State v. Thompson, 62446

• Citation: 627 S.W.2d 298
• Decision Date: 09 February 1982
• Docket Number: No. 62446,62446
• Parties: STATE of Missouri, Appellant, v. Irving E. THOMPSON, Respondent.
• Court: United States State Supreme Court of Missouri

Page 298

627 S.W.2d 298

STATE of Missouri, Appellant, v. Irving E. THOMPSON, Respondent.

No. 62446.

Supreme Court of Missouri, En Banc.

Feb. 9, 1982.

John Ashcroft, Atty. Gen., John C. Reed, Asst. Atty. Gen., Jefferson City, for appellant.

James M. Martin, St. Louis, for respondent.

HIGGINS, Judge.

This appeal under Rule 30.02 and § 547.210, RSMo 1978, charges error to dismissal of the information as insufficient. Irving E. Thompson was charged by the State of Missouri with illegal possession of pentazocine, ¹ a schedule IV controlled substance, in violation of § 195.240, RSMo 1978. The trial court ruled that § 195.015.4, RSMo 1978, the section under which pentazocine was placed on the schedule IV list of controlled substances, is "an unconstitutional and illegal delegation of power by the Missouri General Assembly" because it "provides for the inclusion of substances as 'controlled substance drugs' automatically if controlled by the Federal Government." Reversed.

The Drug Enforcement Administration, United States Department of Justice, published a final order placing pentazocine on the list of controlled substances in schedule IV, 44 Fed.Reg. 7-2169 (January 10, 1979). In response, the Bureau of Narcotics and Dangerous Drugs, Missouri Division of Health, amended the schedules of controlled substances by a rule which recognized the federal action and indicated that the Missouri Division of Health did not object to the controlling of the substance, and thus, pursuant to § 195.015.4, RSMo 1978, pentazocine was similarly controlled in this state, effective February 9, 1979. 4 Mo.Reg. 3-251 (March 1, 1979). On September 18, 1979, the state filed the information in question. A trial was conducted and the respondent was found guilty by a jury; the trial court sustained respondent's motion for a new trial. Thereafter, respondent filed a motion to dismiss alleging that § 195.015.4 was an unconstitutional and illegal delegation of powers in violation of art. II, § 1, and art. III, § 1 of the Missouri Constitution; the trial court sustained respondent's motion.

Section 195.015.4, RSMo 1978 provides:

If any substance is designated, rescheduled, or deleted as a controlled substance under federal law ² and notice thereof is given to the division of health, the division of health shall similarly control the substance under sections 195.010 to 195.320 after the expiration of thirty days from publication in the federal register of a final order designating a substance as a controlled substance or rescheduling or deleting a substance, unless within that thirty day period, the division of health objects to inclusion, rescheduling, or deletion. In that case, the division of health shall publish the reasons for objection and afford all interested parties an opportunity to be heard. At the conclusion of the hearing, the division of health shall publish its decision, which shall be final unless altered by statute. Upon publication of objection to inclusion, rescheduling or deletion under sections 195.010 to 195.320 by the division of health, control under sections 195.010 to 195.320 is stayed until the division of health publishes its decision.

Id. ³ The judgment of the trial court is examined in light of the presumed constitutionality of the statute. State ex rel. Williams v. Marsh, 626 S.W.2d 223 (Mo. banc 1982); Chamberlin v. Missouri Elections Commission, 540 S.W.2d 876 (Mo. banc 1976). Chapter 195 was adopted to establish uniformity among the controlled substance laws of Missouri and other states and between these state and federal laws, see notes 1 and 2. Convictions for the possession, delivery, sale, and utterance of forged prescriptions for substances controlled pursuant to § 195.015.4, RSMo 1978 have been affirmed. E.g. Selvey v. State, 578 S.W.2d 64 (Mo.App.1979); State v. Harris, 564 S.W.2d 561 (Mo.App.1978); State v. Holden, 548 S.W.2d 194 (Mo.App.1977); State v. Williams, 546 S.W.2d 533 (Mo.App.1977); State v. Winters, 525 S.W.2d 417 (Mo.App.1975); State v. Mulkey, 523 S.W.2d 145 (Mo.App.1975). ⁴

I.

Article II, § 1, Mo.Const. provides:

The powers of government shall be divided into three distinct departments-the legislative, executive, and judicial-each of which shall be confided to a separate magistracy, and no person, or collection of persons, charged with the exercise of powers properly belonging to one of those departments, shall exercise any power properly belonging to either of the others, except in the instances in this constitution expressly directed or permitted.

