dissenting.
Prefatorily I must admit a personal prejudice against the unlawful use of all drugs and the lawful use of tobacco, as well. Having had no exposure to cocaine, I know nothing about it, and, personally, am willing to assume that its unprescribed use is bad, as the legislature apparently feels to be the case. The fact remains, however, that I do not know. Today we are handed an appellant’s brief which seeks to assure us that cocaine is not inherently a harmful drug, and is not entitled to the classification which the legislature has given it, by reason of which the appellant should not be facing ten years in the penitentiary.
The Michigan Supreme Court, in People v. Sinclair, 387 Mich. 91, 194 N.W.2d 878, 881 (1972), felt constrained to determine “whether this Court has the power to determine the actual state of facts concerning marijuana and other drugs,” holding that its power cannot be doubted. The Illinois Supreme Court, faced with the same problem, noted that “[appropriate respect should be given to the fact of a legislative classification, but there is a judicial obligation to insure that the power to classify has not been exercised arbitrarily and, if it has been, the legislation cannot be justified under the label of ‘classification.’ ” People v. McCabe, 49 Ill.2d 338, 275 N.E.2d 407, 409 (1971) (emphasis added).
“It is our duty to assess the constitutional validity of legislative classifications in the light of scientific knowledge presently available. . . . This is particularly so in cases such as this. Legislation based upon the police power, even if legitimate when enacted, may become invalid when later knowledge and experience show it has become arbitrary.” People v. Summit, 183 Colo. 421, 517 P.2d 850, 855 (1974) (Lee, J., dissenting) (citations omitted).
As the foregoing cases show, the question of drug classification may become a court problem. The Court’s holding forecloses any reason for discussing the merits of this issue, and I write only to point out that the defendants have presented a record with unrefuted expert testimony that cocaine has been improperly classified by the legislature. I believe it extremely naive for the Court to rely on the legislature to re-examine the classification made. Where a person’s liberty is at stake, it should become, as has been held in other states, the obligation of this Court to consider whether the record sustains the well-presented challenge that the legislature acted arbitrarily.