specially concurring:
I concur in the judgment affirming the circuit court’s dismissal of the complaint since it did not charge an offense. But I do not agree with the reasoning by which this court reached that result.
At the time, March 12, 1974, when the defendant allegedly violated the statute in dispensing a known controlled substance, diethylpropion, it is conceded that diethylpropion was not among those substances enumerated in the Act. Prior to that date, however, the Dangerous Drugs Advisory Council had nromulgated a rule, effective March 1, 1974, which added diethylpropion.
The controlling statute, section 201(b) of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1973, ch. 561/2, par. 1201(b)), provides that the Director of the Department of Law Enforcement may issue a rule concerning the substance, but no such rule “shall have any effect prior to the concurrence of the Dangerous Drugs Advisory Council. Each such rule shall then be submitted to the General Assembly, in the form of a proposed law amending this Act, and unless the proposed law is adopted by the General Assembly and enacted into law within 2 years after the Director has issued the rule, Such rule shall expire and have no further force and effect.” Thus there are four steps spelled out by the statute: (1) the issuance of the rule by the Director; (2) the concurrence of the Dangerous Drugs Advisory Council; (3) the submission to the General Assembly in the form of a proposed law; and (4) action by the General Assembly.
Notwithstanding the clear language of the statute requiring the Director to submit every rule to the General Assembly “in the form of a proposed law amending this Act, and unless the proposed law is adopted by the General Assembly and enacted into law within 2 years after the Director has issued the rule, such rule shall expire,” the majority states that upon the issuance of the rule by the Director it becomes a law:
“[W]e conclude that the legislature clearly intended that any rule issued by the Director in conformance with the statute was to have the immediate effect of law. The language and intent, therefore, stand in refutation of the trial court’s conclusion that the Director’s rule did not become law until after it had been adopted into law by the legislature.” 67 Ill. 2d at 187.
But the plain language of section 201(b) shows that the General Assembly did not intend that the promulgation of the rule be the enactment of a law. It authorized the rule proposed by the Council to be submitted “in the form of a proposed law,” and unless the proposal was enacted into law within the two-year period, it was a nullity. We cannot neglect the fundamental rule of statutory construction that the court must read the statute as a whole without presuming that a portion of it is surplusage. In Hirschfield v. Barrett (1968), 40 Ill. 2d 224, this court said:
“The presence of surplusage, however, is not to be presumed in statutory or constitutional construction (Winnebago County v. Industrial Com., 34 Ill. 2d 332, 335; Pinkstaff v. Pennsylvania Railroad Co., 31 Ill. 2d 518, 524), and the fundamental rule that each word, clause or sentence must, if possible, be given some reasonable meaning (People ex rel. Barrett v. Barrett, 31 Ill. 2d 360; Doubler v. Doubler, 412 Ill. 597, 600) is especially apropos to constitutional interpretation.” 40 Ill. 2d 224, 230.
There is no language which supports the majority’s position that a rule has the immediate effect of law. Even more important are the constitutional questions which could arise from such an interpretation. A rule could be enacted at 9 a.m., and at 1 p.m. the same day the prosecution could commence if the enactment of the rule had the force and effect of a law.
The majority’s interpretation is significant for another reason. Under its terms an administrative agency could determine offenses punishable by imprisonment. The dispensing of a controlled substance is either a Class 4 felony or a Class A misdemeanor, each of which is an offense punishable by imprisonment. (Ill. Rev. Stat. 1975, ch. 38, pars. 1005—8—1(a)(5), 1005—8—3(a)(1).) Under the terms of the majority opinion the Director has the power to determine at will what constitutes a crime punishable by imprisonment. This would seem offensive to the Criminal Code of 1961, which provides that “[n] o conduct constitutes an offense unless it is described as an offense in this Code or in another statute of this State” (Ill. Rev. Stat. 1975, ch. 38, par. 1—3), while section 2 — 12 of the Criminal Code of 1961 defines an “offense” as “a violation of any penal statute of this State” (Ill. Rev. Stat. 1975, ch. 38, par—12). In no other instance do our laws delegate to an agency the power to fix a crime punishable by imprisonment. Yet under the terms of the majority opinion such power would be given the Director and the Dangerous Drugs Advisory Council.
The majority holds that a rule promulgated by the Council becomes a law upon its issuance by the Director. However, it then holds this statute, which according to its interpretation gives the Council law-making power, to be invalid for want of notice. Here is what is said:
“True, on legislative enactments, notice — as the term is ordinarily employed — is not required. But notice does in fact occur, for it is constitutionally required that ‘[a] bill shall be read by title on three different days in each house’ (Ill. Const. 1970, art. IV, sec. 8(d)). A person who might be affected must have the opportunity to avoid violating the law, especially, as in the instant case, a penal law. Under section 201(b), no notice is required.” 67 Ill. 2d at 188.
