dissenting:
I must dissent from the majority’s decision on two grounds. First, I continue to adhere to my dissent in State v. Kellogg, 98 Idaho 541, 546, 568 P.2d 514, 519 (1977) (Kellogg I), that I.C. § 37-2210 constitutes an impermissible delegation of legislative authority and is violative of our state constitution. I.C. § 37-2210 reposes in both the federal government and the Idaho State Board of Pharmacy the power to set the standards and thereby the state policy governing the classification of drugs within Idaho. As discussed in my Kellogg I dissent, such a delegation of power exceeds the authority of the legislature, is unconstitutional, and should not, therefore, be recognized as a basis for this prosecution.1
*635Second, I find the majority’s reliance on State v. Hobbs, 101 Idaho 262, 611 P.2d 1047 (1980), misplaced. While it is true that in Hobbs we permitted judicial notice of the fact that phencyclidine was a controlled substance, that was because phencyclidine was specifically listed as a controlled substance by Idaho statute, I.C. § 37-2707(e)(4). Judicial notice of that fact was appropriate under I.C. § 9-101(3) as noticing an official act of the state legislature. 1.C. § 9-101(3) also provides for judicial notice of official acts of the United States Government. However, in the present case there is no official publication of a statute or regulation, state or federal, to indicate that either the State of Idaho or the federal government has acted to classify prednisolone as a prescription drug. In Rosenau v. Idaho Mutual Benefit Ass’n, 65 Idaho 408, 415, 145 P.2d 227 (1944), this Court clearly pointed out that judicial notice under I.C. § 9-101(3) requires an official publication of a definite governmental act or declaration creating or recognizing the fact being judicially noticed. Absent a state or federal statute or regulation specifically designating a drug as a prescription drug, the only procedure for establishing prescription status of a drug is found at 21 U.S.C. § 353(b)(1)(C) and -(b)(4), which requires the drug company to submit a new drug application to the FDA. The drug obtains prescription status under federal law when the FDA approves the new drug application with the limitation that the drug’s label bear the statement, “Caution: Federal law prohibits dispensing without prescription.” In the present case the respondent asserts that the FDA indeed approved numerous limited new drug applications for prednisolone. However, the only proof of that assertion was the affidavit of Jerome Halperin, Acting Deputy Director of the Bureau of Drugs,2 stating that 107 new drug application letters of approval were on file. No official record of any new drug application approval appears in the record of this proceeding.3 Therein is the distinction between this case and State v. Hobbs, supra. In Hobbs, the record consisted of the official record of the Idaho legislature, /. e., the Idaho Code and Session Laws, an official source upon which the status of phencyclidine was judicially noticed. Anything other than an official record of a governmental act is insufficient to support judicial notice of that act — certainly not an affidavit. I.C. § 9-315(1) clearly requires that proof of *636“Acts ... of the United States” be made by submitting “the records of the departments of the United States, certified by the heads of those departments respectively.” Without an official record of the governmental act to be judicially noticed, it cannot be said with sufficient certainty that a judicially noticeable act has taken place. Such is particularly true when the purported act to be noticed is the issuance of an obscure letter granting new drug approval — apparently located only in the government archives in Washington, D. C.
The requirements of I.C. § 9-315(1) requiring certified copies of the new drug application approval in order to prove prednisolone’s prescription status was made clear in our earlier opinion in this case, Kellogg I, when this Court stated the following:
“There is apparently no comprehensive list in existence which contains a complete rendition of federally designated prescription drugs. Instead, new drug application orders are kept on file at the Food & Drug Administration in Washington, D. C., and to establish conclusively that a drug has officially been designated a prescription drug, the state must obtain a certified copy of the relevant new drug application order for prednisolone.” 98 Idaho at 545, n. 4, 568 P.2d at 572, n. 4. (Emphasis added.) *
The majority notes this statement in footnote 2 of its opinion, but curiously omits any application, explanation or treatment of it. The majority states that various exhibits, not even identified by the majority, sufficiently demonstrated that prednisolone is recognized as a prescription drug; however, those exhibits, or any other exhibits other than a certified copy of a new drug application approval,4 are clearly insufficient under I.C. § 9-101(3), § 9-315(1), and Kellogg I. In Kellogg I the Court distinctly said that while other evidence of prescription status could be used to establish probable cause at the preliminary hearing,5 official proof of the drug’s status would be expected at trial. 98 Idaho at 545, 569 P.2d at 572. None of the exhibits admitted in this trial, including the affidavit of Jerome Halperin, met the requirements of I.C. § 9-315(1) and this Court’s admonition in Kellogg I that “to establish conclusively that a drug has officially been designated a prescription drug, the state must obtain a certified copy of the relevant new drug application order for prednisolone.” 98 Idaho at 545, n. 4, 568 P.2d at 572, n. 4.
