State v. Johnson, 10755
| Decision Date | 23 January 1970 |
| Docket Number | No. 10755,10755 |
| Citation | 84 S.D. 556,173 N.W.2d 894 |
| Parties | STATE of South Dakota, Plaintiff, v. Albert JOHNSON, a/k/a Albert Staltmanis, Defendant. |
| Court | South Dakota Supreme Court |
Gordon Mydland, Atty. Gen., Leonard E. Andera, Asst. Atty. Gen., Pierre, for plaintiff.
David V. Vrooman, Sioux Falls, for defendant.
By an information filed in the Circuit Court of Minnehaha County, the defendant was charged with selling or delivering to 'Thomas Sorenson two (2) capsules containing a hallucinogenic drug, * * * Lysergic Acid Diethylamide, commonly known as LSD, * * *' in violation of the provisions of Chapter 95 of the 1968 Session Laws for the State of South Dakota.
By demurrer the defendant asserts that Section 1(d)(3) of Chapter 95, Session Laws 1968, now SDCL 1967 39--17--21(4)(c) which reads 'Any drug which contains any quantity of a substance designated by regulations promulgated under the federal act as having a potential for abuse because of its depressant or stimulant effect on the central nervous system or its hallucinogenic effect' is unconstitutional as an unlawfull delegation of legislative authority. The crime alleged is predicated on this portion of our State Drug Abuse Control Act.
The trial court overruled the demurrer and we allowed an intermediate appeal under SDCL 1967 15--26--1(6). Oral argument was heard on January 21, 1970.
The statute does not classify Lysergic Acid Diethylamide or LSD as a hallucinogenic drug and reference to regulations promulgated under the federal act must be made to determine if a crime has been charged. SDCL 1967 39--17--21(7) says 'The term 'federal act' designates the Federal Food, Drug, and Cosmetic Act, and all amendments.' Sections 301 to 392, Title 21, U.S.C.ode. Under the federal act authority to promulgate regulations is vested in the Secretary of Health, Education and Welfare after a hearing and regulations promulgated are included in the Federal Register. Title 21, U.S.C. § 371.
In a recent case, Schryver v. Schirmer, S.D., 171 N.W.2d 634, we said at page 636:
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People v. Turmon
...delegation of state legislative authority to a federal agency. See State v. Rodriguez, 379 So.2d 1084 (La., 1980); State v. Johnson, 84 S.D. 556, 173 N.W.2d 894 (1970); State v. Grinstead, 157 W.Va. 1001, 206 S.E.2d 912 We find therefore that Sec. 7204 does not require the board to adopt th......
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People v. O'Neal
...1084 (La.1980); Howell v. State, 300 So.2d 774 (Miss.1974); State v. Krego, 70 Ohio Misc. 14, 433 N.E.2d 1298 (1981); State v. Johnson, 84 S.D. 556, 173 N.W.2d 894 (1970); State v. Gallion, 572 P.2d 683 (Utah, 1977). However, we point out that the Turmon Court's reliance on Sundberg v. Stat......
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State v. Moschell, No. 22464-22466.
...out the legislative policy set forth in that statute. [¶ 22.] Defendants miscalculate in relying on our holding in State v. Johnson, 84 S.D. 556, 173 N.W.2d 894 (1970). In Johnson, we held unconstitutional a statute that "attempt[ed] to adopt any and all regulations and changes therein prom......
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State v. Reed
...683 (1977); Sundberg v. State, 234 Ga. 482, 216 S.E.2d 332 (1975); State v. Rodriguez, La., 379 So.2d 1084 (1980), and State v. Johnson S.D. , 173 N.W.2d 894 (1970). But we must point out that some of those decisions either contained dissenting opinions concurring in the principles we have ......