VAN HOOMISSEN, J.
Defendant appeals his conviction for supplying contraband. ORS 162.185; ORS 162.135(l)(d).
He contends that the trial court erred in overruling his demurrer to the indictment.
The issue is whether ORS 162.185 unconstitutionally delegates state legislative power to local governments. The Court of Appeals held that it does not and affirmed.
State v. Long,
109 Or App 221, 818 P2d 996 (1991),
adhered to on reconsideration,
110 Or App 599, 823 P2d 1031 (1992). We also affirm.
The parties stipulated to the following facts:
In August 1989, the Lane County Adult Corrections Department promulgated and implemented a rule that prohibited inmates of the Lane County jail from possessing tobacco, matches, and rolling papers.
On December 12,1989, defendant was incarcerated in the Lane County jail; on admission to the jail he was informed of the rule. On that same day, defendant was found in his cell with those contraband items in his possession. On December 19, a smoke alarm led to the discovery of tobacco, matches, rolling papers, and a burning cigarette in defendant’s cell. He was charged with violating ORS 162.185.
Defendant demurred to the indictment, arguing that ORS 162.185 unconstitutionally delegates state legislative power to local governments, because that statute incorporates the definition of contraband which
prospectively
adopts rules that define an element of a crime,
and because, even if prospective adoption of such rules is constitutionally permissible, it is permitted only where the delegation is intragovern-mental,
i.e.,
from state government to state agency or from local government to local government agency. Defendant relied on Article I, section 21,
Article III, section l,
and Article IV, section 1(1),
of the Oregon Constitution. The trial court overruled defendant’s demurrer. Defendant waived a jury trial and, after a trial to the court on stipulated facts, he was found guilty. Defendant appealed.
The Court of Appeals affirmed,
explaining:
“The legislature has declared that contraband ‘means any article or thing * * * whose use would endanger the
safety and security’ of correctional and juvenile facilities and the state hospital, as well as the persons in those institutions. That definition is a constitutionally sufficient directive to state and local agencies that are given the power to issue rules and orders defining contraband.”
State v. Long, supra,
110 Or App at 603.
Article I, section 21, of the Oregon Constitution, provides that no law shall be passed, “the taking effect of which shall be made to depend upon any authority except as provided in the Constitution.” Article III, section 1, of the Oregon Constitution, provides for the separation of powers into the Legislative, the Executive, and Judicial departments. Article IV, section 1(1), of the Oregon Constitution, provides that the legislative power is vested in the Legislative Assembly. Defendant argues that those provisions prohibit delegation of legislative power to make law. We agree. Defendant further argues that the provision in ORS 162.135(l)(d) defining contraband is an unconstitutional delegation of legislative power to make law. We disagree.
In
State v. Sargent,
252 Or 579, 584, 449 P2d 845 (1969), this court upheld a statute that authorized the Drug Advisory Council, apart of the Executive branch appointed by the Governor, to designate “dangerous” drugs.
Sargent,
like
the present case, was a criminal case where a defendant challenged the authority of the legislature to confer on others the authority to give definition to an element of a crime. In
Sargent,
this court held that the legislature “cannot delegate its power to make law, but that it can delegate, at least to an agency of government, the power to determine the existence of facts or circumstances mentioned in the law upon which the law will become operative.”
Id.
at 580. In
Sargent,
this court rejected the defendant’s challenge, stating that the legislature had not delegated its policymaking power. In this case as well, the legislature did not delegate its power to make law, but only the power to determine the existence of facts or circumstances mentioned in the law upon which the law will become operative,
i.e.,
circumstances involving “endangering] the safety or security of [correctional facilities] or any person therein.” ORS 162.135(l)(d).
That is constitutionally permissible.
State v. Sargent, supra,
sufficiently answers defendant’s first argument that statutes may not include definitions that are to be supplied prospectively by rules.
See also Megdal v. Board of Dental Examiners,
288 Or 293, 297, 605 P2d 273 (1980) (legislative delegation to state licensing board to define “unprofessional conduct” upheld; the constitutional issue is only whether it remains possible for the agency and for reviewing courts to determine when subsequent
agency rules or actions have honored and when they have departed from the general policy indicated by the legislature);
Anderson v. Peden,
284 Or 313, 325, 587 P2d 59 (1978) (legislative delegation to county board of commissioners giving “administrative discretion in further policy development contemplated by the ordinance” upheld).
Just as the state Drug Advisory Council in
State v. Sargent, supra,
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VAN HOOMISSEN, J.
Defendant appeals his conviction for supplying contraband. ORS 162.185; ORS 162.135(l)(d).
He contends that the trial court erred in overruling his demurrer to the indictment.
The issue is whether ORS 162.185 unconstitutionally delegates state legislative power to local governments. The Court of Appeals held that it does not and affirmed.
State v. Long,
109 Or App 221, 818 P2d 996 (1991),
adhered to on reconsideration,
110 Or App 599, 823 P2d 1031 (1992). We also affirm.
The parties stipulated to the following facts:
In August 1989, the Lane County Adult Corrections Department promulgated and implemented a rule that prohibited inmates of the Lane County jail from possessing tobacco, matches, and rolling papers.
On December 12,1989, defendant was incarcerated in the Lane County jail; on admission to the jail he was informed of the rule. On that same day, defendant was found in his cell with those contraband items in his possession. On December 19, a smoke alarm led to the discovery of tobacco, matches, rolling papers, and a burning cigarette in defendant’s cell. He was charged with violating ORS 162.185.
