{dissenting). Johnny Harper was convicted on a two-count information charging him with violation of PA 1952, No 266, §§ 2, 3 (CLS 1961, §§ 335.152, 335.153 [Stat Ann 1957 Rev §§ 18.1122, 18.1123]). Act No 266 mandates a minimum sentence of 20 years for sale of narcotics. He was sentenced to 20-30 years for sale and 8-10 years for possession. Defendant maintains that had he been a druggist or other person licensed under PA 1937, No 343, as amended (CL 1948, § 335.51 et seq., as amended [Stat Ann 1957 Rev and 1965 Cum Supp § 18.1071 et seq.]), he would have been charged under that act for the very same offenses with which he was charged, but upon conviction he would have been sentenced to “imprisonment in the State prison for not more than 10 years’’ the maximum sentence for sale under Act No 343. Defendant maintains ho has been denied the equal protection of the law.
I. The Issue of Classification.
Upon oral argument, the prosecutor contended that this case does not involve any classification be*453cause under 18 USCA, § 1402, all heroin must be surrendered to the secretary of the treasury. It was argued there can be no legitimate traffic in heroin.
PA 1937, No 343, § 2, as amended by PA 1952, No 132 (CLS 1961, § 335.52 [Stat Ann 1957 Rev § 18.1072]), provides:
“It shall be unlawful for any person duly licensed under the provisions of this act to manufacture, possess, have under his control, sell, prescribe, administer, dispense, or compound any narcotic drug, except as authorised in this act.” (Emphasis supplied.)
Whether there can be any legitimate traffic in heroin is immaterial. If the Federal law forbids all traffic in heroin, then certainly State law cannot authorize use of the drug. It follows that any use or traffic in heroin would be unauthorized and an offense under the above section.
Assuming a sale of heroin by a person licensed under the act, section 20, the penal section (CLS 1961, § 335.70 [Stat Ann 1957 Rev § 18.1090]), reads:
“Any person duly licensed under the preceding provisions of this act who violates any provision of this act shall be guilty of a felony, punishable by imprisonment in the State prison for not more than 10 years or by a fine of not more than $10,000.00 or by both such fine and imprisonment.” (Emphasis supplied.)
The test of guilt under the act is not whether the licensed person can sell heroin but whether he is licensed. The law does apply to a class — “Any person duly licensed” — and consequently classification does exist under PA 1937, No 343, as amended.
II. The Issue oe Equal Protection.
Is the classification reasonable under the police power? PA 1937, No 343, as amended, is a dual *454purpose statute. It provides for the licensing of persons to handle narcotic drugs in a lawful manner. Such regulation is a familiar exercise of the police power, regularly utilized in numerous fields for the protection of the public, such as in the licensing of dentists, doctors, lawyers, engineers, plumbers, and so on. Such power to license and regulate is not in any way in question here. It must be noted, however, that the law does not license the commission of criminal acts.
