dissenting:
I cannot agree with the majority’s conclusion that I.C. § 37-2210 does not unconstitutionally delegate legislative authority to the State Board of Pharmacy and to the federal government, particularly in the criminal context.
The starting point in any analysis of this problem must be the doctrine of separation of powers embodied in Art. 2, § 1, of the Idaho Constitution, and the exclusive grant of legislative authority to the senate and house of representatives of Idaho and to the people of Idaho acting by referendum or initiative set forth in Art. 3, § 1. These sections have been interpreted to prohibit the legislature from delegating its legislative or policymaking function to an administrative agency, but they have been construed to allow the legislature to delegate to an agency the factfinding task of determining whether the proper conditions exist for implementation of legislative policy where that policy is set out in the act, and where the criteria and standards under which the administrative agency is to act are clearly spelled out in the law. Board of County Commissioners of Twin Falls County v. Idaho Health Facilities Authority, 96 Idaho 498, 531 P.2d 588 (1975); Boise Redevelopment Agency v. Yick Kong Corp., 94 Idaho 876, 499 P.2d 575 (1972).
Although I will concede that the line between legislating or making policy on the one hand, and finding facts or ascertaining whether the policy should be implemented on the other, is by no means clear cut, in this case I believe that the duties given to the board under I.C. § 37-2210 clearly go beyond the constitutionally permissible authority to find facts and implement legislative policy and have become instead the setting of legislative policy by the board. That is because neither I.C. § 37-2210 nor any other section in the same chapter and title, gives the board any guidance or standards for determining which drugs shall be prescription drugs and which drugs shall not.
The statutory scheme in chapter 22 of Title 37 has no requirement that drugs designated prescription drugs by the board have any potential for abuse, that they be *547habit forming or addictive, that they have narcotic, stimulant, depressant, or hallucinogenic effects, that they present any danger or potential danger to their users, or that it be in the public interest that these drugs not be available without prescription. Thus, the State Board of Pharmacy is under no statutory constraint to find that a drug must fall within certain criteria or standards before it may declare it to be a prescription drug.1 In other words, because it has no statutory guidance, the board is making a legislative judgment every time it classifies a drug as a prescription drug rather than a finding of fact that the drug should be classified as a prescription drug because it has certain characteristics and meets certain criteria set out by the legislature. Furthermore, when the board adopted a regulation making all federal prescription drugs, ipso facto, Idaho prescription drugs, the legislative authority has been twice delegated — first to the board and then by the board to the federal government, with no guidance by the legislature. The particular drug, prednisolone, in question here, which the defendant Kellogg has allegedly dispensed, had apparently never been declared a prescription drug itself by the Idaho Pharmacy Board, except by the fact that the Idaho Pharmacy Board had adopted a regulation purporting to make all federal “legend drugs” prescription drugs under Idaho law. Thus, not only has the Idaho legislature invalidly delegated its legislative authority to the pharmacy board by I.C. § 37-2210, the pharmacy board has in turn invalidly redelegated that authority to the federal government.2 Therefore, any prosecution under I.C. § 37-2210 must fail.
The cases cited by the majority, ante, at 517, actually support this view. With the exception of National Nutritional Foods Ass’n v. Weinberger, 512 F.2d 688 (2d Cir.), cert denied, 423 U.S. 827, 96 S.Ct. 44, 46 L.Ed.2d 44 (1975), which is a procedural case dealing mainly with the conduct of administrative hearings to determine v/hether large doses of vitamins A and D would be subject to FDA regulation as drugs, all of the federal decisions cited on that page concerned construction of federal statutes which only allowed an administrative agency to classify a substance as a drug by regulation under the statute after a finding that the substance involved met the statutory criteria of potential for abuse because of the drug’s depressant, stimulant or hallucinogenic effects, or similar criteria. All but one of the state cases cited on that page also involved statutes in which a state board’s authority to determine a drug to be a prescription drug or a controlled substance was similarly restricted by statute to the authority to classify a drug only after a finding by the board of its potential for abuse or its narcotic, depressant, stimulant *548or hallucinatory potential, or that it fell within similarly worded standards. Thus, the South Dakota case of State v. Johnson, 84 S.D. 556, 173 N.W.2d 894 (1970), is not the anomaly the majority would have us believe. Instead, because that case, like this ease, deals with a statute in which a board was given unbridled discretion to classify drugs or in which the legislature directed the board to adopt future as well as present federal classifications with no standards for approving or disapproving of the federal classifications, Johnson simply presents the proper rule to be followed in the situation in which the statutes have not adequately channeled the board’s authority and discretion to classify substances as drugs subject to regulation under the statute. After studying these cases I conclude that this case is like Johnson and unlike the others cited by the majority. Accordingly, I would hold that the defendant Kellogg cannot be prosecuted under I.C. § 37-2210 for selling, dispensing or otherwise disposing of drugs without a prescription because the drug has not been identified as a prescription drug pursuant to a valid statute of this state.
