(dissenting).
The majority opinion applies the rule that the specific act controls over the general act. I agree that the rule applies in these appeals; I differ with the majority holding that the Drug and Cosmetic Act is more specific than the Controlled Substances Act. I would reverse the trial court’s orders and reinstate the charges brought under the Controlled Substances Act.
New Mexico began regulating “narcotic drugs” in 1935 and “drugs and cosmetics” in 1951. See generally §§ 54-6-1, et seq. and 54-7-1, et seq., N.M.S.A.1953 Comp. (Repl. Vol. 8, pt. 2). In 1967, the Legislature enacted the Drug and Cosmetic Act referred to in the majority opinion. Laws 1971, ch. 245 amended both the Narcotic Drug Act and the Drug and Cosmetic Act enacted in 1967. Then, by Laws 1972, ch. 84, the Legislature enacted what is known as the Controlled Substances Act and amended the Drug and Cosmetic Act of 1967.
The Controlled Substances Act, by its contents, is an inclusive Act; the Act is not limited to narcotic drugs as was its predecessor. A comparison shows the Controlled Substances Act was based upon the federal Comprehensive Drug Abuse Prevention and Control Act of 1970. The federal Act was “designed to deal in a comprehensive fashion with the growing menace of drug abuse” by, among other things, “providing for an overall balanced scheme of criminal penalties for offenses involving drugs.” 3 U.S.Code Cong. & Ad.News, 4567 (1970). New Mexico had the same purpose in enacting the Controlled Substances Act.
To deal with drugs comprehensively, the Controlled Substances Act, in § 30-31-5, N.M.S.A.1978 (1980 Repl.Pamph.), establishes criteria which, if met, require the State Board to place a substance on the schedules established by the Controlled Substances Act. Quaalude has been placed in Schedule II. To be placed in Schedule II, the substance must have a “high potential for abuse”. Section 30-31-5(B), supra. This requirement is to be compared with the requirement for listing a substance as a “dangerous drug” under the Drug and Cosmetic Act. The definition of a “dangerous drug,” quoted in the majority opinion, is not concerned with abuse, but with a potentially harmful effect which requires use under supervision. A substance in Schedule II will meet the definition ■ of a dangerous drug, but all dangerous drugs will not meet the “high potential for abuse” criteria of Schedule II. Regulation of a substance by placing it in Schedule II is more specific than classifying the substance as a dangerous drug.
Section 30-31-5(B), supra, states that the Board “shall place” a substance in Schedule II if the three statutory criteria are met. By contrast, § 26-l-18(B), N.M.S.A.1978 (Drug and Cosmetic Act) states that the Board “shall by regulation declare a substance a ‘dangerous drug’ when necessary”. (Emphasis added.) The duty of the Board to include a substance in Schedule II (three requirements) is more specific than the duty to declare a substance a dangerous drug “when necessary”.
Fore’s motion to dismiss informs us that the State Board of Pharmacy regulates Quaalude as a depressant. The Drug and Cosmetic Act specifically regulated depressants prior to the 1972 Act, at which time the specific regulation of depressants was repealed. Compare Laws 1967, ch. 23, §§ 2(F) and 13, and Laws 1971, ch. 245, § 2(F) with Laws 1972, ch. 84, §§ 43 and 47. Subsequent to the 1972 law, the Drug and Cosmetic Act regulates depressants only under the general regulation of dangerous drugs.
The Drug and Cosmetic Act, prior to the 1972 Act, made the sale of depressants a felony. As a first offense, sale to a person under eighteen years of age was a third degree felony; sale to a person over eighteen years of age was a fourth degree felony. Laws 1971, ch. 245, §§ 4(B) and (C). These felony provisions were removed from the Drug and Cosmetic Act at the time the specific regulation of depressants was removed. See Laws 1972, ch. 84, § 53. The controlled substances portion of that same 1972 law made distribution, or possession with intent to distribute, a non-narcotic Schedule II substance, a third degree felony for the first offense and a second degree felony for subsequent offenses. Laws 1972, ch. 84, § 22. Those penalties are presently in effect. See § 30-31-22(A)(2), N.M.S.A. 1978 (1980 Repl.Pamph.). The “balanced scheme of criminal penalties for offenses involving drugs” is met only if the Controlled Substances Act applies; the balanced scheme is not met by treating the offense as a petty misdemeanor for the first offense under the Drug and Cosmetic Act. Section 26-l-26(B), N.M.S.A.1978.
The Drug and Cosmetic Act contains indications that it was intended to apply only when the Controlled Substances Act is not applicable. Section 26-1-22, N.M.S.A.1978, makes it unlawful to obtain, or attempt to obtain, by fraud, forgery, concealment of a material fact or by false name “any dangerous drugs other than a controlled substance”. Section 26-1-23, N.M.S.A.1978, makes it unlawful to falsify or forge prescriptions or written orders “for dangerous drugs other than controlled substances.” Under the majority view, an attempt to obtain a dangerous drug by fraud is a petty misdemeanor; so is the actual sale of a dangerous drug placed in Schedule II of the Controlled Substances Act. The majority view is unreasonable and defeats the objective of the Legislature. State v. Garcia, 93 N.M. 51, 596 P.2d 264 (1979).
Summarizing, I would hold that the Controlled Substances Act applies because:
1. Schedule II regulation is more specific than “dangerous drug” regulation.
2. The duty of the Board to regulate a substance that meets the criteria for Schedule II is more specific than the duty to regulate a substance as a dangerous drug.
3. The drug involved, Quaalude, is a depressant. Specific regulation of depressants has been removed from the Drug and Cosmetic Act.
4. The felony penalty for distribution of non-narcotic Schedule II substances is in the same Act that removed depressants from the Drug and Cosmetic Act.
5. Statutory indications are that the Drug and Cosmetic Act applies only when the Controlled Substances Act does not apply.
The majority do not agree; I dissent.