State v. Grinstead

• Citation: 157 W.Va. 1001,206 S.E.2d 912
• Decision Date: 16 July 1974
• Docket Number: No. 13110,13110
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia v. Susan GRINSTEAD.

Page 912

206 S.E.2d 912

157 W.Va. 1001

STATE of West Virginia v. Susan GRINSTEAD.

No. 13110.

Supreme Court of Appeals of West Virginia.

July 16, 1974.

Syllabus by the Court

1. Although statutes adopting laws or regulations of other states, the federal government, or any of its agencies, effective at the time of adoption, are valid, attempted adoption of future laws, rules or regulations of other states, or of the federal government, or of its agencies, is unconstitutional as an unlawful delegation of the legislative power. W.Va.Const. art. VI, § 1 and art. V, § 1.

2. The Legislature cannot delegate its authority to enact criminal laws to an agency which is a unit of the executive branch of State government, nor can it, under the guise of colorable delegation, permit the Board of Pharmacy to adopt a federal law which has not been given prior approval by the Legislature.

3. West Virginia Code, chapter 16, article 8B, section 1(1)(d), as amended, is constitutionally invalid as an attempted delegation to the Board of Pharmacy of the power to declare unlawful drugs, the possession, sale or delivery of which may be designated as dangerous or habit forming by the federal government prospectively, In futuro, and without limitation; the decision of State ex rel. Scott v. Conaty, W.Va., 187 S.E.2d 119 (1972), to the contrary, is, in this respect, overruled.

4. The constitutional prerequisite to a valid statute is that the law shall be complete when enacted.

Albright & Richmond, Joseph P. Albright, Parkersburg, for appellant.

Chauncey H. Browning, Jr., Atty. Gen., Richard E. Hardison, Deputy Atty. Gen., E. Leslie Hoffman, III, Asst. Atty. Gen., Charleston, for appellee.

HADEN, Justice:

Susan Grinstead was convicted by a jury in the Circuit Court of Wood County for the possession, delivery and sale of a drug called lysergic acid diethylamide, commonly known as LSD. The appellant was indicted pursuant to the colorable authority of the Dangerous Drugs Act, West Virginia Code, chapter 16, article 8B, section 1 et seq. as amended. This Act and other prior drug control laws have since been repealed and wholly supplanted by the adoption of the Uniform Controlled Substances Act, effective July 1, 1971. Code 1931, 60A--1--101 et seq., as amended.

She appeals the conviction and an indeterminate sentence of one to five years in prison imposed by the court because she believes that the possession, delivery, or sale of LSD were not crimes under the Dangerous Drugs Act and that a regulation of the West Virginia Board of Pharmacy purporting to declare the possession, delivery or sale of this drug to be felonies under the Act was an invalid action accomplished in excess of the lawful powers of the Board of Pharmacy as delegated to it by the Legislature. Alternatively, she asserts that if the Board of Pharmacy acted within the scope of powers delegated to it by the Legislature, that the pertinent section of the Act itself is unconstitutional as an ineffectual attempt at delegation of a purely legislative power to another branch of the State government or to the federal government for 'completion' of a criminal law. Further, that if the Act in question should be sustainable as a proper delegation of legislative power, then by the terms employed in it purporting to define the objects of criminal proscription, it is unconstitutional on its face because the terms used in the Act, specifically 'dangerous drugs,' unaccompanied by qualifying legislative standards, definitions or safeguards, are unintelligibly vague and indefinite. As such, the employment of vague terms did not inform the accused of the crimes for which she was charged and convicted and also, deprived her of due process of law within the meaning of the United States and West Virginia Constitutions.

The defendant raised these questions of constitutionality by motions to quash made in advance of trial and preserved them by appropriate motions made throughout trial.

The facts adduced at the trial are irrelevant to the questions presented upon this appeal. Rather, our attention is directed to the statute in question, the actions of the Board of Pharmacy taken under colorable authority of the statute, the language of the indictment, and the substantive crimes charged to the defendant.