Article III, § 1, Mo.Const. provides:

The legislative power shall be vested in a senate and house of representatives to be styled "The General Assembly of the State of Missouri."

In State v. Bridges, 398 S.W.2d 1, 5 (Mo. banc 1966), this Court held, "that an enactment which delegates authority is constitutional if a definite standard is provided and no arbitrary discretion is involved." In response to a charge of unlawful delegation of power, this Court upheld the former system under which the Division of Health was authorized to identify and list drugs, the possession of which was criminal. This Court found the statutory definitions sufficiently specific to safeguard against the exercise of arbitrary discretion. Id.

Respondent asserts that § 195.015, RSMo 1978 "provides substantial standards for the guidance of its administrative body until we come to section 4, which avoids the hearing, consideration and findings section by sub-delegating the authority to the Federal Government" and "that the automatic inclusion of substances by inaction of the Missouri agency avoids the legislative safeguards and guidelines for control over the power to make acts a crime." In his view, § 195.015.4, RSMo 1978 requires the automatic control of substances by the Division of Health once controlled by the federal government regardless of how the substances would be viewed under the considerations listed in § 195.015.1, RSMo 1978. ⁵ It is asserted that two unlawful delegations in violation of art. II, § 1 result from this automatic functioning: the control of substances by mere Division of Health inaction, and thus without any statutory guidelines, definition, or limits on discretion in violation of State v. Bridges, supra ; and the delegation of state legislative power to a federal agency.

Respondent's position overlooks the role which the Division of Health is statutorily given. Upon receiving notice of the federal control if it does not object, "the division of Health shall similarly control the substance under sections 195.010 to 195.030 ...." Section 195.015.4, RSMo 1978. When a substance is federally controlled, the Division of Health is to act affirmatively in a similar manner unless within thirty days it objects to the federal action. Id. At a minimum, this requires the agency to decide whether to object, and if not, to control similarly the substance in Missouri by issuance of an order. See, § 195.015.2, RSMo 1978. In this case, the Division of Health controlled pentazocine by issuing an Order of Rulemaking stating that it "did not object to the scheduling of this substance in the Controlled Substance List in Missouri and, therefore, this substance is similarly controlled in Missouri ...." 4 Mo.Reg. 3-251 (March 1, 1979). Absent a contrary showing, there is a presumption of regularity of agency action and thus that the Division of Health exercised and acted within the limits of the authority conferred on it. 73 C.J.S. Public Administrative Bodies and Procedure § 63 (1951); See, U. S. v. Rucker, 435 F.2d 950, 952-53 (8th Cir. 1971); Moore v. Board of Education, 547 S.W.2d 188, 191-92 (Mo.App.1977). The Order of Rulemaking coupled with this presumption indicates that the Division of Health acted affirmatively in controlling pentazocine pursuant to § 195.015.4, RSMo 1978.

Respondent relies on State v. Dougall, 89 Wash.2d 118, 570 P.2d 135 (banc 1977) ⁶ where the Supreme Court of Washington held a significantly different statute to be an unconstitutional delegation. In that case, the statute provided;

(d) If any substance is designated, rescheduled, or deleted as a controlled substance under federal law and notice thereof is given to the board the substance shall be similarly controlled under this chapter after the expiration of thirty days from publication in the Federal Register of a final order designating a substance as a controlled substance ....

69.50.201(d) RCWash. 1974. The Washington Court found:

Where, as here, the Board does not object to the federal act of designating or rescheduling a substance, it becomes controlled after 30 days by reason of the Board's inaction or acquiescence in the final publication in the Federal Register. Once a substance has become controlled, a legislatively prescribed criminal penalty is imposed for its misuse. Consequently, a substance that is newly designed or rescheduled as a controlled substance by publication in the Federal Register becomes the criminal law of this state without appearing in either a state statute or the state administrative code ....

Id. 570 P.2d at 137. The court held this to be unconstitutional because "it permits future federal designation ... of controlled substances in the Federal Register to become controlled by Board inaction or acquiescence." Id. at 138. ⁷ The difference in this case is that § 195.015.4, RSMo 1978 does not by itself control substances after the thirtieth day from the date of the federal government's final notice of control. It is the Division of Health, not a federal agency, which schedules a substance in Missouri. Section 195.015.1, RSMo 1978, note 4. Research of other jurisdictions has revealed two cases which considered statutes mandating control by the state agency and otherwise analogous to § 195.015.4, RSMo 1978. In both, the statutes were upheld as constitutional delegations of authority. Ex parte McCurley, 390 So.2d 25 (Ala.1980); State v....