
    The State of Ohio v. Perrico.
    (No. 79-CR-1482
    Decided May 15, 1980.)
    Court of Common Pleas of Montgomery County.
    
      Mr. James T. Burroughs, assistant prosecuting attorney, for plaintiff.
    
      Mr. Jack T. Schwarz, for defendant.
   Meagher, J.

This case is before the court on defendant’s plea of no contest to a charge against him for possession of phencyclidine (PCP). In making that plea, the defendant challenges the procedure by which phencyclidine has been classified as a Schedule II drug rather than a Schedule III drug. Specifically, the defendant asserts that R. C. 3719.43, insofar as it provides that a transfer by the United States Attorney General of a narcotic from one schedule to another in the federal drug classification scheme automatically effects a corresponding transfer in Ohio’s drug schedules, unlawfully delegates legislative authority in the attorney general. The defendant contends that any amendment or modification in the scheduling of narcotics in Ohio must be accomplished by the Ohio legislature and not by the United States Attorney General.

It is a well-established principle of representative government that the legislature cannot delegate its legislative power to any other authority or body, and that any attempt to do so is void and unconstitutional. State, ex rel. Foster, v. Evatt (1944), 144 Ohio St. 65. The legislature is prohibited from delegating the power to make the law. 10 Ohio Jurisprudence 2d, Constitutional Law, Section 312.

R. C. 3719.43 specifically authorizes the United States Attorney General, a member of the executive branch of the government, to prescribe the classification for various drugs and controlled substances. In so providing, R. C. 3719.43 delegates the power to one outside the administration and control of the legislature. Each time a drug is reclassified by the United States Attorney General, the Ohio legislature does not vote on such reclassification, but gives blanket approval to that change by means of the aforementioned section.

In this case, the reclassification of phencyclidine by the attorney general has resulted in a change of penalties for those found guilty of possession of that controlled substance. Phen-cyclidine possession is now a felony; formerly, that offense was a misdemeanor. The reclassification, therefore, has resulted in harsher penalties being imposed on those found to have unlawfully possessed that drug.

R. C. 3719.43 attempts to delegate to a branch of the federal government state legislative authority which the state legislature alone can exercise. Insofar as R. C. 3719.43 delegates the power to the United States Attorney General to ■modify the law in Ohio, that delegation of authority is unconstitutional and void.

Accordingly, the court finds the defendant not guilty as charged in the indictment, but guilty of violation of R. C. 2925.11(C)(2), possession of phencyclidine, a Schedule III drug.

Judgment accordingly.  