*1 693 asserting his failure In summary, from GEICO sent estopped Evans the can- premium due.3 tender the cellation required by notice the insurance policy and Minn.St. 65B.14 to 65B.21. Sec- v, Erickson, Seavey on placed is Reliance tion 65B.18 judgment embodies a (1955). 889 N.W.2d proof receipt that aof cancellation notice ground, court There, as alternative an unnecessary, proof mailing is that is suf- it established that has been “where held protect ficient to the interest of the insured. practice is custom and that it Appellants have presented persuasive not pay- of the time for give notice insurer argument making exception this case an premium renewal ment judgment. to that acquired by an insured such custom insurer, the has a dealings insured with Affirmed. notice, and, in the on such right rely thereof, may ter- not be policy
absence the in- giving, or forfeited
minated without such some notice that custom
sured 243, 69 abandoned.” 244 Minn. had 897. The insured dealt with
N.W.2d and was company for
the insurance receiving renewal notices
accustomed policy periods. semi-annual his Minnesota, Appellant, STATE of Although the circumstances here, Seavey Seavey those are similar controlling. necessarily Estoppel not KING, Cleora Olive Tina a.k.a. discre addressed equitable doctrine King, Respondent. court, on of the whose decision turns tion No. 46842. case bar. The district facts of the at not estab court found that “Evans [had] Supreme Court Minnesota. receiving placed that on lished reliance was Aug. 12, 1977. finding This a cancellation notice.” light clearly erroneous in of the fact not premium no three of the earlier five estab triggered payment. GEICO
tices notice was premium
lished that the final suggest do not appellants
mailed and Having pre not received. received indicating the due for the
mium notice date reasonably premium, Evans could waiting can ignorance while for the
claim un delay His is the more
cellation notice. 26,1973, January when the
reasonable cov expired. The for which
policy accident
erage sought occurred months after
this date.4 Juarez, In Pesina v. argument light Appellants this cast (1970), premised estoppel But N.W.2d 109 the court renewal notice never sent GEICO. representation company agent’s had neither a contractual on an insurance to a since statutory duty policyholder she would receive notice send a renewal if nor renewal notice, policy nonpayment subsequent borrowing money was cancelled her Minn.St.1971, 65B.17(b), premiums, policy preparation receipt and had to renew her past Evans, dealing not done in the so the notice. argument must on the cancellation focus notice, assuming receipt arguendo prompted payment.
(cid:127) controlled, stances should be and whether delegation is an such unconstitutional abdi- cation of power. July 6,
On nated a under *3 by the of law Bureau and Dan- Narcotics gerous Drugs. 38 Fed.Reg. 18014. There- board, acting after, to pursuant 152.- § 02, 12, hearing subds. 8 and held to consider the inclusion of phentermine drug under Schedule IV our In statute. statutory adherence to standards and rulemaking procedures compliance with of the Administrative Procedure 15.0412, Reg- Pharmacy St. Revised § filed ulation 51 was with the and the commissioner administra- state tion on November 1974. in this Included designation phenter- was the not, controlled It mine as a substance. however, until after been defendant had legislature charged that the amended Minn. 152.02, expressly to § St. drug. as phentermine include a Schedule IV Paul, Atty. Gen., 4. Spannaus, St. § Warren Randall, County C. Atty., Steven William 4, 1976, granted May trial court On DeCoster, County appellant. Atty., Asst. motion to on the defendant’s dismiss Falvey, Ramsey County Pub- E. William ground phentermine Flinsch, Asst. Defender, E. lic and Suzanne court found did not crime. The constitute Defender, Paul, respondent. Public St. legislature had neither the intent delegate to nor the constitutional ROGOSHESKE, PETER- Heard before rulemaking authority the board the JJ., SCOTT, considered and SON, statutory substances to the add controlled en the court banc. decided Rather, the court reasoned that schedules. 152.02, 13, empowered the board § ROGOSHESKE, Justice. annual recommendations to only to make dismiss- appeals from an order The state amending statutory charging defendant ing complaint persuaded that the trial We are schedules. 21,1976, with the unlawful April erroneously interpreted pertinent court phentermine, provisions of our statutes for the control expressly listed drugs prohibited chapter under 152.02, 5. such in Minn. St. compelled are to reverse. therefore defendant, charge against Prior to large adopted part Minnesota had (board) State Board Act. L. Controlled the Uniform Substances a controlled substance nated major purposes c. 937. One delegated con- authority legislatively uniformity “to achieve between this act was 152.02, 12. 8 and in Minn. St. subds. tained several the laws of the States' and those questions are whether principal raised government.” 