dissenting.
I respectfully dissent. In my view the law in issue here does not say "a depressant or stimulant drag is anything the State Board of Pharmacy says it is without any real guidelines. . .”
The law in issue here (Code Ann. § 79A-903(b)) defines "depressant or stimulant drug” to mean: (1) any drug which contains barbituric acid or its salts, (2) any drug which contains amphetamine or its optical isomers or their salts, (3) any drug designated by federal regulations as having a potential for abuse because of its depressant or stimulant effect on the central nervous system or its hallucinogenic effect, and (4) "Any substance which the State Board shall determine to be habit-forming because of its stimulant effect on the central nervous system or any drug which the State Board shall determine to contain any quantity of a substance having a potential for abuse because of its depressant or stimulant effect on the central nervous system or its hallucinogenic effect. . .”
Subpart (4) should be considered in context, not in isolation, insofar as guidelines are concerned.
Moreover, that subpart contains guidelines. It defines "depressant or stimulant drug” as follows: Any substance which is habit-forming because of its stimulant effect on the central nervous system or any drag containing any quantity of a substance having a potential for abuse because of its depressant or stimulant effect on the central nervous system or its hallucinogenic effect. If written thusly, there would be no invalid delegation of legislative power. There might be a question of vagueness; i.e., insufficient notice to the public. The General Assembly avoided the vagueness (notice) problem by inserting the words "the State Board shall *486determine.”
The General Assembly created a balanced subsection, providing protection (public and private), guidelines, specificity and notice, by providing the framework and relying on the expertise and determinations of the State Board of Pharmacy to name the drugs fitting the criteria set by law. No one argues that the Board erred in its determination that phencyclidine is a hallucinogenic drug.
The General Assembly did not leave the authority to the board "to define the thing to which the statute is to be applied” (16 AmJur2d 506, Constitutional Law, § 257, supra). The General Assembly left the authority to the board to name the drugs to which the statute was to be applied.
The General Assembly did not attempt to delegate to the board the authority to determine what acts would constitute a crime. The General Assembly delegated to the board the authority to determine which new or additional drugs came within the act which had not already been defined by the General Assembly as "depressant or stimulant drugs.”
The General Assembly provided guidelines; the real issue here should be whether those guidelines were constitutionally sufficient for determination by the board of pharmacy (not determination by a court). It is not enough to say that a new law with more guidelines could be and has been enacted. Ga. L. 1974, pp. 221, 228.
The new law relates only to Code Ann. Chapters 79A-8 and 79A-9, (Ga. L. 1974, pp. 221, 223), as originally enacted in 1967. The 1974 law does not affect Code Ann. Chapters 79A-1 through 79A-7 and 79A-10 (Ga. L. 1967, pp. 296-380).
The decision of the majority in this case has the effect of making legal the possession and sale of dangerous drugs named by the state board pursuant to 79 A-702 (b) of the Dangerous Drugs Act (Ga. L. 1967, pp. 296, 323), to wit: Rule 480-8-.01.
One wonders apprehensively what other effects this decision has on other laws and expert determinations made thereunder.
The decision cited by the majority as controlling, *487Long v. State, 202 Ga. 235 (42 SE2d 729), is clearly distinguishable. In that case, the General Assembly delegated to Fulton County the power to fix speed limits within that county, which limits were less than that fixed by state law. The Act declared it to be a misdemeanor to violate any county rule or regulation so adopted. The Act contained no guidelines whatsoever.
After citing federal decisions appellant states in his brief: "However, the courts in Georgia have more strictly construed Georgia constitutional provisions which place all legislative functions in the legislative branch,” citing, inter alia, Long v. State, supra. Appellant then cites decisions from six states which he candidly acknowledges have held contrary to his position. Thus, appellant acknowledges that Georgia courts have more strictly limited legislative delegation than have the courts of other states, not to mention the federal decisions.
In addition to Long v. State, supra, consider Bibb County v. Garrett, 204 Ga. 817 (51 SE2d 658), and Campbell v. Farmer, 223 Ga. 605 (157 SE2d 276), relied on by appellant as authority that the General Assembly cannot delegate its legislative power. The Long case was overturned by local constitutional amendment so as to allow Fulton County to regulate traffic. Ga. L. 1967, p. 969. The Bibb County case invalidated the delegation to Bibb County of control over its employees pension and insurance plans. It was partially overturned by a local constitutional amendment (Ga. L. 1950, p. 431), and was completely overturned by adoption of the Home Rule for Counties amendment. Code Ann. § 2-8503. The Campbell decision involved taxes on agricultural commodities. That decision was overturned by general constitutional amendment. Code Ann. § 2-5501.1.
The significance to me of these several constitutional amendments is that when the General Assembly wants to delegate its legislative power, no judicial decision declaring such delegation invalid will bar that body from accomplishing its objective.
Where, as here, the General Assembly has provided administrative guidelines, the courts should not invalidate the legislative will.
I am authorized to state that Justices Jordan and *488Ingram join me in this dissent.