People v. Urban

• Decision Date: 23 February 1973
• Docket Number: No. 2,Docket No. 13653,2
• Citation: 206 N.W.2d 511,45 Mich.App. 255
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Stephen URBAN, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 511

206 N.W.2d 511

45 Mich.App. 255

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Stephen URBAN, Defendant-Appellant.

Docket No. 13653.

Court of Appeals of Michigan, Division No. 2.

Feb. 23, 1973.

Released for Publication April 26, 1973.

Robert J. Hribar, East Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., George N. Parris, Pros. Atty., Thaddeus F. Hamera, Chief App. Lawyer, Mount Clemens, for plaintiff-appellee.

Before QUINN, P.J., and R. B. BURNS and BYRNS, ^* JJ.

BYRNS, Judge.

Defendant was convicted by a jury of unlawfully possessing d-lysergic acid diethylamide, commonly known as LSD, a hallucinogenic drug, contrary to M.C.L.A. § 335.106; M.S.A. § 18.1106. ¹

The evidence adduced at trial establishes that, on May 27, 1971, defendant had in his possession a sugar cube, wrapped in metal foil. Chemical analysis revealed that the sugar cube contained LSD.

On this appeal, defendant raises three assignments of error, relating to the trial court's refusal to ask a particular question during voir dire of prospective jurors; the prosecution's failure to prove that defendant had no license to possess LSD; and the chain of custody of the sugar cube. Our review of the record discloses that none of these alleged errors furnishes an appropriate basis for appellate relief. That review does, however, disclose an error not raised on appeal, which strikes at the heart of defendant's conviction. In fairness to the defendant, and in order to prevent a miscarriage of justice, we consider it Sua sponte. People v. Mattice, 38 Mich.App. 333, 196 N.W.2d 345 (1972). The error concerns the correct interpretation and application to the defendant of the statute involved.

I

The statute under which defendant was tried and convicted reads, in pertinent part:

'Any person * * * who * * * is in possession of d-lysergic acid diethylamide, peyote, mescaline and its salts, dimethyltryptamine, silocyn, or psilocybin is guilty of a felony unless in accordance with the federal food, drug and cosmetics act.'

M.C.L.A. § 335.106; M.S.A. § 18.1106; 1966 P.A. 215, immediately effective, July 11, 1966.

This statute makes possession of the drugs named therein unlawful, unless in accordance with a specified Federal law. In order to apply this act, we must look to the Federal statute to which reference is thus made. ²

At the time M.C.L.A. § 335.106; M.S.A. § 18.1106 was enacted, the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. § 301 et seq., contained numerous provisions dealing with 'depressant and stimulant drugs'. As amended by P.L. 89--74, 79 Stat. 226, 227 (effective July 15, 1966), 21 U.S.C. § 321(v)(3) defined 'depressant or stimulant drug' to mean:

'any drug which contains any quantity of a substance which the Secretary (of Health, Education, and Welfare), after investigation has found to have, and by regulation designates as having, a potential for abuse because of its depressant or stimulant effect on the central nervous system or its hallucinogenic effect * * *.'

The Secretary, in due course, delegated his authority to the Commissioner of the Food and Drug Administration, who designated certain chemical compounds by regulation as falling within the legislatively defined category.

'(c) The Commissioner has investigated and designates all drugs, unless exempted by regulations in this part, containing any amount of the following substances as having a potential for abuse because of their:

'(3) Hallucinogenic effect:

'Established name

'DMT

'LSD--25; LSD

'Mescaline and its salts

'Peyote

'Psilocybin; psilocibin

'Psilocyn, psilocin

Some trade and other names

Dimethyltryptamine

d-Lysergic acid diethylamide

'The listing of peyote in this subparagraph does not apply to non-drug use in bona fide religious ceremonies of the Native American Church; however, persons supplying the product to the church are required to register and maintain appropriate records of receipts and disbursements of the article.' 21 CFR (1966 ed.) § 166.3(c)(3), adopted by publication in 31 FR 4679, (Fed Doc 66--2910), effective May 18, 1966. ³

At the time M.C.L.A. § 335.106; M.S.A § 18.1106, was enacted with reference to the Federal Food, Drug, and Cosmetic Act, § 511(c) ⁴ of the Federal act, which also had been added by P.L. 89--74, dealt with possession of LSD as follows:

'No person, other than a person described in subsection (a) or subsection (b) (2), ⁵ shall possess any depressant or stimulant drug otherwise than (1) for the personal use of himself or of a member of his household, or (2) for administration to an animal owned by him or a member of his household. In any criminal prosecution for possession of a depressant or stimulant drug in violation of this subsection (which is made a prohibited act by section 301(q) (3)), The United States shall have the burden of proof that the possession involved does not come within the exceptions contained in clauses (1) and (2) of the preceding sentence.' (Emphasis supplied.)

