APPEAL from the Circuit Court of Cook County; the Hon. ROBERT
J. COLLINS, and the Hon. ROBERT L. MASSEY, Judges, presiding.
MR. PRESIDING JUSTICE PERLIN DELIVERED THE OPINION OF THE COURT:
Defendants Copeland, Harris, Henderson, Betts, Evans and Gates were charged by informations with the possession on November 1, 1977, of diazepam (valium), a schedule IV controlled substance, in violation of section 402(b) of the Illinois Controlled Substances Act (hereinafter referred to as the Act) (Ill. Rev. Stat. 1975, ch. 56 1/2, par. 1402(b)). *fn1 Defendant Betts was additionally charged by information with the dispensing of diazepam on November 1, 1977, without a written prescription in violation of section 406(a)(1) of the Act (Ill. Rev. Stat. 1975, ch. 56 1/2, par. 1406(a)(1)). The trial court, pursuant to motions of the above named defendants, dismissed the informations on the following grounds: (1) the meeting procedures followed by the Dangerous Drug Commission in listing diazepam as a schedule IV controlled substance did not conform to the statutory requirement and thus invalidated the subsequent legislative action amending schedule IV to include diazepam; (2) the informations did not allege the amount of diazepam possessed by defendants Copeland, Harris, Henderson, Betts and Evans; and (3) the information did not allege to whom defendant Betts dispensed the diazepam.
Defendant Singleton was charged in six separate indictments with the delivery of diazepam in violation of section 401(e) of the Act (Ill. Rev. Stat. 1977, ch. 56 1/2, par. 1401(e)). *fn2 The trial court, pursuant to defendant Singleton's motion, quashed the indictments on the grounds that the meeting procedures followed by the Dangerous Drug Commission in listing diazepam as a schedule IV controlled substance did not conform to the statutory requirement and thus invalidated the subsequent legislative action amending schedule IV to include diazepam.
The State has appealed each case pursuant to Supreme Court Rule 604 (Ill. Rev. Stat. 1977, ch. 110A, par. 604), and we have consolidated the cases for purposes of appeal. *fn3 For reasons hereinafter set forth we affirm in part and reverse in part and remand for further proceedings not inconsistent with the views expressed herein.
In light of our supreme court's opinion in People v. Bradley (1980), 79 Ill.2d 410, 403 N.E.2d 1029, we must affirm, albeit for different reasons, the trial court's dismissal of the informations charging defendants Copeland, Harris, Henderson, Betts, Evans and Gates with possession of diazepam. *fn4 In Bradley our supreme court opined at page 418: "Inasmuch as section 402(b), as it is applied to charges of possession of schedule IV substances, is not reasonably designed to remedy the evil which the legislature determined to be a greater threat to the public, it is violative of the due process clause of the Illinois Constitution, and is therefore invalid." The supreme court premised its decision upon the fact that even though "the legislature intended that those who traffic in and deliver drugs should be subject to more severe sentences than those who merely possess them," section 402(b), prior to the September 14, 1979, amendment, prescribed a greater sentence for possession of a schedule IV substance than that set forth by section 401(e) for delivery of the same substance. Bradley, at 418.
In its motion to supplement its brief and argument the State contends that "[t]he fact that the [s]supreme [c]court [in Bradley] found the penalty provision of section 402(b) to be invalid does not preclude prosecution of the defendants since the applicable sentencing provisions are those which are in effect at the time the defendant is sentenced if they are more lenient than the provisions in effect at the time of the commission of the offense." The only authority cited by the State in support of this proposition is section 8-2-4 of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1008-2-4) and section 4 of "An Act to revise the law in relation to the construction of the statute" (Ill. Rev. Stat. 1977, ch. 131, par. 4). *fn5 These statutes on their face do not support the State's arguments, and the State cites no further authority in support of its contention.
