21 Wash. 349 | Wash. | 1899
The opinion of the court was delivered by
The respondents were accused, by an information filed by the prosecuting attorney of Whitman
“.The said Ben Binnard, Charles Schultz and Jack McVey in the county of Whitman, in the state of Washington, on the 18th day of September, eighteen hundred and ninety-eight, did wilfully and unlawfully keep open a drinking saloon; the said drinking saloon then and there being the drinking saloon known as the ‘Elite/ and the said 18th day of September, 1898, then and there being the first day of the week, which is commonly called Sunday, contrary to the form of the statute,” etc.
The defendants (respondents here) demurred to the information on the grounds, among others not necessary to mention: (1) “Because the facts stated in said information do not constitute a crime under the laws of the state of Washington;” and (3) “because said section 210 of Hill’s Penal Code, on which said information is based, has been and now is repealed by implication by the subsequent enactment of section 211 of Hill’s Penal Code.” This demurrer was sustained by the court and the information set aside, and the defendants were discharged. The state has appealed, and assigns these several rulings and decisions of the court as error.
It is conceded that this information is founded upon § 210 of Hill’s Penal Code (Bal. Code, § 1250), which reads as follows:
“Any person who shall keep open any play house or theater, race ground, cock pit, or play at any game of chance for gain, or engage in any noisy amusements, or keep open any drinking or billiard saloon, or sell or dispose of any intoxicating liquors as a beverage, on the first day of the week, commonly called Sunday, shall, upon conviction thereof, be punished by a fine not less than thirty dollars nor more than two hundred and fifty dollars. All fines collected for violation of this section shall be paid into the common school fund.”
We think it is apparent that the information charges a crime under § 210 of the Penal Code, and, if this section is still in force, the demurrer should not have been sustained. But it is claimed by the learned counsel for the respondents that so much of said § 210 as relates to the opening of drinking saloons on Sunday was repealed by the subsequent enactment of § 211, which reads as follows:
“ It shall be unlawful for any person or persons of this state to open on Sunday for the purpose of trade, or sale of goods, wares and merchandise, any shop, store or building or place of business whatever; provided, that this section shall apply to hotels only in so far as the sale of intoxicating liquors is concerned, and shall not apply to drug stores, livery stables or undertakers. Any person or persons violating this section shall be guilty of a misdemeanor, and on conviction thereof shall be fined in any sum not less than $25 nor more than $100.” Bal. Code, § 7251.
It is strenuously insisted on behalf of the respondents that this latter section repeals that portion of the former
*353 “An affirmative statute repeals by implication so much of the prior law as, after the harmonizing work of interpretation is fully done, remains repugnant to it; for it is the last expression of the will of the law making power. If two acts in seeming conflict can be reconciled by any fair construction, so that both may stand, they must be; and then no repeal will be held to take place. And it is the same with a provision of the common law and a statute. . . . The law does not favor repeals by implication, and they will not be adjudged to occur except when they are inevitable, or plainly the legislature means them. Such legislative intent is never, prima facie, presumed. Hence, in restraint and limitation of repeals, the statutes are strictly construed. Thus, as already seen, statutes in derogation of the common law, or of a prior statute, are construed strictly, not operating beyond their words or the clear repugnance of their provisions; that is, the new displaces the old only as directly and irreconcilably opposed in terms. For when the legislative power professes to add to the law, as it does in the enactment of an affirmative statute, we cannot assume for it an intention also to subtract from it; while there is any admissible rule of interpretation which, applied to the old, to the new, or to both, will enable all to stand. For example, the rule of specific and general, already more than once mentioned, illustrates this. By interpreting the specific provisions as furnishing exceptions and qualifications for the general ones, without reference to their order or dates, all are made to stand together, and repeal is avoided.” Bishop, Statutory Crimes (2d ed.), §§ 154-156.
Here we have two statutes seemingly in conflict, but one is specific and the other general; and, applying the rule as above laid down by Mr. Bishop, and which we deem the correct one, we are led to the conclusion that both statutes can stand together, and that § 211 does not repeal § 210 in the particular mentioned.
But it is urged by counsel for the respondents that the two sections in question are irreconcilably in conflict with each other, for the reason, if for no other, that the punish
Both on reason and authority, it is plain that a change of punishment does not necessarily repeal the law creating the crime. In fact, it is sometimes the case that a crime is defined by one statute and the punishment prescribed by another. The most that can be claimed for § 211 is that it prescribes a milder punishment for the sale of intoxicating liquors than is ordained by § 210. Section 211, in terms, relates only to the sale of intoxicating liquors, and that by hotel keepers; whereas, as we have seen, it is a separate offense, under § 210, to Iceep open drinking saloons on the prohibited day, for any purpose whatever.
The judgment is reversed and the cause remanded, with directions to overrule the demurrer.
GrOBDON, C. J., and Beavis, Duetbab and Bullebtom, JJ., concur.