No notice to potential violators is required for the enactment of a bill into law. The Constitution provides that only the title, not the contents, of the bill be read:
“A bill shall be read by title on three different days in each house.” (Ill. Const. 1970, art. IV, sec. 8(d).)
Obviously, the list of controlled substances does not appear in the title, and a reading of the title would not apprise one of the drugs prohibited by the bill.
More than that, however, no reading whatsoever is required when a bill is amended, so long as the amendment is germane to the general subject matter of the bill.
“However, amendments germane to the subject matter may be made without the proposed act, as amended, being read three times in each House. (Commissioners of Sny Island Levee Drainage Dist. v. Shaw, 252 Ill. 142; People ex rel. Gibbons v. Clark, 296 Ill. 46; Stevenson v. Montgomery, 263 Ill. 93.) In order to come within the rule that an amendment need not be read three times in each House, it must be germane to the general subject of the bill as originally introduced. People ex rel. Brady v. LaSalle Street Trust and Savings Bank, 269 Ill. 518.” Giebelhausen v. Daley (1950), 407 Ill. 25, 46-47.
“Germane” has a very broad definition. It means “akin” or “closely allied.” Giebelhausen v. Daley (1950), 407 Ill. 25, 47; Dolese v. Pierce (1888), 124 Ill. 140.
But there is more. The concept of the unconstitutionality of a law for failure to give notice of its enactment is unique. In fact, it is found for the first time in this opinion.
The predicate of unconstitutionality appears to be that the 1975 act (Ill. Rev. Stat. 1975, ch. 561/2, par. 1100 et seq.), together with section 5 of the Illinois Administrative Procedure Act (Ill. Rev. Stat. 1975, ch. 127, par. 1005), would now require notice. But a 1975 act does not determine the validity of a 1971 statute. Neither the 1975 amendment to the Illinois Controlled Substances Act nor the Illinois Administrative Procedure Act was in effect at the time of the commission of the offense for which defendant was convicted. They cannot be the criteria of the constitutionality of the statute before the court.
To arrive at its result, the majority has had to declare this statute “invalid.” This means unconstitutional. But we are not told with what part of the Constitution the statute conflicts, nor in what respect it violates constitutional guarantees. All subjects within the scope of civil government may be acted upon by the General Assembly unless there is a constitutional inhibition against such conduct. As this court stated in Locust Grove Cemetery Association v. Rose (1959), 16 Ill. 2d 132:
“Every subject within the scope of civil government which is not within some constitutional inhibition may be acted upon by the General Assembly. (Sutter v. People’s Gas Light and Coke Co. 284 Ill. 634.) Thus the question is narrowed to an inquiry whether or not the statute contravenes any constitutional provision.” (16 Ill. 2d 132, 138.)
So also all presumptions are in favor of the constitutionality of a law and all reasonable doubt must be resolved in its favor. North Shore Post No. 21 v. Korzen (1967), 38 Ill. 2d 231, 233; Locust Grove Cemetery Association v. Rose (1959), 16 Ill. 2d 132, 138; Thillens, Inc. v. Hodge (1954), 2 Ill. 2d 45, 57; Gadlin v. Auditor of Public Accounts (1953), 414 Ill. 89, 95; Klein v. Department of Registration & Education (1952), 412 Ill. 75, 85; People v. Dale (1950), 406 Ill. 238, 244.
The majority refers to decisions construing the Federal Comprehensive Drug Abuse Prevention and Control Act of 1970 (21 U.S.C. sec. 801 et seq. (1970)). That act of Congress is not before us. It is not relevant to this case. Section 201 of the Act (21 U.S.C. sec. 811 (1970)) authorizes the Attorney General of the United States to add substances to the list of controlled substances, but the Federal act contains no provisions comparable to section 201(b) of the Illinois act. The Federal statute offers nothing in determining the meaning of the Illinois statute.
The provision in section 201(d) (Ill. Rev. Stat. 1973, ch. 561/2, par. 1201(d)) that a rule, once established, “shall be final unless altered by statute” does not aid the majority. Section 201(d) relates only to situations where a substance has been controlled by the Federal government under Federal law. It contains no provision for submission to the General Assembly, and is not involved in the present problem.
Rather than follow the tortuous path of the majority with its potentially far-reaching effects, and its declaration of the “invalidity” of the statute giving the force of law to a rule of an administrative body, it seems to me that the proper solution to this problem is the simple one — to follow the clear language of the statute. This means holding that under the statute the particular conduct with which defendant is charged had not yet become a violation of an effective law. Simplification never creates problems.