dissenting:
*430I respectfully dissent.
The judiciary is obligated to examine the reasonableness of legislative classifications and to declare them unconstitutional" when it finds them to be so. In the words of Chief Justice Marshall, “It is emphatically the province and duty of the judicial department to say what the law is.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L.Ed. 60 (1803). No amount of deference to judicial restraint can discharge this obligation.
We have long recognized our duty to determine the reasonableness of legislative classifications. Love v. Bell, 171 Colo. 27, 465 P.2d 118; Smith v. Farr, 46 Colo. 364, 104 P. 401; Platte, Etc., C. & M. Co. v. Dowell, 17 Colo. 376, 30 P. 68. In discharging this duty, on occasion we may be called upon to engage in judicial fact-finding. This is both necessary and appropriate, for, as stated in Chastleton Corp. v. Sinclair, 264 U.S. 543, 44 S.Ct. 405, 68 L.Ed. 841:
“* * * A Court is not at liberty to shut its eyes to an obvious mistake, when the validity of the law depends upon the truth of what is declared.” (Emphasis added.)
Cf. Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57; Brown v. Board of Education, 347.U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873; Block v. Hirsh, 256 U.S. 135, 41 S.Ct. 458, 65 L.Ed. 865; People v. Albrecht, 145 Colo. 202, 358 P.2d 4.
As candidly conceded by the majority opinion, the overwhelming weight of eminent scientific authority points to the conclusion that marijuana is not a narcotic drug. In addition to the authority cited by the majority, see: The First Report of the National Council for Civil Liberties: Drugs and Civil Liberties (2d ed. 1968); Dependence on Cannabis (Marijuana), 201 J.A.M.A. 368 (1967); McGlothin & West, The Marijuana Problem: An Overview, 125 Amer. J. Psychiat. 370 (1968); Pet & Ball, Marijuana Smoking in the United States, 32 Fed. Probation 8 (1968); Weil, Zinberg & Nelson, Clinical and Psychological Effects of Marijuana in Man, 162 Science 1234 (1968). When it is so classified — contrary to the truth — the classification lacks a fundamental *431rational basis and is unreasonable and is constitutionally offensive. And, when substantial felony punishments are imposed on the basis of an unconstitutional misclassification (as contrasted with the misdemeanor punishments imposed for the use and possession of dangerous drugs), those convicted and punished as felons, in’our view, are denied equal protection of the law.
In spite of the mass of credible scientific information accumulated to the contrary — that marijuana is at most a dangerous drug and not a narcotic drug — our legislature, although it did amelónate the punishment for possession of not more than one-half ounce of marijuana (1971 Perm. Supp., C.R.S. 1963, 48-5-20(6)), did not choose to properly reclassify marijuana. We foresee continued injustice resulting from future enforcement of this statute, which we believe to be fundamentally unfair and invalid.
When this Court decided People v. McKenzie, 169 Colo. 521, 458 P.2d 232, and People v. Stark, 157 Colo. 59, 400 P.2d 923, it was not totally aware of the extent of the scientific knowledge concerning this subject. However, uncritical adherence to past judgments is no answer to the problem. It is our duty to assess the constitutional validity of legislative classifications in the light of scientific knowledge presently available, Evans v. County Comm., 174 Colo. 97, 482 P.2d 968; People v. McKenzie, supra. 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. Abie State Bank v. Bryan, 282 U.S. 765, 51 S.Ct. 252, 75 L.Ed. 690.
In our view, this Court should join the growing number of jurisdictions which have recognized that, based on presently available scientific data, there is no rational basis for classifying marijuana as it has been classified here. See e.g., People v. McCabe, 49 Ill. 2d 338, 275 N.E.2d 407;People v. Sinclair, 387 Mich. 91, 194 N.W.2d 878. See also, Sam v. State, 500 P.2d 291 (Okla. Cr. App.); State v. Zornes, 78 Wash. 2d 9,475 P.2d 109.
*432Lest we be misunderstood, we hasten to point out that we agree with the view of the majority that marijuana, being a harmful drug, is a proper subject of legislative control under the police power. Our concern here is with its misclassification as a narcotic drug and the felony punishment related to this misclassification.
We would declare this aspect of the narcotic drug statute to be unconstitutional.
I am authorized to say that MR. JUSTICE GROVES joins in this dissent.