By incorporating as it does the Food, Drug, and Cosmetic Act, M.C.L.A. § 335.106; M.S.A. § 18.1106, at the time of its enactment, should be interpreted ⁶ to read thus:

'Any person who is in possession of d-lysergic acid diethylamide, peyote (except for religious use by members of the Native American Church), mescaline and its salts, dimethyltryptamine, silocyn, or psilocybin, is guilty of a felony, unless (1) for the personal use of himself or of a member of his household, or (2) for administration to an animal owned by him or a member of his household. In any criminal prosecution for possession of the aforementioned drugs in violation of this act, the people shall have the burden of proof ⁷ that the possession involved does not come within the exceptions contained in clauses (1) and (2) of the preceding sentence.'

II

Two years after M.C.L.A. § 335.106; M.S.A. § 18.1106 was passed by our Legislature, Congress amended the Food, Drug, and Cosmetic Act with respect to 'depressant and stimulant' drugs to, in essence, abolish the exception previously made concerning possession for personal or household use. ⁸

Fully four years after the enactment of the relevant portion of M.C.L.A. § 335.106; M.S.A. § 18.1106, Congress passed the Comprehensive Drug Abuse Prevention and Control Act of 1970. ⁹ This act repealed certain existing provisions ¹⁰ of the Food, Drug, and Cosmetic Act and substituted a more comprehensive statutory scheme ¹¹ in their place. Suffice it to say that the effect of these latter amendments was to make it unlawful to possess or control any hallucinogenic drug unless pursuant to a valid prescription issued by a licensed practitioner, who has himself registered with the Attorney General.

III

The first question that must answered is, 'which version (1965, 1968, or 1970--1971) of the Federal Food, Drug, and Cosmetic Act declares the applicable standards to which a person must conform in order to fall within the exception provided by M.C.L.A. § 335.106; M.S.A. § 18.1106?'

As may be deduced from the facts summarized, defendant was tried and convicted under a theory inconsistent with the 1965 version of the Food, Drug, and Cosmetic Act (which was incorporated into M.C.L.A. § 335.106; M.S.A. § 18.1106, by specific reference), that is, without requiring the prosecutor to prove that defendant does not fall within the terms of any exceptions therein provided. The prosecutor produced no evidence whatsoever that defendant's possession was for other than personal or household use.

What was the intent of the Legislature? The Legislature, in drafting M.C.L.A. § 335.106; M.S.A. § 18.1106 so as to specifically refer to the Food, Drug, and Cosmetic Act, cannot have intended to grant Congress the power to, in effect, change the Michigan statute by amending or repealing the Food, Drug, and Cosmetic Act.

To succinctly state the general rule, statutes which incorporate existing Federal statutes, rules, and regulations by reference are valid and constitutional. Pleasant Ridge v. Governor, 382 Mich. 225, 243, 169 N.W.2d 625 (1969); 16 C.J.S. Constitutional Law § 133, p. 563.

But state legislation which adopts by reference Future legislation, rules, or regulations, or amendments thereof, which are enacted, adopted, or promulgated by another sovereign entity, constitutes an unlawful delegation of legislative power. Lievense v. Unemployment Compensation Commission, 335 Mich. 339, 341--342, 55 N.W.2d 857 (1952); Dearborn Independent, Inc. v. Dearborn, 331 Mich. 447, 454 ff, 49 N.W.2d 370 (1951); Colony Town Club v. Michigan Unemployment Compensation Commission, 301 Mich. 107, 113--114, 3 N.W.2d 28 (1942); People v. De Silva, 32 Mich.App. 707, 713--714, 189 N.W.2d 362 (1971); see also Const.1963, art. 4, § 1; Coffman v. State Board of Examiners in Optometry, 331 Mich. 582, 587--589, 50 N.W.2d 322 (1951); G. F. Redmond & Co. v. Michigan Securities Commission, 222 Mich. 1, 5, 192 N.W. 688 (1923); In re Brewster Street Housing Site, 291 Mich. 313, 340, 289 N.W. 493 (1939); People v. Collins, 3 Mich. 343, 344--345 (1854); Minor Walton Bean Co. v. Unemployment Compensation Commission, 308 Mich. 636, 653--654, 14 N.W.2d 524 (1944).

Thus, M.C.L.A. § 335.106; M.S.A. § 18.1106 cannot be construed to refer to the 1968 or 1970--1971 version of the Food, Drug, and Cosmetic Act, since these laws were enacted after the date on which the Michigan statute was passed by the Legislature.

Alternatively, if M.C.L.A. § 335.106; M.S.A. § 18.1106 is construed to refer to the Federal Food, Drug, and Cosmetic Act as it existed at the time the Michigan statute passed the Legislature and was signed into law, which construction we hereby adopt, as we must, in order to avoid unconstitutionality, then the statute reads as paraphrased Supra (Part I). In that case, the prosecutor had the burden of proving that defendant's possession of d-lysergic acid diethylamide was not for his personal or household use.

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