(dissenting).
Because, in my opinion, the respondent King was unconstitutionally denied adequate notice that possession of phentermine was a crime on April 21, 1976, I would affirm the decision of the trial court.
Pursuant to Minn. St. 152.02, subds. 8 and 12, on November 8,1974, the State Board of Pharmacy filed with the secretary of state and the commissioner of administration a regulation whereby phentermine was included as a Schedule IV controlled substance. Under Minn. St. 152.09, subd. 1(2), and Minn. St. 152.15, subd. 1(3), possession of phentermine thereby became a crime punishable by a maximum of 3 years’ imprisonment and a $10,000 fine. In my opinion, such notice was no notice at all in practical effect.1
To apply the doctrine that everyone is presumed to have knowledge of the law would have thoroughly misled this defendant had she looked for guidelines in our statutes. On the day before defendant was charged with having possession of phenter-mine, the legislature adopted an amendment to chapter 152 expressly including phentermine as a controlled substance but deferring the effective date of that amendment until August 1, 1976, pursuant to Minn. St. 645.02. In my opinion, it is totally unrealistic to expect a layman to prowl through the office of the secretary of state and commissioner of administration in search of a regulation when the statute which was on the books at the time of the alleged offense by its terms included the controlled substance for the first time, and deferred its effective date for more than 3 months from the time the offense was claimed to have occurred.
In Cassell v. State, 55 Ala.App. 502, 317 So.2d 348 (1975), cited by the majority, the Alabama court noted that under its controlled substance law, when a prohibited drug was included by the State Board of Health, that regulation was, as required by statute, published in one or more newspapers of general circulation in the state. In the instant case, had the regulation adopted by the State Board of Pharmacy on November 8,1974, been published in our metropolitan papers, a better case could be made for meeting the requirement of constitutionally mandated public notice.
But, in my opinion, to hold that filing of the regulation with the secretary of state and with the commissioner of administration constitutes notice which satisfies due process where the authorized maximum penalties are imprisonment for ? years and a $10,000 fine is unreasonable, illogical, and unconscionable. Accordingly, I would affirm the trial court’s order of dismissal.
. Compliance with the Administrative Procedure Act prescribed by Minn. St. 152.02, subd. 12, did not at the time of this alleged offense require that the regulation be published in the State Register since that amendment to Minn. St. 1974, § 15.0412, subd. 2, was not effective until July 1, 1976. L. 1975, c. 380, § 2.