State ex rel. Scott v. Conaty
| Decision Date | 07 March 1972 |
| Docket Number | No. 13114,13114 |
| Citation | 155 W.Va. 718,187 S.E.2d 119 |
| Court | West Virginia Supreme Court |
| Parties | STATE ex rel. Tom SCOTT v. Robert C. CONATY, Judge, etc., et al. |
Syllabus by the Court
1. Regulation of the possession, sale and use of various drugs is within the police power of the State.
2. Delegation by the Legislature of the police power of the State to the West Virginia Board of Pharmacy to determine
which drugs are dangerous and habit forming is a valid delegation of such power, where the expertise of such board is required in this specific scientific field.
3. An indictment purporting to charge a felony, which is not sufficient for that purpose, but is sufficient to charge a misdemeanor is valid, and the use of the word 'feloniously' is surplusage.
4. 'An indictment for a statutory offense is sufficient if, in charging the offense, it adopts and follows the language of the statute, or uses substantially equivalent language, and plainly informs the arcused of the particular offense charged and enables the court to determine the statute on which the charge is founded.' Point 3, Syllabus, Pyles v. Boles, 148 W.Va. 465, 135 S.E.2d 692.
5. The provisions of Articles 8A and 8B, Chapter 16, Code of West Virginia, 1931, as amended, regulating the possession, sale and use of certain drugs are not arbitrary and unreasonable and do not violate the rights guaranteed to a person by the First, Eighth, or Fourteenth Amendments to the United States Constitution.
Herbert H. Henderson, Huntington, for relator.
Chauncey H. Browning, Jr., Atty. Gen., Willard A. Sullivan, Richard E. Hardison, Asst. Attys. Gen., Charleston, for respondents.
In this proceeding the relator, Tom Scott, seeks a writ of prohibition to prevent his prosecution in the Common Pleas Court of Cabell County upon five indictments returned by the grand jury on September 16, 1970, two of which, Nos. 8571 and 8575, charge him with violations of Chapter 16, Article 8B, Code of West Virginia, 1931, as amended. Said two numbered indictments, hereinafter designated the 8B indictments, charged the relator with 'unlawfully and feloniously' having in his possession on August 28, 1970, and August 24, 1970, respectively, a quantity of dangerous drugs, to-wit: 'lysergic acid diethylamide, commonly known as LSD.' Indictments numbered 8570 and 8572, hereinafter designated 8A indictments, alleged that the relator did 'unlawfully and feloniously have in his possession a narcotic drug, to-wit, cannabis, commonly known as marijuana' on August 24, 1970, and August 28, 1970, respectively. The fifth indictment, numbered 8573, likewise hereinafter designated an 8A indictment, alleged that on August 24, 1970, the relator 'did unlawfully and feloniously sell' the narcotic drug, cannabis, commonly known as marijuana.
The relator seeks to prohibit his prosecution under the foregoing indictments on the ground that the statutes defining the offenses charged against the relator are unconstitutional and therefore void.
Relator assigns the following as grounds for his contention that the statutes are unconstitutional:
(1) The 8B indictments are under a statute which attempts to impose regulations that are promulgated In futuro ad infinitum;
(2) The 8B indictments attempt to classify the offenses as felonies, when in fact, they are misdemeanors;
(3) The 8B indictments fail to fully and plainly inform relator of the character and cause of the accusation;
(4) The 8A indictments violate the First and Fourteenth Amendments of the United States Constitution, and
(5) The 8A indictments violate the Eighth Amendment of the United States Constitution.
Attention is called to the fact that Articles 8A and 8B, Chapter 16, Code of West Virginia, 1931, as amended, hereinafter referred to in this opinion, were those in effect at the time of relator's arrest and the indictment in 1970; and that these Articles, 8A and 8B, were repealed by Chapter 54, Acts of the West Virginia Legislature, Regular Session, 1971, effective June 10, 1971, which Chapter 54, known as the 'Uniform Controlled Substance Act' is now set forth in Chapter 60A of the Code.
