No. 2559 | Nev. | Oct 15, 1922
By the Court,
This is an original proceeding in habeas corpus. The petitioner charges that he is illegally restrained of his liberty by the respondent, the sheriff of Washoe County,
“An act defining public utilities, providing for the regulation thereof, creating a public service commission, defining its duties and powers, and other matters relating thereto.” Stats. 1919, p. 198.
Conceding, as contended by the state, that petitioner was guilty of operating a public utility as a common carrier, as defined in section 7 of the act, without first having obtained a certificate as required by section 36V2, we do not think he is charged with a crime, and for that reason deem it necessary to determine but one of the points urged upon us.
Proceeding, then, upon the theory that petitioner is a common carrier, operating a public utility in the sense contemplated by section 7 of the act, we come directly to the question as to whether or not he is charged with a crime. This involves a consideration of sections 35 and 41 of the act. They read:
“Sec. 35. If any public utility shall violate any provision of this act or shall do any act prohibited, or shall fail or refuse to perform any duty enjoined upon it, or upon failure of any public utility to place in operation any rate or joint rate, or do any act herein prohibited, for which a penalty has not been provided, or shall fail, neglect, or refuse to obey any lawful requirement or order made by the commission or any court, for every such violation, failure, or refusal, such public utility shall be subject to the penalty prescribed in section 11 of this act.”
“Sec. 41. Any violation of the provisions of this act, where no penalty or punishment is prescribed therefor, shall be punished by a fine of not less than five hundred*218 ($500) dollars or more than one thousand ($1,000) dollars.”
It will be seen that section 35 contemplates only the levying of a penalty when a public utility violates a provision of the statute, or does an act prohibited thereby, whereas section 41 makes such violation a gross misdemeanor. It is conceded by respondent that, but for section 41, the petitioner would not be guilty of a gross misdemeanor. Hence we are confronted with the necessity of deciding which of the two sections is applicable to the situation presented.
By the very argument made in behalf of the respondent, it is conceded that section 35 would cover the case and make petitioner liable for a penalty recoverable in a civil action, were it not for section 41. In other words, if section 41 were not incorporated in the act, petitioner would be liable for a penalty. It is said, however, that, in view of the fact that section 41 is subsequent in the order of arrangement, section 35 is ineffective, since, as it is claimed, the two sections are in conflict. Sections 11, 13, 15, 21, and 24 either prohibit or make compulsory the doing of certain-things, and fix a penalty for the violation thereof. Section 36%, which petitioner is charged with violating, makes the failure to do certain things illegal, but fixes no penalty or punishment for noncompliance therewith. Section 35 provides that if a public utility violates “any provision” of the act, for which a penalty is not provided, the person guilty thereof shall be liable for a penalty, as provided in section 11. Section 41 provides that any violation of the provisions of the act, “where no penalty or punishment is provided therefor,” shall be punished by a fine.
In the determination of the point urged by the respondent, we must keep in mind the ancient rule that penal statutes are to be strictly construed, but that the intention of the legislature must govern in their construction. Ex Parte Rickey, 31 Nev. 82" court="Nev." date_filed="1909-01-15" href="https://app.midpage.ai/document/ex-parte-rickey-6670646?utm_source=webapp" opinion_id="6670646">31 Nev. 82, 102, 100 Pac. 134, 135 Am. St. Rep. 651. Of course, if the language of a statute is unambiguous, or its intention clear, there
In what eases it was the intention of the legislature that section 41 should apply is not clear. It is not our duty to arbitrarily fasten its provisions upon a situation, simply because of doubt as to the legislative intent. On the other hand, being a criminal provision, and doubt existing, it is our duty to so construe the statute as to exclude the idea that it was intended to apply to the situation in hand.
It is also contended that the history of the act in question, or at least section 35 thereof, is such as j ustifies the position of the respondent. We see nothing in the history of the act, as an entirety, upon which the least argument can be based to support that theory. Section 35 is substantially the same as a certain section incorporated in the railroad commission act (Rev. Laws, 4576) and in the public service commission act (Rev. Laws, 4542), and it may be that the section in question was taken from those statutes. But, if this be true, we do not think that there can be any basis for the contention made. At most, we could only be expected to adopt an interpretation put upon the section when construed as a part of the acts mentioned. The question before us is as to whether section 35 or section 41 applies to the case in hand, and not as to the interpretation to be
Taking these views, it is unnecessary to consider the other points made, since it -follows that the petitioner must be discharged.
It is ordered that the petitioner be discharged from the custody of the sheriff.