The unusual feature of PA 1937, No 343, as. amended by PA 1952, No 132, is that its penal provisions are set up to provide separate criminal offenses for persons within a restricted class. The offenses are not different offenses from those under PA 1952, No 266. The acts prohibited are identical with those under PA 1952, No 266.*
In Rinaldi v. Yeager, 384 US 305 (86 S Ct 1497, 16 L ed 2d 577), decided May 31, 1966, the United States Supreme Court considered a New Jersey statute that provided for deduction from a prisoner’s pay of 20^5 a day, five days a week, to repay the cost to the county of a transcript provided to the prisoner for his appeal. The law applied only to prisoners. *455In holding the statute to violate the equal protection clause, the Court said (pp 308, 309):
“The equal protection clause requires more of a State law than nondiscriminatory application within the class it establishes. * * * It also imposes a requirement of some rationality in the nature of the class singled out. To be sure, the constitutional demand is not a demand that a statute necessarily apply equally to all persons. ‘The Constitution does not require things which are different in fact * * * to be treated in law as though they were the same.’ * * * Hence, legislation may impose special burdens upon defined classes in order to achieve permissible ends. But the equal protection clause does require that, in defining a class subject to legislation, the distinctions that are drawn, have ‘some relevance to the purpose for which the classification is made.’ ”
In the case of Rucker v. State (1961), 170 Tex Crim 487 (342 SW2d 325), under a city ordinance, as controlled by statute, a $25 fine was the maximum penalty assessable against peddlers entering premises of another and refusing to leave when ordered to do so. Any person other than a peddler, salesman, or solicitor could be fined $200 for the same offense. The court of criminal appeals held the ordinance void and said (pp 488, 489):
“Under this statute, as well as under the ordinance in question, the maximum punishment which may be meted out to a peddler who enters the premises of another and refuses to leave, after being notified or ordered to do so by one in lawful occupancy of said premises, is a fine of $25; whereas the ordinance provides that ‘any other person’ (one who is not a peddler, salesman or solicitor) may be fined $200 for the same act and failure. * * *
. “Unequal treatment of persons under a State law which is founded upon unreasonable and unsubstan*456tial classification constitutes discriminatory State action and violates both the State and Federal Constitutions. * * *
“There appears no reasonable and substantial classification of persons which justifies the imposition of a $25 fine upon peddlers, salesmen, and solicitors and a $200 fine upon all other persons for the same act.”
See, also, Mitchell v. State (1946), 157 Fla 121 (25 S2d 73); People v. Simmons (1927), 130 Misc 821 (226 NYS 397).
While the classifications imposed by Acts Nos 343 and 266, as amended, have a rational basis from the standpoint of insuring proper and healthful use of drugs, the differences in penalties imposed by those acts cannot be justified on that, or any other, rationale. The effect of the acts is to accord more lenient punishment to those who might be presumed, because of their education, training and background, to understand better than the average individual the need to prohibit certain conduct. The creation of a special licensed class to deal with drugs is of obvious importance to our present society, but favored treatment to that class for violating criminal proscriptions in its field of special knowledge is absurd. It is as if a special law were to deal more leniently with all criminal acts committed by lawyers than do the laws which apply to laymen because lawyers are licensed and presumed to be learned in the law!
Section 2 of PA 1952, No 266, is unconstitutional because in violation of the equal protection provision of the Fourteenth Amendment to the Constitution of the United States and article 1, § 2, of the Michigan Constitution of 1963. Harper does not claim his conviction under section 3 subjected him to any greater punishment than the maximum provided by section 20 of PA 1952, No 132. The sentence im*457posed under this count of the information was imprisonment of 8 to 10 years. Harper is, therefore, in no position to raise the question of constitutionality of section 3 under the sentence imposed on him. While the statutory presumption of section 3 that unlawful possession of narcotic drug's “shall he deemed to be included within every offense” under section 2 of PA 1952, No 266, must fall with section 2, there is no showing upon the record before us that Harper’s conviction under section 3 resulted from or was based upon such presumption. The defendant-appellant should be discharged from the sentence imposed upon him under section 2 of PA 1952, No 266.
T. M. Kavanagh and Souris, JJ., concurred with Adams, J.Johnny Harper was convicted under the following provisions of Act No 266:
“See. 2. Any person not having a license under the provisions of Act No 343 of the Publie Acts of 1937? as amended, being sections 335.51 to 335.78, inelusive, of the Compiled Laws of 1948, who shall sell, manufacture, produce, administer, dispense or prescribe any narcotic drug shall be deemed guilty of a felony, and upon conviction thereof shall be punished by imprisonment in the State prison for a term of not less than 30 years nor more than life.
“Sec. 3. Any person not having a license as required under the provisions of Act No 343 of the Public Acts of 1937, as amended, being sections 335.51 to 335.78, inelusive, of the Compiled Laws of 1948, who shall possess or have under his or her control any narcotic drug shall be deemed guilty of a felony, and upon conviction thereof, for the first offense shall be punished by imprisonment for not more than 10 years, and a fine or not more than $5,000.00 * * * The offenses set forth in this section and in section 4 shall be deemed to be .included within every offense charged as a violation of section 8 of this act.” (Emphasis supplied.)