People v. Stark
| Decision Date | 12 April 1965 |
| Docket Number | No. 21394,21394 |
| Citation | 157 Colo. 59,400 P.2d 923 |
| Parties | The PEOPLE of the State of Colorado, Plaintiffs in Error, v. David Gladstone STARK and Larry Guy Peacock, Defendants in Error. |
| Court | Colorado Supreme Court |
Duke W. Dunbar, Atty. Gen., John E. Bush, Asst. Atty. Gen., Denver, Joseph J. Dolan, Dist. Atty., Stanley F. Johnson, John R. Mack, Lawrence B. Robinson, Deputy Dist. Attys., Boulder, for plaintiffs in error.
Ryan, Sayre, Martin & Brotzman, Boulder, Brenman, Ciancio, Epstein, Kranzler, Zerobnick and Zuckerman, Denver, Jim R. Carrigan, Boulder, Fugate, Mitchem & Hoffman, Denver, Hutchinson & Hutchinson, Boulder, Zarlengo, Zarlengo, Seavy & Mulligan, Denver, for defendants in error.
Theodore A. Borrillo, Chief Deputy Dist. Atty., Denver, amicus curiae, for Colorado District Attorneys' Ass'n.
The people of the State of Colorado caused this writ of error to issue in order that this court might pass upon the constitutionality of 48-5, C.R.S.1963, in so far as the provisions of that article prohibit the possession, use, and sale of the narcotic drug 'cannabis' (commonly known and frequently referred to as marijuana).
Defendants in error were accused of violating the aforementioned statute in an information filed in the district court of Boulder county. By motion to dismiss, they challenged the constitutionality of the Act in so far as it purported to prohibit the possession of cannabis. The trial court heard evidence offered by them in support of their motion. At the conclusion of the hearing, the trial court held the Act unconstitutional in so far as it purported to include cannabis within the coverage of the statute; the information was dismissed; and the defendants named therein were discharged.
The sections of the Act with which we are concerned are found in Chapter 48, Article 5, C.R.S.1963. The pertinent sections of the Act are as follows:
Section 1, (14)(a) "Narcotic drugs' means coca leaves, opium, cannabis, isonipecaine, amidone, isoamidone, ketobemidone, and every other substance neither chemically nor physically distinguishable from them, and any other drug to which the federal narcotic laws may apply, and any drug found by the state board of health, after reasonable notice and opportunity for hearing, to have an addiction-forming or addiction-sustaining liability similar to morphine or cocaine, from the date of publication of such finding by said state board of health.'
Section 2. 'It shall be unlawful for any person to manufacture, possess, have under his control, receive, sell, buy, conceal, prescribe, administer, dispense or compound any narcotic drug, except as authorized in this article, or to conspire to commit any of the acts prohibited.'
Section 20(5). 'Any person within the state of Colorado who shall be addicted to the use of narcotic drugs, or shall use narcotic drugs, or shall be under the influence of narcotic drugs, as defined in this article, except when such drugs are or have been administered by or under the direction of a person licensed and duly authorized by law to prescribe and administer narcotic drugs for bona fide medical needs, is a disorderly person and, shall, upon conviction, be confined in the county jail not less than six months, nor more than one year.'
For a violation of section 2 above, penalties are provided in section 48-5-20, C.R.S.1963, as follows: A first offense is punishable by a fine of up to $10,000.00 and imprisonment for not less than two nor more than fifteen years. For a second offense the fine is the same but imprisonment must be not less than five nor more than twenty years. A third, and all subsequent offenses, is punishable by terms of not less than ten nor more than thirty years. Anyone who induces or attempts to induce a person 25 years of age or under to use or carry a narcotic drug or to violate any provision of the Narcotic Drugs Law is punishable by life imprisonment for the first offense, and, for the second offense, by either life imprisonment or the death penalty.
The trial court in entering the judgment of dismissal upon the ground that the statute was unconstitutional, justified the same in the following language:
'The evidence offered by the witnesses this morning is indeed impressive, and cannot be wholly ignored. It does raise a question as to the inclusion of Cannabis within the definition of narcotic drugs when it names specifically other drugs and then says, '* * * and any drug found by the State Board of Health to have an addiction forming or addiction sustaining liability similar to morphine or cocaine.'
'That argument of course carries some weight. However the argument that is more impressive to me is the reference in the definition of the State of Colorado that says, '* * * and any other drug to which the Federal Narcotic Laws may apply.'
* * *
* * *
'I cannot help but come to the conclusion that the Statute is unconstitutional, especially on these last two arguments, and feel that it is an improper delegation of powers, to define a crime or state what shall be a crime for which the penalty will apply, and giving to the State Board of Health that power.
'The case in Colorado of Casey vs. the People states the Rule, and I feel that we are bound by that rule, that this was and is an unconstitutional delegation of power to make the law, and unconstitutional also when it concludes with the wording, or includes the wording. '* * * any other drug to which the Federal Narcotic Laws may apply.'
It is clear from the foregoing that the portion of the statute which the trial court found to be fatal to the whole, was that part thereof which included within the coverage of the law, '* * * and any other drug to which the federal narcotic laws may apply, and any drug found by the state board of health, after reasonable notice and opportunity for hearing, to have an addiction-forming or addiction-sustaining liability similar to morphine or cocaine, * * *.' This above-quoted language became a part of the law in 1957 by amendment to the pre-existing statute which in all other pertinent respects remained as it was originally enacted.
The trial court erred in holding that the amendment was not severable. In fact, the contrary is true. The tests of severability are clearly stated in City and County of Denver v. Lynch, 92 Colo. 102, 18 P.2d 907, 86 A.L.R. 907, and were approved in Riss & Co. v. McCaslin, 144 Colo. 133, 355 P.2d 304. Assuming, without so deciding, that the reference to the federal narcotic laws and the delegation of authority to the State Board of Health amounted to an unconstitutional delegation of legislative power, such a conclusion would not nullify the other portions of the statute which had been in the law for many years prior to the adoption of the amendment.
There is another cogent reason why the trial court erred in entering the judgment of dismissal on the ground under discussion. The defendants named in the information were not charged with an offense involving traffic in any drug which had been brought within the coverage of the statute by administrative act of the State Board of Health, or by reference to the federal narcotic laws. The drug involved in this case is 'cannabis,' and it is specifically placed in the prohibited category by act of the legislature. The defendants in the district court were not accused of any conduct which became unlawful by reason of action of the State Board of Health, or because of the content of any federal narcotics law. The applicable rule is stated in Rinn v. Bedford, 102 Colo. 475, 84 P.2d 827, where we find the following pertinent statement:
'* * * Secondly, no person is entitled to assail the constitutionality of a statute except as he himself is adversely affected. * * *'
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