Finally, it is worth noting that it is not beyond the legislature’s capacity to draft a statute which would properly delegate the administrative function of classifying substances as prescription drugs to the State Board of Pharmacy under adequate statutory criteria and guidelines which provide adequate standards from which the board may classify substances as controlled substances. I.C. §§ 37-2704, -06, -08, -10 and -12 contain acceptable standards for classification of Schedule I, II, III, IV, and V drugs which the State Board of Pharmacy must use in carrying on its factfinding function of the classification of newly discovered or identified substances.3 When the board acts under these sections, it is not performing a legislative function, but an administrative one. Similarly, I.C. § 37-2702(d) provides a procedure and standards whereby the board will consider changes in federal classifications and itself decide whether it will follow or reject changes in the federal classifications. Under that act the board is following legislative guidelines and not making the legislative or policy judgment itself, nor blindly deferring to the federal classification. But until such time as the board’s authority under I.C. § 37-2210 is similarly constrained, I cannot agree that prosecution under I.C. § 37-2210 for dispensing a drug required to be sold under prescription by rule or regulation of the board or law of the United States enacted after the adoption of I.C. § 37-2210 is permissible under Art. 2, § 1, and Art. 3, § 1, of the Constitution of Idaho. Accordingly, I would affirm the decision of the district court.
. As a result, the State Board’s determination of prescription drugs could include such items as aspirin, vitamins, tobacco, liquor or any other product commonly sold in retail establishments.
. The legislature is free to adopt by reference the drug laws of the United States at the time that I.C. § 37-2210 was enacted, but it may not delegate its legislative authority to the government of the United States in the future. For that reason, a prospective adoption of the drug laws of the United States is also an unconstitutional delegation of the legislative authority no different from I.C. § 37-2210’s direction to the board to determine which drugs shall be prescription drugs and which drugs shall not. Thus, my statements in the text concerning delegation of legislative authority to the board are also applicable to delegation of legislative authority to the federal government.
The constitutional prohibition against adopting federal law in futuro has been recognized by the Idaho legislature in other contexts. Thus, I.C. § 63-3024 imposes a tax upon the “taxable income” of every resident individual, trust or estate. “Taxable income” is defined in I.C. § 63-3022 the same as it is in Section 63 of the “Internal Revenue Code.” Internal Revenue Code is defined in I.C. § 63-3004 as “the Internal Revenue Code of 1954 of the United States, as amended, and in effect on the 1st day of January, 1977.” 1977 I.S.L., ch. 1. The legislative history to I.C. § 63-3004 shows that each year the legislature amends that section to change the reference to the Internal Revenue Code to January 1, of the current year — which seems to me a recognition by the legislature that it could not constitutionally pass a statute which would adopt by reference federal law in futuro. If the legislature cannot do so it seems even more clear that the Pharmacy Board cannot.
. For example, I.C. § 37-2704 provides that a substance shall be placed on Schedule I if the board finds that the substance:
“(a) Has high potential for abuse; and
“(b) Has no accepted medical use in treatment in the United States or lacks accepted safety for use in treatment under medical supervision.”
I.C. § 37-2706 provides that a substance shall be placed on Schedule II if the board finds that:
“(a) The substance has high potential for abuse.
“(b) The substance has currently accepted medical use in treatment in the United States, or currently accepted medical use with severe restrictions; and
“(c) The abuse of the substance may lead to severe psychic or physical dependence.”
I.C. §§ 37-2708, -10 and -12 define Schedule III, IV and V substances in terms of comparable precision. These standards, together with the availability for comparison of substances assigned by the legislature to the various schedules, I.C. §§ 37-2703, -05, -07, -09 and -11, provide the necessary legislative guidelines that must be given to administrative boards to prevent legislative authority from being delegated to them.