9 U.L.A. 146. Federal subds. intended rulemaking act, closely patterned after the This give the board 8 dangerous law, sub- narcotic and U.S. authority determine narcotic what seq., adopted by C.A. now et stance. Such order pursu- shall be filed ant states. M.S.A. Cumulative An- Statutes, Minnesota 15- Section Part, period, nual If within that 30 p. day Pocket state board of pharmacy objects to inclu- enacted, As originally sion, deletion, rescheduling, or it shall 1 to established five publish the objection reasons for and af- categorized specific schedules that con ford all parties interested an opportunity phar according trolled substances their to be heard. At the conclusion of the macological empow effect. Subdivision 8 hearing, pharmacy state board of ered board to determine what sub decision, shall publish its which shall be stances should be added or deleted from subject provisions of Minnesota these schedules the future and enumerat 1971, Chapter Statutes 15.” ed was required the factors *4 purpose manifest of this amendment making consider in its determination. Sub promote was to greater uniformity between division 12 the to instructed board conform drug the control of this state and rulemaking provisions contained in that of government.1 the Federal Act, the Administrative Procedure 15.- § We initially question consider the required any changes subd. which in rulemaking whether the provisions for the to preceded by schedules be notice and designating controlled substances contained an opportunity persons for interested to be § amended, and heard. To assist the board in scheduling can be language reconciled with the found substances, 11 provided subd. in subd. arguably empowers which the the advisory creation of an council. Both advisory only and council to make the advisory board and the council were recommendations amend by to required subd. 13 make annual recom ments. Contrary to the finding of the trial legislature mendations to the concerning court, legislature we hold that the intended to chapter amendments by subds. 8 and delegate 12 to rulemaking legislature the amended Minn. authority to the board to revise the statuto 1971, 152.02, 12, by inserting § the ry enumerating schedules controlled sub 1973, c, following (L. paragraph 3): § stances. legislature Had the oth intended any designated, “If is re- erwise, there would have been no need to scheduled, or deleted as a controlled sub- direct undergo the board to the elaborate stance under federal law and notice provisions rulemaking contained the Ad given the thereof to state board of ministrative Moreover, Procedure Act. the pharmacy, state board of pharmacy subds. 12 and 13 are dissimilar in construc similarly shall control the substance un- tion. While 12 speaks in terms of the 1973, chapter der the [Laws 693] alone, authority of the board subd. 13 treats expiration days publication from both the board and the advisory council as register the federal of a final order legislative advisors. We believe that subd. nating a substance as a controlled sub- 13 was only meant to affect those matters rescheduling stance or or a deleting relating drug sub- generally control and was closely paralleled cy] objects inclusion, 201(d) 1. This amendment rescheduling, or dele- case, the Uniform [appropriate person Controlled Substances which tion. In that the or provides: any designated, agency] publish “If objection substance is re- shall the reasons for scheduled, or parties opportunity deleted controlled substance and afford all interested given under Federal law notice and thereof is be hearing, heard. At the conclusion of the [appropriate person agency] [appro- [appropriate person the priate person or agency] pub- the the or shall agency] similarly decision, or shall control lish his [its] which shall be un- expira- by the substance under this Upon Act after the publication less altered statute. days publication objection inclusion, tion of 30 from in the Federal rescheduling, or deletion designating of a final a [appropriate person order sub- under this Act agency], the or stayed stance as a controlled substance or reschedul- control under this Act is deleting substance, ing [appropriate person or unless agency] publishes within that the or day period, [appropriate person agen- the or his decision.” [its] the As a matter bearing public policy, board. any not intended mere drugs.2 Lastly, legislature has rescheduling of determined that it is unlaw- may periodically legislature possess drugs ful to produce fact certain listings sub- of controlled specific psychic deleterious effects that lead to revise as was subds. 2 to physiological dependence, stances and has artic- to include ulated, parameters done broad is not phentermine as categorizing be used in these substances in intended legislature an indication the various schedules. 8 more Subdivision rulemaking of the authority limit sets the specifically standards the board board. to consider: “ * * * The poten- actual or relative reject the trial court’s alsoWe abuse, tial scientific evidence of prevented finding that effect, known, pharmacological if nar delegating its to schedule from Const, state of current scientific re- 3, 1. by Minn. art. cotic substances substance, garding history may delegate While the abuse, pattern scope, current dura- law, may complete authority to make tion, abuse, significance the risk to an administrative constitutionally authorize health, potential of the sub- will those facts body to determine produce psychic physiological stance to or stated effective. As was make a statute dependence liability, and whether Delmont, 228 Minn. Lee *5 an a precursor substance is immediate of 530, (1949): 538 N.W.2d “ * * * already controlled under this ascertain power ” * * * section. a law facts, automatically brings which terms, by its own Many require precisely virtue of of these factors that operation
into
or annul
pass, modify,
type
expert analysis
the
of
that an administra-
is not
reasonably
the law furnishes a
composed mainly
pharmacists
If
tive
of
a law.
