183 P.2d 148 | Ariz. | 1947
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *88 C. Dickens, the defendant in the court below, the appellant here, a licensed airplane pilot, was informed against in the Superior Court of Maricopa County for an alleged violation of sec. 48-115, A.C.A. 1939, which charged him with the crime of flying "at such a low level as to endanger the persons on the surface beneath, * * * a misdemeanor." The case was tried before a jury and the defendant found guilty whereupon the court sentenced him to serve thirty days in the county jail and to pay a fine of $300. From the judgment of conviction the defendant has appealed seeking a review of the rulings of the court, particularly with reference to the court's refusal to dismiss the information and to direct a verdict in his favor.
The seven assignments of error raise but two propositions of law that need be considered, the first being that the information does not charge a public offense. It was drawn under sec. 48-115, A.C.A. 1939, which reads as follows: "Any aeronaut or passenger who, while in flight over a thickly inhabited area or over a public gathering within this state, shall engage in trick or acrobatic flying, or in any acrobatic feat, or shall, exceptwhile in landing or taking off, be at such a low level as toendanger the persons on the surface beneath, or drop any object except loose water, loose sand ballast, or loose sheets of paper, shall be guilty of a misdemeanor and punishable by a fine of not more than five hundred dollars ($500), or imprisonment for not more than one (1) year, or both." (Emphasis supplied.)
Although this information was based upon the emphasized portion of the statute, the defendant contends that no offense is stated since there is no allegation in the information that he was flying "over a thickly inhabited area or over a public gathering within this state". Such reasoning overlooks the fact that four offenses are included within the statute by reason of the use of the disjunctive "or", e.g. (1) Trick or acrobatic flying over a thickly inhabited area. (2) Trick or acrobatic flying over a public gathering. (3) Flying at such a low level, except while taking off or landing, as to endanger the persons beneath. (4) Dropping of objects while in flight, except loose water, loose sand, or loose sheets of paper.
The statute is clear, certain, and unambiguous in its meaning, and, therefore, is not subject to construction. Palmcroft *90
Development Co. v. City of Phoenix,
Finally, defendant attempts to bolster his strained construction of this statute by claiming that any other interpretation would prohibit crop dusting by plane. The statutory words themselves dispel this contention by prohibiting low flying only when it is such "as to endanger the persons on the surface beneath".
Defendant Dickens' second proposition of law is that even if the information charges him with a public offense, still he was entitled to an instructed verdict when, at the trial, he pled immunity from state prosecution by invoking, as a matter of defense, the fact that he was amenable to criminal prosecution for the same offense by the United States. He relies upon sec.
Though it goes undenied by the State that defendant properly pled his possible subjection to United States prosecution as a defense, and though federal laws do prohibit the kind of dangerous low flying indulged in by this defendant, still, the penalty provided under federal law for this offense is, we believe, a civil one; while Arizona's immunity statute, as we read it, contemplates immunity from State prosecution only in the event of the possibility of criminal prosecution by the United States. *91
That this is the import of our immunity statute, sec.
More specifically, the Civil Aeronautics Board set up by the Federal Government is empowered to issue rules and regulations to aid in carrying out its duties as prescribed by the Federal Civil Aeronautics Act, 49 U.S.C.A. § 425. 49 U.S.C.A. § 551(a) (7), being a part of this Act, makes it the duty of this Board to prescribe air traffic rules governing flight altitudes; and once such rules are made, it is unlawful to violate them. 49 U.S.C.A. § 560(a) (5). Such rules were, in fact, promulgated under the title of Civil Air Regulations, sec. 60.-105(b) of which prohibits, among other things, flight over noncongested areas at altitudes less than 500 feet (with certain exceptions not here applicable).
The difficulties here revolve, in part, around the nature of the federal penalty for such violation. 49 U.S.C.A. § 622(a) provides:
"Criminal Penalties
"(a) Any person who knowingly and willfully violates any provision of this chapter (except subchapters V, VI, and VII), or any order, rule, or regulation issued under any such provision * * * for which no penalty is otherwise herein provided, shall be deemed guilty of a misdemeanor and upon conviction thereof shall be subject for the first offense to a fine of not more than $500, and for any subsequent offense to a fine of not more than $2,000. If such violation is a continuing one, each day of such violation shall constitute a separate offense." (Emphasis supplied).
That part of the Act which makes it the duty of the Board to issue regulations governing flight altitudes, 49 U.S.C.A. § 551(a) (7), is found in subchapter VI of the Act, the violations of which are specifically exempted from criminal penalties by 49 U.S.C.A. § 622(a), quoted supra, but are subject, instead, to civil penalties by the specific provisions of 49 U.S.C.A. § 621(a) set forth, in part, below:
"Civil Penalties
"(a) Any person who violates (1) any provision of subchapters V, VI, and VII of this chapter * * * shall be subject to a civil penalty of not to exceed $1,000 for each such violation * * *"
Defendant artfully contends that the exemption from criminal penalty extends to the provisions in the three subchapters but not to the rules and regulations issued under the authority derived therefrom. Such a strained construction of this exemption would all but nullify its effect and does not merit refutation. Defendant further attempts to bolster his case by reference to 49 U.S.C.A. § 425(a), falling under subchapter II of the Act, which, in general terms, gives the Board power to issue rules appropriate to the carrying out of its duties. Then, by claiming that the rules in regard *92
to flight altitudes might have been promulgated under this section of the act, defendant contends that such rules are, therefore, not exempt from criminal penalties. But it is a well-settled rule of statutory construction that the specific controls over the general, State v. Lumbermen's Indemnity Exchange,
Finally, defendant points out that 49 U.S.C.A. § 647(b) (which describes the method by which actions for violations of the Civil Aeronautics Act shall be instituted) says, in effect, that for all violations of the Act it shall be the duty of any United States District Attorney to prosecute. And reasoning therefrom, defendant maintains that he is subject to such prosecution. It is true that the words "to prosecute" and "prosecution" usually have reference to criminal proceedings, United States v. Reisinger,
Therefore, the above-quoted section of the Federal Civil Aeronautics Act is of no help in determining whether in contemplation of federal law this offense is civil or criminal. Instead, we must look to 49 U.S.C.A. §§ 622 and 621 which impose punishments for violations of the Federal Civil Aeronautics Act, titled "criminal" and "civil penalties", respectively. Sec. 622 thereof, imposing the "criminal penalties", in addition to labeling the penalty "criminal", characterizes the pecuniary part of the punishment as a "fine". Section 621, however, under which the action against this defendant would be classified, not only is titled "civil penalties", but it characterizes the pecuniary punishment as a "civil *93
penalty". As Justice LaPrade so ably pointed out in Frazier v. Terrill, Ariz.,
The State contends that the Arizona Aeronautics Act contains contradictions and ambiguities, and for this reason is subject to construction by reference back to the legislative journals, etc. And, by use of such reference back, the State maintains that the legislature never intended the exemption statute, sec.
Finally, having concluded that the information charged the defendant with the commission of a public offense under the laws of Arizona, and that he was not amenable to criminal prosecution under the laws of the United States, we have no occasion to consider the constitutionality of sec.
Judgment affirmed.
STANFORD, C.J., and LaPRADE, J., concurring. *94