On December 14, 1970, the relator filed a motion in the Common Pleas Court of Cabell County to quash the indictments on essentially the same grounds as here presented in his petition seeking the writ of prohibition. Following arguments on said motion the Judge of said court overruled the motion to quash and scheduled the relator to stand trial on said indictments, passing by the scheduled date of July 27, 1971, however, to permit relator to petition this Court for the writ of prohibition.
A rule to show cause was awarded by this Court on June 29, 1971, returnable September 1, 1971, but the proceeding was continued generally. The respondent filed his answer and demurrer, and oral argument was held on January 12, 1972, the basic issue being whether the statutes under which relator was indicted are unconstitutional.
Relator contends that the 8B indictments are unconstitutional in that they impose criminal sanctions by regulations promulgated In futuro ad infinitum.
Subsection 1 of Section 1 of Article 8B defines the term 'dangerous drug or drugs' as used in this Article as follows:
'(1) The term 'dangerous drug or drugs' means (a) the salts and derivatives of barbituric acid or compounds, preparations or mixtures thereof; (b) any derivative of barbituric acid which has beeen designated by the State board of pharmacy as being habit forming; (c) any drug which contains any quantity of amphetamine or any salt of amphetamine or any salt of an optical isomer of amphetamine or any substance which the State board of pharmacy, after investigation, has found to be, and by regulation designated as habit forming because of its stimulant effect on the central nervous system; and (d) any drug which, under the regulations promulgated in accordance with the Federal Food, Drug and Cosmetic Act of June, twenty-five, one thousand nine hundred thirty-eight, or any amendment thereto, is designated as dangerous or habit forming: Provided, that the term 'dangerous drug' shall not include any drug the manufacture or delivery of which is regulated by the narcotic laws of the United States or of this State: Provided, however, that any drug, compound, preparation or mixture containing the salts or derivatives of barbituric acid may be exempted from the provisions of this article by regulations promulgated by the State board of pharmacy and if so exempted, shall not be subject to the provisions of this article; . . ..'
Relator contends that the delegation under (c) was an unconstitutional delegation of legislative authority; that the incorporation by reference under (d) of the Federal Food, Drug and Cosmetic Act regulations is void for indefiniteness in that they are subject to constant change, so that it would be necessary to look to the federal regulations from time to time to determine if the West Virginia law was being violated; and that LSD is not habit forming nor addictive and therefore does not meet the standards of dangerous drug or drugs as set forth in Subsection 1 above.
A certified copy of the rules and regulations adopted by the Board of Pharmacy pursuant to Article 8B, Chapter 16, on March 8, 1968, and filed in the office of the Secretary of State on March 11, 1968, are filed with the answer of respondent. These rules and regulations list numerous drugs, including lysergic acid diethylamide and LSD, and also contains the statement by the Board of Pharmacy that these drugs have a potential for abuse of 'their depressant or stimulant effect on the central nervous system' and at the end of the list of drugs the regulations state:
'Now, therefore, be it enacted that the above defined and described drugs are henceforth To be considered dangerous or habit forming drugs in the State of West Virginia and therefore the use of such drugs shall be regulated by and be subject to the sanction of Chapter 16, Article 8--B of the West Virginia Code of 1931 as amended.' (Emphasis added.)
Relator relies upon the case of State of South Dakota v. Johnson, 84 S.D. 556, 173 N.W.2d 894 (1970), holding an act of the legislature unconstitutional which attempted to adopt regulations promulgated under the Federal Food, Drug and Cosmetic Act defining certain drugs, including LSD, as having potential for abuse.
The Johnson case, Supra, based its decision on the fact that the South Dakota State Drug Abuse Control Act attempted to adopt not only existing federal regulations promulgated under the Federal Food, Drug and Cosmetic Act, but all amendments thereto, thus attempting to adopt future federal acts and future federal regulations. In the Johnson case, the court recognized the well-settled rule that statutes adopting laws or regulations of...
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