People v. Henderson
Decision Date | 16 June 1982 |
Docket Number | No. 80-2976,80-2976 |
Citation | 437 N.E.2d 844,107 Ill.App.3d 257 |
Parties | , 63 Ill.Dec. 195 PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Pinky HENDERSON, Defendant-Appellant. |
Court | United States Appellate Court of Illinois |
Joseph E. Ettinger & Associates, Ltd., Chicago (Joseph A. Ettinger and Rick M. Schoenfield, Chicago, attorneys) for defendant-appellant.
Richard M. Daley, Chicago (Michael E. Shabat, Casimir J. Bartnik and David A. Shapiro, Chicago, of counsel), for plaintiff-appellee.
Defendant, Pinky Henderson, was charged in two informations with the offenses of possession of a controlled substance and delivery of a controlled substance. (Ill.Rev.Stat.1977, ch. 56 1/2 pars. 1401(c), 1402(b).) The first information charged that on September 1, 1978, defendant knowingly and unlawfully possessed a substance containing pentazocine, a controlled substance. The second information charged that on August 31, 1978, she knowingly and unlawfully delivered a substance containing pentazocine. Defendant waived her right to a trial by jury, and both charges were tried on a stipulated set of facts. The trial court found defendant guilty of both charges and sentenced her to concurrent periods of probation of thirty months.
The only issue presented on this appeal is whether section 4.1 of the Dangerous Drug Abuse Act (Ill.Rev.Stat.1977, ch. 91 1/2, par. 120.4-1) which permits certain members of the Dangerous Drugs Commission of the State of Illinois (commission), to delegate representatives to serve in their places by written notice to the commission constitutes an unconstitutional delegation of legislative power because no standards are provided for the selection of representatives. Section 4.1, in relevant part, provides:
(Emphasis added.)
The record on appeal contains a transcript of proceedings of the commission on August 1, 1978, when the commission purported to schedule pentazocine in Schedule II of the Illinois Controlled Substances Act ( ). That transcript, in turn, shows that of the eleven members specifically designated by section 4.1, only four were present at that meeting. The seven members who were authorized by statute to delegate a representative did so. At the meeting, the commission considered a resolution that pentazocine be included in Schedule II. After a lengthy hearing, the commission, composed of four members and seven representatives, voted unanimously that pentazocine be included in Schedule II. 1
Under the Controlled Substances Act, the commission may add substances to or delete or reschedule all controlled substances in the schedules established by the Act. (Ill.Rev.Stat.1977, ch. 56 1/2, par. 1201(a).) Defendant's argument is that this decision purporting to control pentazocine was void ab initio because the subdelegation of legislative power from individual members of the commission to their representatives was improper and unconstitutional. She contends that the charges against her should therefore be dismissed. For the reasons stated below, we disagree.
Defendant does not contend that the delegation of legislative power to the commission to add to or to delete from the schedules of controlled substances or to reschedule those already controlled is unconstitutional, when it is acting through its regular members. Such an argument would be untenable in light of People v. Avery (1977), 67 Ill.2d 182, 9 Ill.Dec. 645, 367 N.E.2d 79. In Avery, our supreme court held that the legislature, under section 201(a) of the Illinois Controlled Substances Act, properly delegated to the Director of Law Enforcement, the authority, with the concurrence and approval of the Dangerous Drugs Advisory Council, to so amend the schedules and that the legislature has provided intelligible standards to delimit that authority. The Director and Council have since been replaced by the commission, and the commission is subject to the same intelligible standards.
According to defendant, we can uphold the constitutionality of section 4.1 of the Dangerous Drug Abuse Act only if we construe the authority of commission members to delegate representatives to serve to be limited. Specifically, she contends that section 4.1 should be interpreted to allow representatives to serve in the place of commission members only when the function being performed does not involve a final legislative determination. Further, she contends that a decision to add a substance involves such a determination, and that function must be performed by the commission members named by the legislature. She notes, in this regard, the other powers, duties and functions of the commission enumerated in sections 5.1 through 5.14 of the Dangerous Drug Abuse Act ( ) include many which do not involve final legislative determinations. We are of the opinion, however, that section 4.1 is not susceptible to such a narrow construction. Nothing in the language of that section suggests that the authority of the commission members to delegate representatives should be so narrowly construed. And "[t]here is no rule of construction which authorizes a court to declare that the legislature did not mean what the plain language of the statute imports." (Illinois Power Co. v. Mahin (1978), 72 Ill.2d 189, 194, 21 Ill.Dec. 144, 381 N.E.2d 222.) Thus, we conclude that the legislature, in giving certain commission members the power to delegate a representative, intended that this power could be utilized by them, even when the commission is deciding whether to add, delete or reschedule controlled substances. Consequently, the delegation which occurred here was expressly permitted by section 4.1.
Therefore, we turn to the question of the propriety of the delegation. Defendant's position is that such delegation was improper because the legislature has not established any qualifications regarding the persons to whom commission members may subdelegate as representatives. She notes that section 4.1 only requires that a commission member give written notice to the commission of his delegation to a representative.
The legality of a subdelegation of an administrative agency's power is primarily a function of legislative intent. (Hall v. Marshall (E.D.Penn.1979), 476 F.Supp. 262, 272, affirmed 622 F.2d 578; see Fleming v. Mohawk Wrecking & Lumber Co. (1947), 331 U.S. 111, 67 S.Ct. 1129, 91 L.Ed. 1375.) As stated by Professor Davis: "When a statute is interpreted to authorize a subdelegation, a holding of unconstitutionality of the subdelegation is unlikely." (1 Davis, Administrative Law Treatise § 9.06, at 635 (1958); see also 1 Sutherland, Statutory Construction § 4.14 (1972); United States Steel...
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