be made, in all kinds of cases, by the voters in town meeting assembled. Perhaps some of these statutes may also be justified constitutionally, on the ground that the work of the board of heаlth is only a determination of details in the nature of administration which may be by a board appointed for that purpose; and that the substantive legislation is that part of the statute which prescribes a penalty for the disobedience of the rules which they make as agents performing executive and administrative duties.”
The McCarty case involved a legislative act creating a State Live Stock Sanitary Board which was authorized to make rules governing, inter alia, the disposition of livestock which might be quarantined. It required livestock owners to obey those rules pertaining to cleaning and disinfecting infected livestock and quarantined places. The Act continued by providing punishment to one for “failing or refusing, without just cause and legal excuse, to cleanse and disinfect any infested or infected place in which live stock arе kept, when requested or directed by the . . . Board. . . .” In commenting upon the power of the legislature as manifested in that Act, the Court stated, at 5 Ala. App. 217-18, 59 So. 543:
[T]he state has, through unquestionable constitutional channels, provided a system dealing with the preservation of the health of live stock and their protection from contagious diseases. . . . Realizing that conditiоns would naturally and in all probability arise which could not then be foreseen, and that the administration of the law was one coming peculiarly within the province of scientific experts, the Legislature, out of necessity, wisely left to the members of the board the making of such rules as would promote the efficient administration of the law; and itself provided, in section 7083 [the punitive section], a spur fоr the observance of the law. . . .
This paragraph was concluded with this pertinent sentence:
If the appellee is guilty in this case, and is punished under this affidavit, he will be punished by the will and by the command of the Legislature of Alabama, and not by the will or command of the Live Stock Sanitary Board, or any of its members, or of any other authority.
Commenting upon the delegation issue, the Court added:
While a legislative body cannot delegate its legislative power to make a law, it may delegate the power to an arm of the government to make and enforce regulations for the execution of a statute according to its terms. [Citations omitted.]
“The true distinction,” said Judge Ranney for the Supreme Court of Ohio, in Cincinnati, Wilmington & Zanesville R.R. Co. v. Commissioners, 1 Ohio St. 77, 88, in a declaration which, according to Sanborn, Circuit Judge, in St. L. Mer. Bridge Ter. R.R. Co. v. U.S., supra, has been repeatedly upheld by the Supreme Court of the United States, “is between a delegation of power to make the law, which necessarily involves a discretion as to
These principlеs are applicable in the case before us, and in their application we must be guided by the presumption of constitutionality accorded to legislative acts and our duty to sustain them unless we are convinced beyond reasonable doubt of their unconstitutionality. Riley v. Bradley, 252 Ala. 282, 41 So.2d 641 (1949); Taylor v. Hudson, 265 Ala. 541, 93 So.2d 143 (1957). Consonant with that duty, a statute which is susceptible to two interpretations, one of which would be constitutional, will be given the constitutional interpretation. Piggly-Wiggly of Jacksonville, Inc. v. City of Jacksonville, Ala., 336 So.2d 1078 (1976); Sanders v. State, 42 Ala. App. 67, 152 So.2d 439 (1963); Ala. State Federation of Labor v. McAdory, 246 Ala. 1, 18 So.2d 810 (1944).
The petitioner maintains that
We are not unmindful of the decisions of other jurisdictions to the contrary, i.e., Howell v. State, Miss., 300 So.2d 774 (1974); State v. Gallion, Utah, 572 P.2d 683 (1977); Sundberg v. State, 234 Ga. 482, 216 S.E.2d 332 (1975); State v. Rodriguez, La., 379 So.2d 1084 (1980), and State v. Johnson, S.D., 173 N.W.2d 894 (1970). But we must point out that some of those decisions either contained dissenting opinions concurring in the principles we have follоwed, are distinguishable on the wording of the pertinent statutes, or contain statutory interpretations different from our own. Additionally, there are cases from other jurisdictions in accord with our views, e.g., State v. Lisk, 21 N.C. App. 474, cert. den. 285 N.C. 666 (1974); see also 28 C.J.S.Supp. Drugs & Narcotics § 100 (1974). Therefore, we hold that
The petitioner‘s second attack concerns the рrocess by which the substances in question were placed in the controlled classification.
The petitioner was found guilty of possessing (1) codeine, (2) pentazocine [Talwin], (3) chlorazepate, and (4) d-amphetamine
A reading of the statute reveals that the classification procedures under (a) and (b) refer to different scheduling requirements. Paragraph (a) deals with the Board‘s сlassification of a substance upon its own initiative. In performing that function the Board is required to consider eight specified aspects, and thereafter under paragraph (b) to “make findings . . . and issue a rule controlling the substance if it finds the substance has a potential for abuse.”
Paragraph (d), however, entails an entirely different procedure, unrelated to the several aspects specified in paragraph (a). Under (d) the Board may rely upon a final control order published in the federal register, and 30 days from such publication may itself order control. Paragraph (d) allows for an objection to the control of such a substance and a public hearing following the Board‘s published оbjections. In its salient features, paragraph (d) adopts the procedures utilized by the federal government in determining a control status, a procedure significantly similar to that accomplished under our own law.
The drug pentazocine [Talwin] was controlled by action of the Board itself on August 15, 1973, as the following minutes of the Board оf Health establish:
Dr. Hamrick informed the Board that it had been brought to his attention by the State Board of Medical Examiners that the State Health Department had received its first death certificate for Talwin intoxication which had been documented by an autopsy and it was suggested that Talwin be placed in Schedule III Non-Narcotic. During discussion it was suggested Vаlium, Librum and some other items be included also. Several questions were raised about these being included and request was made that these last items be deleted from consideration at this time. Dr. Hamrick moved that
the SCPH recommend that Talwin be placed in Schedule III Non-Narcotic; Dr. Strandell seconded the motion, which was carried unanimously.
These minutes, it was conceded by the State Health Officer, constituted the “best” and “legal” record of that meeting.
It is clear from these minutes that the procedures outlined by the legislature in
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
TORBERT, C.J., and MADDOX, JONES, ALMON, SHORES and EMBRY, JJ., concur.
BLOODWORTH and FAULKNER, JJ., not sitting.