• 1 The State argues that "the Bradley case does not constitute authority for prohibiting the instant defendants from being sentenced under the current penalty provision of section 402(b)." We do not agree. The supreme court in Bradley acknowledged the legislature's September 14, 1979, amendment of the Act. Yet the supreme court affirmed the judgments dismissing the charges of possession of schedule IV substances and did not remand with directions that, if convicted, the defendant Bradley be sentenced under the amended penalty provision. Thus, it appears that the supreme court, sub silentio, rejected the applicability of the amended penalty provision. We therefore affirm the judgments of the circuit court dismissing the informations charging defendants Copeland, Harris, Henderson, Betts, Evans and Gates with possession of diazepam.
In each case the primary basis upon which the trial court relied in dismissing all charges against all defendants was that the meeting procedures followed by the Dangerous Drug Commission in listing diazepam as a schedule IV controlled substance did not conform to the statutory requirement and thus invalidated the subsequent legislative action amending schedule IV to include diazepam.
On October 9, 1975, the Dangerous Drug Commission met and a copy of the minutes of this meeting was presented to the trial court in each case. Five of the 11 Commission members were physically present at the meeting, and the affidavit of another Commission member, Dr. Joyce Lashof, indicates that she sent a delegate to the meeting and that she remained in telephone contact with her delegate throughout the entire meeting. The minutes reflect that a discussion ensued as to "whether valium and librium should be put on Schedule IV as it appears on the federal schedule." It was moved "[t]hat the Dangerous Drug Commission hereby adopt and republish Schedules I through V of the Controlled Substances Act with the conforming changes in Schedules I and IV to bring the Rule in line with the federal Controlled Substances Act per the statutory mandate." Five members of the Commission, including Dr. Lashof, voted in favor of the above resolution and one member, Bernard Brody, *fn6 voted against the resolution. The chairman then declared that the resolution was approved. The Dangerous Drug Commission subsequently published its rule, effective October 9, 1975, listing diazepam as a schedule IV controlled substance.
The legislature thereafter amended, effective September 3, 1977, the Controlled Substances Act to include diazepam as a schedule IV controlled substance.
The defendants argue that a quorum *fn7 was not constituted at the October 9, 1975, meeting of the Commission because only five members were physically present. Defendants dispute the counting of Dr. Lashof in establishing a quorum and question her participation through telephone contact with her delegate. Defendants further assert that even if a quorum was constituted, only five members, rather than a majority of the members, voted in favor of the resolution. Defendants argue therefrom that the legislature's subsequent amendment of the Controlled Substances Act was not valid since the legislature allegedly acted pursuant to a "defective" rule issued by the Commission. In response the State argues that a quorum was constituted at the October 9, 1975, meeting and that a majority of the members present at the meeting approved the resolution. The State further argues that the validity of the amendment is not dependent upon the actions of the Commission. Under the circumstances of the case, our inquiry necessarily focuses solely upon the validity of the legislative amendment.
It is a question for the legislature to determine whether an evil exists and what means should be adopted to prevent it, and its acts will not be interfered with unless they are clearly in violation of some constitutional limitation. (People v. Lawrence (1945), 390 Ill. 499, 509-10, 61 N.E.2d 361.) Thus, a court is not empowered to declare invalid an act of the legislature that does not contravene either the constitution of the State or of the United States. "Such a decree or judgment would not only be judicial legislation, but would interfere with one of the highest prerogatives of organized government, — the preservation of the public health and the public safety." (Durand v. Dyson (1915), 271 Ill. 382, 390, Ill N.E. 143.) A strong presumption of constitutional validity attaches to legislative enactments (Pozner v. Mauck (1978), 73 Ill.2d 250, 255, 383 N.E.2d 203; Livingston v. Ogilvie (1969), 43 Ill.2d 9, 12, 250 N.E.2d 138), and a party attacking a law has the burden of showing that it is unreasonable (Pozner v. Mauck, at 255; Thillens, Inc. v. Morey (1957), 11 Ill.2d 579, 591, 144 N.E.2d 735) is clearly arbitrary and has no foundation in the police power (Thillens, Inc. v. Morey, at 591). A large measure of discretion is necessarily vested in the legislature to decide not only what the interest of public welfare and safety require, but also what ...