Particular objection must also be made to the use of the affidavit by Jerome Halperin, erroneously admitted as an exhibit, to help prove the prescription status of prednisolone. Without so much as a comment concerning the hearsay rule or the defendant’s right to confrontation under the sixth and fourteenth amendments, the majority accepts the affidavit of Jerome Halperin as admissible evidence. As far as the hearsay rule is concerned, it has long been the well accepted rule that absent statutory exceptions, an affidavit is inadmissible as evidence for the lack of the opportunity to cross examine the affiant. VI Wigmore on Evidence §§ 1709, 1710 (Chadbourn Ed. 1976); 3 Am.Jur.2d, Affidavits § 29 (1962). While there are some exceptions in Idaho which permit the use of affidavits in civil cases, e. g., I.R.C.P. 4(g) and 5(f) (proof of service); I.R.C.P. 43(e) (evidence on motions based on facts not appearing in the record); I.R.C.P. 56(b) (summary judgment where facts are not disputed), there appear no exceptions supporting the proposition that an affidavit such as the one in question may *637be used as evidence to prove material elements of a criminal offense.6
Of even greater importance is the defendant’s constitutional right to confront the witnesses against him.7 One of the primary objectives of the confrontation clause was to prevent the use of ex parte affidavits, such as are sometimes used in civil cases, from being used against a defendant in lieu of a personal appearance by the witness and an opportunity by the defendant to cross examine and test the witness. California v. Green, 399 U.S. 149, 157-58, 90 5.Ct. 1930, 1934—1935, 26 L.Ed.2d 489 (1970); Mattox v. United States, 156 U.S. 237, 242-43, 15 S.Ct. 337, 339-340, 39 L.Ed. 409 (1895); State v. Mee, 102 Idaho 474, 478, 632 P.2d 663, 667 (1981). Yet, the majority has permitted exactly that, proof by affidavit which deprives the defendant of his right to cross examine the witness.
Consequently, for the above stated reasons I must dissent.
. Although I.C. § 37-2210 is applicable to this case, it should be noted that in 1979 the statute was repealed, 1979 Idaho Sess.Laws ch. 131, § 2, and replaced by provisions of the Idaho Pharmacy Act. See I.C. §§ 54-1705(23) and 54-1732.
. The affidavit stated in relevant part:
“2. ... I have custody of the official records of the FDA relating to human drugs, including the new drug applications (NDAs) on file with the FDA.
“4. A diligent search of the official files of the FDA relating to NDAs covering prednisolone tablets for human use reveals that, as of August 1, 1977, there was on file with the FDA a total of 107 approved NDAs [New Drug Applications] submitted by manufacturers and distributors of prednisolone tablets. Attached as Exhibit 2 is a list of such holders of the approved NDAs for prednisolone tablets for human use.
“5. The time, the expense, and the manpower required to search for, and copy, each FDA letter which grants approval for the NDAs referred to in Exhibit 2 would place a burden on the FDA resources. The list of holders of approved NDAs for prednisolone tablets, attached as Exhibit 2, is provided in lieu of each FDA letter granting approval for each such NDA to demonstrate that there are on file approved NDAs for prednisolone tablets.
“6. Each of the 107 NDAs held by the firms described in the list attached as Exhibit 2 stipulates that each such drug must be labeled with the legend ‘Caution: Federal law prohibits dispensing without prescription,’ thereby limiting such drugs to use under the professional supervision of a practitioner licensed by law to administer such drugs.”
. As noted in paragraph 5 of the affidavit, note 2 supra, the only reason given in the affidavit of Jerome Halperin, acting deputy director of the Bureau of Drugs, as to why he had not sent certified copies of the new drug approvals was that “the time, the expense, and the manpower required to search for and copy each FDA letter which grants approval for the NDAs referred to in Exhibit 2 would place a burden on FDA resources.” Certainly a copy of just one letter would not overburden the FDA. Moreover, the affidavit is self-contradictory when it states that a “diligent search” had been carried out and had discovered “107 approved NDA’s submitted by manufacturers,” and then later states that a search of the records would be too burdensome. Such an affidavit must necessarily be viewed as suspect.
. While the court in Kellogg I stated that a certified “order” would be required, it seems that the official acts of the FDA relevant in this case are not even embodied in the form of an order, but rather are evidenced merely by a letter of approval. See note 2, supra. Nevertheless, whether approval takes the form of an order or letter, it is still clear that I.C. § 9-315(1) and Kellogg I require a certified copy of an original document granting limited approval of a new drug application for prednisolone.
. I.C.R. 5.1 permits “hearsay [evidence] in the form of testimony, or affidavits ... to show the existence [of] medical facts and records” in a preliminary hearing probable cause finding.
. It might be argued that I.R.C.P. 43(e) is applicable to criminal proceedings under I.C.R. 26, and that I.R.C.P. 43(e) might be read broadly to permit the use of affidavits even to decide disputed facts. There is very little case law or comment interpreting I.R.C.P. 43(e); however, I.R.C.P. 56(b) clearly indicates that affidavits are only sufficient to decide a question where there is no issue as to the material facts. A combined reading of the two rules to restrict the use of affidavits to showing undisputed facts is consistent with the party’s right to cross examine the witnesses against him. In addition, I.R.C.P. 43(e) would have to yield in any event where it conflicts with the defendant’s right of confrontation in criminal cases. See discussion in text, infra.
. While hearsay rules and the confrontation clause protect similar values, they are by no means congruent in their application. California v. Green, 399 U.S. 149, 155-56, 90 S.Ct. 1930, 1933-1934, 26 L.Ed.2d 489 (1970).