As previously noted, the appellant was indicted pursuant to alleged violations of the Dangerous Drugs Act, West Virginia Code, chapter 16, article 8B, section 1 et seq., as amended. Section 1, in effect at the time of appellant's indictment in 1970 provided, in part, 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 been 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 . . ..'

Section 6 (Code 1931, 16--8B--6, as amended) makes it a crime for any person not otherwise exempt under the article to possess, deliver or sell a dangerous drug defined in Section 1, Supra. Upon conviction of an accused, it provides that a first offender shall be punished with a fine not exceeding one thousand dollars or be subject to an indeterminate term of one to five years in prison, or both.

Legislative history in regard to criminal sanctions respecting traffic in drugs is important to the disposition of this case because every drug law enacted prior to 1971 supplemented a previous less inclusive measure on the same subject. In the context of construing other criminal statutes regulating homogenous activities, we recently held:

"Statutes relating to the same subject, regardless of the time of their enactment and whether the later statute refers to the former statute, are to be read and construed together and considered as a single statute the parts of which had been enacted at the same time.' Point 1 Syllabus, Delardas v. Morgantown Water Commission, 148 W.Va. 776, 137 S.E. 426.' Syllabus point 5, State v. Flinn, Barker, and Gentry, W.Va. (Case Nos. CC888, CC889, and CC890: decided July 2, 1974).

The Dangerous Drugs Act, Supra, was enacted by the Legislature in the year 1965. It was the final piecemeal supplement to earlier criminal and regulatory laws controlling traffic in certain drugs. Beginning in 1891 and continuing with amendments to the law through 1923, this State, by legislative enactment had made it a crime to sell or give away, without prescription, certain commonly known and prescribed drugs such as cocaine, alpha or beta eucaine, opium, morphine, heroin, chloral hydrate, and derivative preparations containing these drugs. Code 1931, 16--8--6 and 7 (Poisons and Narcotics (Act)). The breadth of that Act was augmented by the enactment of the Uniform Narcotic Drug Act in 1935 which, with later amendments, generally prohibited possession, sale or delivery of certain narcotic drugs comprising or derived from cocoa leaves (cocaine or its derivatives), opium, isonipecaine, and cannabis (commonly known as marijuana or 'pot'). Code 1931, 16--8A--1 et seq., as amended.

The additional necessity for the enactment of the Dangerous Drugs Act, Supra, was occasioned in 1965 by the increased traffic and abuse in barbiturates, amphetamines and other un-named drug substances '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; . . ..' Code 1931, 16--8B--1(1)(a), (b) and (c), as amended. There also, in a 'catch-all' category, the Legislature further expansively defined dangerous drugs to include '(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: . . ..' Id., Code 1931, 16--8B--1(1)(d), as amended.

From the foregoing review, it is apparent that as of the date defendant Susan Grinstead was indicted, the West Virginia Legislature had not seen fit to explicitly proscribe, prohibit or regulate the possession, sale or delivery of the drug called lysergic acid diethylamide and more commonly known as LSD. Moreover, none of the aforementioned Acts purported to regulate or prohibit possession, delivery or sale of those drugs which could be generally classified as hallucinogens. As will appear, the federal government also had taken no action in respect to the control of this particular hallucinogen prior to the enactment of the West Virginia Dangerous Drugs Act.

Midway in the decade of the 'Sixties' however, it became common medical and social knowledge that a new and terrifying drug known as LSD was being used, sold, and delivered indiscriminately. Medical findings, personal interviews with users, and graphic accounts by eye witnesses horrifyingly illustrated the dangerous, permanent, and sometimes fatal effects of this drug upon the human mind and body.

To control the menace posed by the traffic in, and abuse of, this new hallucinogenic substance, the United States Congress, in January 1968, amended Title 21, U.S.C. § 321(v) ( § 201(v) of the Food, Drug and Cosmetic Act, Supra)...