The opinion of the court was delivered by
The State appeals from a judgment of the Appellate Division reversing defendant’s conviction of unlawful possession of marijuana, in violation of the Uniform Narcotic Drug Law. B. 8. 24:18-1 et seq. (hereinafter called the Drug Act). The defendant cross appeals from that part of the judgment which directed a remand.
Defendant allegedly rolled marijuana cigarettes at a private party. It is not clear from the evidence whether the cigarettes were intended for his own use or that of others. He was convicted under section 4 of the Drug Act (B. 8. 24:18-4), which prohibits the unauthorized possession of narcotics; and was sentenced, as a first offender, to a fine of $50 and two to three years imprisonment. The Appellate DivL sion held that in passing N. J. 8. 2A :170-8, which makes the unauthorized use of narcotics a disorderly persons offense, the Legislature impliedly removed from the operation of the Drug Act possession which is “solely for * * * [the possessor’s] imminent use.” The case was accordingly remanded to the trial court on the ground the defendant was entitled to a jury instruction that if he possessed the marijuana solely for his own imminent consumption, he was not guilty of the offense charged. 62 N. J. Super. 303, 322 (1960). We granted the State’s petition, and the defendant’s cross petition, for certification. 33 N. J. 334 (1960).
The State argues that section 4 of the Drug Act was intended to proscribe all unauthorized possession, including possession for personal consumption—imminent or otherwise;
We first consider whether, as argued by the State, unauthorized possession for personal consumption—imminent or otherwise—was originally intended to be a violation of the Drug Act. That statute was promulgated by the Commissioners on Uniform State Laws and was adopted by New Jersey in 1933. L. 1933, c. 186. Section 4 (section 2 of the Uniform Act) provides:
“It shall be unlawful for any person to manufacture, possess, have under his control, sell, prescribe, administer, dispense or compound any narcotic drug, except as authorized by this chapter.” (Emphasis added) R. 8. 24:18-4.
Drug addiction or use has never been a violation of this or any other section of the act. Use is ordinarily preceded by the user’s possession of the drug. Does it follow that such possession was also intended by the Legislature to be exempt from the penal sanctions of the Drug Act? We think not, for the following reasons:
Eirst, had the Legislature intended to limit the possession denounced by section 4, it could readily have done so by making it a crime to possess “with intent to sell, administer, dispense, compound, etc.” Instead, it employed the unqualified term “possess.” “Possess,” as used in criminal statutes, ordinarily signifies an intentional control of a designated thing accompanied by a knowledge of its character. State v. Labato, 7 N. J. 137, 148 (1951). On its face, therefore, section 4 would seem to apply to all unauthorized persons who knowingly exercise control over narcotic drags.
Secondly, section 4 of the Drug Act provides that “it shall be unlawful for any person to * * * possess
Einalfy, other jurisdictions have recognized that section 2 of the Uniform Act (which is the same as our section 4) proscribes all unauthorized possession, including that for the possessor’s own use.
E. g., Peachie v. State,
203
Md.
239, 100
A. 2d
1
(Ct. App.
1953);
State v. Martin,
193
La.
1036, 192
So.
694
(Sup. Ct.
1939);
Tomlin v. State,
338
S. W. 2d 735 (Tex. Cr. App.
1960);
Comment,
“Uarcotics Regulation,” 62
Yale L. J.
751, 779 and nn. 171, 172 (1953). But see
Commonwealth v. Warner,
87
Pa. Dist. & Co. R.
91
(Ct. Quar. Sess.
1954) (interpreting a statute similar to
For the foregoing reasons, we conclude that when our Legislature adopted the Drug Act, it intended the possession proscribed in section 4 to include unauthorized possession for personal consumption—imminent or otherwise.
We next consider what effect the Legislature intended the passage of N. J. S. 2A :170-8 (hereinafter called the Use Act) to have upon section 4 of the Drug Act. The Use Act, as amended, provides in pertinent part:
“Any person who uses or who is under the influence of any narcotic drug, as defined in article 1 of chapter 18 of Title 24 of the Revised Statutes (Rood and Drugs), the uniform narcotic drug law, for a purpose other than the treatment of sickness or injury as prescribed or administered by a person duly authorized by law to treat sick and injured human beings, is a disorderly person.”