board
which
of action
or standard
policy
provide.
clear
able to
the board has
best
Since
the
of-
guides
administrative
employed to
facts
only
controls
been
ascertain those
ascertaining
fácts
operative
in
ficers
that will make
152.02
or circumstances
* * * the
applies,
the law
to which
we hold that
the statute does
operational,
to the
delegated
discretionary power
delegation
pure legislative
a
not sanction
legislative.”
commission is not
or
power.3
chosen to view
We have further
record,
on
defendant
Finally,
this
facilitate
liberally in order to
delegations
complain
heard to
that she was
cannot be
which,
drug
administration of laws
like
phen-
that the
possession
without notice
control,
complex
application.
their
are
deeply rooted
was a crime.
It is a
termine
Krebes,
Minn.
Minneapolis v.
303
City of
jurisprudence
ignorance
that
concept of our
v.
(1975); Anderson
219,
617
226 N.W.2d
Arming-
no
v.
of the law is
excuse. State
Highways,
267
Commissioner
(1878);
4
Black
ton, Minn. 29
and W.
25
(1964).
746
9 A.L.R.3d
126 N.W.2d
(Jones ed.)
stone,
*27. All
Commentaries
society
pre
an
are
entirety, we members of
ordered
Viewing
152.02 in its
least,
not,
or,
to know the law
at
sumed either
are convinced
those
acquainted
relin
themselves with
unconstitutionally
by
8 and
likely
their usual
that are
to affect
lawmaking power
laws
quished its exclusive
upheld
from other
that have
3. For cases
states
amendment
to §
The 1973
constitutionality
delegations
possession
a small
similar
decriminalized
which
patterned
example
drug
the Uni
marijuana,
statutes
of that
control
amount
policy legislation
v.
recom-
form Controlled Substances
see Cassell
type
that the
of broad
State,
(1975);
Ala.App.
designed
317
348
required
So.2d
subd. 13 were
mendations
Lisk,
N.C.App.
notice.4 State, In Cassell 55 Ala.App. (1975),
Reversed. So.2d majority, cited Alabama court noted that under its con- OTIS, (dissenting). Justice law, trolled substance prohibited when a drug was included by the State Board of Because, my opinion, respondent Health, regulation was, as required by King unconstitutionally denied ade- statute, published or in one more newspa- quate notice that of phentermine pers general circulation in the state. April 21, 1976, was a on I crime would case, the instant had the adopted affirm the decision the trial court. by the State Board of on Novem- Pursuant to subds. 8 and 8,1974, published ber in our metropoli- 8,1974, Board of November State papers, tan a better case could be made for *6 secretary with the filed state meeting the requirement of constitutionally and the commissioner of administration a mandated notice. regulation whereby phentermine was in- But, my opinion, to hold filing cluded as a IV controlled sub- regulation with the of state 152.09, 1(2), stance. Under Minn. St. subd. with commissioner of administra- 152.15, 1(3), possession St. tion constitutes notice which satisfies due phentermine thereby became a crime process where the authorized maximum punishable aby years’ maximum of 3 im- penalties are imprisonment $10,000 prisonment opin- fine. my ? $10,000 unreasonable, fine is illogical, and ion, such notice was no notice at all in Accordingly, unconscionable. I would af- practical effect.1 firm the trial court’s order of dismissal. apply everyone To the doctrine that presumed of the law thoroughly misled this defend- guidelines
ant had she looked for in our day
statutes. On the before defendant
charged having phenter- Compliance 4. The district court file reveals that defendant’s with the Administrative Proce- prescribed by con- discovered dure Act Minn. St. package undergar- cealed in a small foil in her did not at the time of this offense during person require published ments a search of her while she be in the county jail pursuant was confined to a State since that amendment to Minn. 10-day soliciting. sentence not effective July 1976. L. § 2.