The defendant was charged with possession of one-half pound or more of mixtures or substances containing cannabis in violation of section 28-472.03, R. S. Supp-., 1969. The trial court sustained a motion to quash the information on the ground that the law was unconstitutional, and ordered thе defendant discharged. The State then obtained leave to docket error proceedings under section 29-2315.01, R. R. S. 1943, to review the order of the district court.
Prior to 1969, cannabis wаs defined as a narcotic drug, and unlawful possession of cannabis was a felony punishable under section 28-470, R. R. S. 1943. In 1969, the Legislature enacted L.B. 2 (Laws 1969, c. 197, p. 793) which related specifiсally to cannabis, and its resin. Unlawful possession of less than a specified amount of сannabis was made a misdemeanor. § 28-472.04, R. S. Supp., 1969. The act further provided that the penalties provided in sections 28-472.03 and 28-472.04 were to be applicable to all violations of the act and all charges pending on April 11, 1969. § 28-472.05, R. S. Supp., 1969.
It is clear that L.B. 2 amended section 28-470, R. R, S. 1943, by implication. It did not comply with Article III, section 14, of the Nebraska Constitution, which provides that “no law shall be amended unless the new act contain the section or sectiоns as amended and the section or sections so amended shall be repealed.”
The State contends that the constitutional requirement was not applicable because L.B. 2 was an independent act. It is well established that the constitutional provision is not applicable to an independent act complete in itself. Blair Co. v. Amеrican Savings Co.,
The difficulty with L.B. 2 is that it was not complete *151 in itself insofar as applicable to the subject matter properly embraced within its title. If it is assumed that the subject matter of L.B. 2 was “marihuana abuse,” as suggested by the State, the act cannot properly be considered as complete in itsеlf. Cannabis is still defined as a narcotic drug in subsection (14) of section 28-451 as amended by L.B. 2 (§ 28-451, R. S. Supp., 1969) and is subject to the requirements, restrictions, and exemptions of the Narcotic Drugs Act.
Section 28-472.03, R. S. Supp., 1969, refers to knowing and
unlawful
pоssession of cannabis. In order to ascertain what is unlawful possession of cannabis, it is nеcessary to consider the various exemptions contained in the Narcotic Drugs Aсt. Instead of being an independent act complete in itself, L.B. 2 relates itself to othеr existing statutes dealing with the same subject matter. As stated in State ex rel. Beal v. Bauman,
The State further contends that L.B. 2 worked a repeal by implication, as distinguished from an amendment, and that repeals by implicаtion are not subject to the constitutional requirement. We think that a proper interрretation to the effect of L.B. 2 upon section 28-470, R. R. S. 1943, is that section 28-470 was amended but not repealed by L.B. 2. Section 28-470, R. R. S. 1943, was amended during the 1969 session by L.B. 1385 (Laws 1969, c. 218, p. 839) which became effеctive more than 3 months after L.B. 2. Section 28-470, as amended by L.B. 1385, provides in part: “Except as provided in sections 28-472.03 and 28-472.04, * * § 28-470, R. S. Supp., 1969. The exception inserted in section 28-470 was a legislаtive recognition of the amendment of section *152 28-470 by L.B. 2 but not a repeal of the section.
As stated in Chicago, B. & Q. R.R. Co. v. County of Box Butte,
The finding of the trial cоurt that L.B. 2, including section 28-472.03, R. S. Supp., 1969, was invalid was correct. The remaining question is whether the informаtion should have been quashed and the defendant discharged. Ordinarily, the invalidity of an amendаtory act leaves the original statute in force. See State ex rel. Baldwin v. Strain,
Seсtion 28-470 as amended by L.B. 1385 (28-470, R. S. Supp., 1969) on its face appears to be inapplicable to any case in which section 28-472.03, R. S. Supp., 1969, is applicable. However, sinoe section 28-472.03, R. S. Supp.., 1969, was invalid for any purpose and was as inoperative as though it had never been passed, the reference to section 28-472.03, R. S. Supp., 1969, at the beginning of sectiоn 28-470, R. S. Supp., 1969, was surplusage. The result is that the defendant was subject to prosecution under section 28-470, R. S. Supp., 1969, which was in effect on August 20, 1969, the date alleged in the information. The information should not have been quashed and the defendant should not have been discharged.
Exceptions sustained.