Defendant demurred to the indictment, arguing that ORS 162.185 unconstitutionally delegates state legislative power to local governments, because that statute incorporates the definition of contraband which
prospectively
adopts rules that define an element of a crime,
and because, even if prospective adoption of such rules is constitutionally permissible, it is permitted only where the delegation is intragovern-mental,
i.e.,
from state government to state agency or from local government to local government agency. Defendant relied on Article I, section 21,
Article III, section l,
and Article IV, section 1(1),
of the Oregon Constitution. The trial court overruled defendant’s demurrer. Defendant waived a jury trial and, after a trial to the court on stipulated facts, he was found guilty. Defendant appealed.
The Court of Appeals affirmed,
explaining:
“The legislature has declared that contraband ‘means any article or thing * * * whose use would endanger the
safety and security’ of correctional and juvenile facilities and the state hospital, as well as the persons in those institutions. That definition is a constitutionally sufficient directive to state and local agencies that are given the power to issue rules and orders defining contraband.”
State v. Long, supra,
110 Or App at 603.
Article I, section 21, of the Oregon Constitution, provides that no law shall be passed, “the taking effect of which shall be made to depend upon any authority except as provided in the Constitution.” Article III, section 1, of the Oregon Constitution, provides for the separation of powers into the Legislative, the Executive, and Judicial departments. Article IV, section 1(1), of the Oregon Constitution, provides that the legislative power is vested in the Legislative Assembly. Defendant argues that those provisions prohibit delegation of legislative power to make law. We agree. Defendant further argues that the provision in ORS 162.135(l)(d) defining contraband is an unconstitutional delegation of legislative power to make law. We disagree.
In
State v. Sargent,
252 Or 579, 584, 449 P2d 845 (1969), this court upheld a statute that authorized the Drug Advisory Council, apart of the Executive branch appointed by the Governor, to designate “dangerous” drugs.
Sargent,
like
the present case, was a criminal case where a defendant challenged the authority of the legislature to confer on others the authority to give definition to an element of a crime. In
Sargent,
this court held that the legislature “cannot delegate its power to make law, but that it can delegate, at least to an agency of government, the power to determine the existence of facts or circumstances mentioned in the law upon which the law will become operative.”
Id.
at 580. In
Sargent,
this court rejected the defendant’s challenge, stating that the legislature had not delegated its policymaking power. In this case as well, the legislature did not delegate its power to make law, but only the power to determine the existence of facts or circumstances mentioned in the law upon which the law will become operative,
i.e.,
circumstances involving “endangering] the safety or security of [correctional facilities] or any person therein.” ORS 162.135(l)(d).
That is constitutionally permissible.
State v. Sargent, supra,
sufficiently answers defendant’s first argument that statutes may not include definitions that are to be supplied prospectively by rules.
See also Megdal v. Board of Dental Examiners,
288 Or 293, 297, 605 P2d 273 (1980) (legislative delegation to state licensing board to define “unprofessional conduct” upheld; the constitutional issue is only whether it remains possible for the agency and for reviewing courts to determine when subsequent
agency rules or actions have honored and when they have departed from the general policy indicated by the legislature);
Anderson v. Peden,
284 Or 313, 325, 587 P2d 59 (1978) (legislative delegation to county board of commissioners giving “administrative discretion in further policy development contemplated by the ordinance” upheld).
Just as the state Drug Advisory Council in
State v. Sargent, supra,
was authorized to enumerate the specific chemicals that fell within the statutory ban on the sale or possession of dangerous drugs, in this case the Lane County Adult Corrections Department could designate by rule those items whose possession and use the county determined “would endanger the safety or security of the county jail or any person therein.”
Defendant next argues that, even if prospective adoption of a rule is constitutionally permissible, it is permitted only where the delegation of legislative authority is
intra-
governmental. He argues that intergovernmental delegation is constitutionally impermissible. We find no case law or logic to support that proposed distinction. This court has never held that the legislature may not delegate authority to local governmental bodies to adopt rules that define or implement broad statutory standards. To the contrary, the court has long recognized that such delegations are constitutional.
See, e.g., Horner’s Market v. Tri-County Trans.,
256 Or 124, 471 P2d 798 (1970) (upholding delegation to cities),
overruled on other grounds, Multnomah County v. Mittleman,
275 Or 545, 557-58, 552 P2d 242 (1976);
Warren v. Marion County,
222
Or 307, 353 P2d 257 (1960) (upholding delegation to counties);
see also
Koch, Administrative Law and Practices § 1.22 (1985) (discussing the nondelegation of authority doctrine); 1 Davis, Administrative Law Treatise §§ 3:12-3:15 (2d ed 1978) (discussing limits on delegation). Indeed, far from holding that the Oregon Constitution forbids delegating state legislative power to local governmental bodies, this court has stated that “broad delegation of policymaking [i]s least vulnerable when it [i]s given ‘to an elected local government that itself ha[s] political accountability for lawmaking as well as administration.’
Cf. Warren v. Marion County,
[supra].”
Megdal v. Board of Dental Examiners, supra,
288 Or at 298 n 3. The case law focuses, quite correctly, on the presence or absence of adequate legislative standards and whether the legislative policy has been followed.
For the reasons explained above, we hold that ORS . 162.185 does not unconstitutionally delegate state legislative authority to local governments as argued by defendant.
The decision of the Court of Appeals and the judgment of the circuit court are affirmed.