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People v. Avery

OPINION FILED AUGUST 23, 1977.

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLANT,

v.

BRUCE FRANKLIN AVERY, APPELLEE.



Appeal from the Circuit Court of Winnebago County, the Hon. John W. Nielsen, Judge, presiding.

MR. JUSTICE MORAN DELIVERED THE OPINION OF THE COURT:

In the circuit court of Winnebago County, the defendant, Bruce F. Avery, was charged by way of complaint with a violation of section 406(a)(1) of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1973, ch. 56 1/2, par. 1406(a)(1)), in that, on March 12, 1974, he knowingly and not in good faith dispensed a controlled substance, diethylpropion, to Edward J. Doyle, by issuing a prescription to Doyle. The defendant moved to dismiss the complaint. The trial court granted the motion, concluding that there was no offense on the basis that any rule issued by the Director of Law Enforcement (Director) to add, delete or reschedule controlled substances had no effect until the purport of such rule was submitted to and adopted by the General Assembly. The trial court further stated that the General Assembly could not delegate such legislative power to the Director.

The Illinois Controlled Substances Act, which became effective August 16, 1971, contains five schedules, each of which enumerates various substances. The State concedes that diethylpropion was not among the substances enumerated in the Act on the date of the defendant's alleged violation, March 12, 1974. Prior to that date, however, the Director had promulgated a rule that added diethylpropion to schedule IV. The rule was to be effective March 1, 1974.

The legislature, under section 201(a) of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1973, ch. 56 1/2, par. 1201(a)), delegated to the Director the power, with the concurrence and approval of the Dangerous Drugs Advisory Council (Council), to issue a rule the effect of which would be to add to or delete from the schedules of controlled substances, or to reschedule those already controlled and enumerated within the five schedules of the Act. The legislature further stated that, in making the determination regarding the rescheduling of a substance, the Director and Council shall consider the following criteria:

"(1) the actual or relative potential for abuse;

(2) the scientific evidence of its pharmacological effect, if known;

(3) the state of current scientific knowledge regarding the substance;

(4) the history and current pattern of abuse;

(5) the scope, duration, and significance of abuse;

(6) the risk to the public health;

(7) the potential of the substance to produce psychological or physiological dependence;

(8) whether the substance is an immediate precursor of a substance already controlled under this Article;

(9) the immediate harmful effect in terms of potentially fatal dosage; and

(10) the long-range effects in terms of permanent health impairment." Ill. Rev. Stat. 1973, ch. 56 1/2, par. 1201(a).

The criteria set forth are almost identical to those of the Comprehensive Drug Abuse Prevention and Control Act of 1970 (21 U.S.C. ยง 801 et seq.), which contains schedules (sec. 812) and authorizes the Attorney General to add substances to, transfer between, or remove them from the schedules (sec. 811). This act of Congress has been held to be a constitutional delegation of legislative power. United States v. ...


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