(dissenting).
The decision of the majority today makes the penalties for repeated trafficking in heroin and possession of eight ounces of marijuana the same. This result is clearly not what the legislature intended. Indeed, the whole legislative scheme of varied penalties depending upon the seriousness of the offense and the dangerousness of the drug has been abrogated. The reason is apparently because the term “second degree felony” is not defined in the correct volume of our code. It is this type of “judicial legislation” by technicality which is to be avoided.
The major issue involved in this appeal is not whether we should disregard § 40A-29-11, N.M.S.A.1953 (2d Repl.Vol. 6), but rather what effect should be given to its terms. The statute states:
“A. Whenever a defendant is convicted of a crime under ... a statute not contained in the Criminal Code, which specifies the penalty to be imposed on conviction, the court shall have the power to pronounce sentence in accordance with the provisions prescribed . . . ” [Emphasis added]
The majority have concluded that the statute is clear and unambiguous. With this conclusion I disagree.
The statute does not indicate the extent of specificity required before a court can sentence under Subsection A. The word “specify” is subject to more than one possible meaning. It could mean that the fine and sentence must be explicitly set out. It could require only that the language be so specific that men of ordinary intelligence need not guess at its meaning or differ as to its application. See State v. Ferris, 80 N.M. 663, 459 P.2d 462 (Ct.App.1969). In this sense the statute is ambiguous and judicial construction can be employed to clarify it. See State v. Clark, 80 N.M. 340, 455 P.2d 844 (1969).
Several rules of statutory construction are useful in determining which of the two possible meanings applies. The first is that a statute is to be construed to effectuate the legislative intent. State ex rel. Sanchez v. Reese, 79 N.M. 624, 447 P.2d 504 (1968); State v. Ortega, 77 N.M. 312, 422 P.2d 353 (1966). As pointed out, the legislature intended a scheme of graduated penalties. The majority adopt the construction which, in most instances, provides a sentence of from one to five years imprisonment no matter how serious the offense. It is absurd to think that the legislature intended to equate serious offenses like the repeated sale of heroin with others denominated fourth degree felonies. Yet, the majority, in apparently requiring that the sentence and fine be explicitly set out, reach that result.
Courts are to construe a statute so that no part is rendered surplusage or superfluous. Stang v. Hertz Corp., 81 N.M. 69, 463 P.2d 45 (Ct.App.1969). Yet, what meaning do the words “second degree” in § 54 — 11—20(B), N.M.S.A.1953 (Repl.Vol. 8, pt. 2, Supp.1973), have after the majority’s decision? We should construe statutes to save them, not to void their provisions.
The majority’s decision creates a conflict between the words “fourth degree felony” in § 40A-29-ll(B), supra, and “second degree felony” in § 54-11-20 (B), supra. Courts should construe statutes together when possible. State v. New Mexico State Authority, 76 N.M. 1, 411 P.2d 984 (1966).
If the construction urged here is accepted, does § 54-11-20 (B), supra, “. specif[y] the penalty to be imposed upon conviction?” The majority conclude that to “ . . . read into the Controlled Substances Act the penalty provided for a second degree felony . . . ,” would amount to a usurpation of the power of the legislature. My understanding is that our function is precisely to define and clarify the words of legislative enactments. Apparently that was also the view of this Court in State v. Sawyers, 79 N.M. 557, 445 P.2d 978 (Ct.App.1968), where the Criminal Code definition o.f “felony” was used to interpret language in another criminal statute not found in the Criminal Code.
Since a reasonable man need not guess at what is meant by a “second degree felony” but merely turn to § 40A-29-3(B), N.M.S.A.1953 (2d Repl.Vol. 6), the section of the Controlled Substances Act involved here, § 54-11-20(B), supra, specifies its own penalty. This being the case, the proper sentencing authority is found in § 40A-29-11 (A), supra.
For the foregoing reasons, I respectfully dissent. I would affirm.