The Appellate Division, expressly disclaiming any holding of implied repealer, said at various parts of its opinion that the intended effect of passing the Use Act was .to “constrict,” “eliminate,” “excise,” or “remove” from the scope of the Drug Act “such possession of narcotics as is either inseparable from actual use thereof by the accused, or solely of a nature necessarily incidental to imminent actual use by him.” However phrased, the statutory interaction described by the court below has traditionally been known as an implied repealer. See,
e. g., Two Guys from Harrison, Inc. v.
Furman, 32
N. J.
199, 223-225 (1960). We emphasize this because, for well-established reasons relating to the separation of powers in a tripartite system of government, courts are justifiably reluctant to find that one statute impliedly repeals the whole or part of another unless there
We first consider the statutory development. As previously mentioned, the Drug Act was passed in 1933. L. 1933, c. 186. Sections 4 and 36 have never been amended. There have been, however, two amendments to section 47 (N. J. 8. A. 24:18-47), which prescribes the penalties for violation of section 4. As originally enacted, section 47 provided that violations of the act were punishable as high misdemeanors, that is, with a maximum of seven years imprisonment. L. 1933, c. 186, Art. IY, § 12. In 1951, section 47 was amended to provide for a fine of not more than $2,000 and imprisonment for a period of two to five years for the first offense, five to ten years for the second offense, and ten to twenty years for subsequent offenses. L. 1951, c. 56. Einally, in 1952, section 47 was again amended; this time to increase the maximum penalties to fifteen years, twenty-five years and life imprisonment for first, second, and subsequent offenses respectively. L. 1952, c. 90. In addition, the probation statute (N. J. 8. 2A :168-1 et seq.) was amended to prohibit the courts from suspending sentence or granting probation in any case involving violation of the Drug Act unless the defendant is a first offender. L. 1952, c. 267 (N. J. 8. 2A:168-1).
Narcotics addiction or use, as such, was first made an offense in New Jersey in 1948, when the Legislature included “common drug addicts” in the Disorderly Persons Act.
L.
1948, c. 135
(B. 8.
2:202-3). The only official explanation for this legislative action was a statement annexed to the hill that it was “to aid in the control of common drug addicts who are a danger both to themselves and to the public.”
Assembly Bill
223,
Legislative Session
1948. In
“Any person who uses a narcotic drug, as defined in article 1 of chapter 18 of Title 24 of the Revised Statutes (Pood and Drugs), the uniform narcotics drug law, for a purpose other than the treatment of sickness or injury as prescribed or administered by a person duly authorized by law to treat sick and injured human beings, is a disorderly person.”
Pinally, in 1957, N. J. 8. 24 :170-8 was amended to make one who is “under the influence of” a narcotic drug also a disorderly person, and to provide that:
“In a prosecution under this chapter, it shall not be necessary for the State to prove that the accused did use or was under the influence of any specific narcotic drug or drugs, but it shall be sufficient for a conviction under this chapter for the State to prove that the accused did use or was under the influence of some narcotic drug or drugs as defined in article 1 of chapter 18 of Title 24 of the Revised Statutes (Pood and Drugs), by proving that the accused did manifest physical and physiological symptoms or reactions caused by the use of any narcotic drug.” (L. 1957, c. 109)
As previously mentioned, the other source for ascertaining what effect the Legislature intended passage of the Use Act to have on the operation of the Drug Act is the reports submitted to the Legislature by various governmental groups assigned the responsibility of studying and recommending changes in our narcotics laws. (It should be noted that none of these reports expressly says the Use Act was or was not intended to remove possession for imminent personal consumption from the operation of the Drug Act. Either conclusion, therefore, to the extent it relies on these reports, must be based on inference.) The Legislature had before
The defendant argües that the development of the Drug and Use statutes, as described above, and the aforementioned reports show a legislative intent to repeal from section 4 of the Drug Act at least that possession which is for the possessor’s imminent consumption. He arrives at this conclusion by the following reasoning: By providing increasingly severe penalties for violation of the Drug Act and a relatively mild penalty for violation of the Use Act, the Legislature demonstrated its intention to differentiate between traffickers and users. The reports of our narcotic study groups show this distinction is rooted in a recognition that the user is primarily a subject for medical rehabilitation. A user ordinarily has possession of the drug before self-administration. To subject him to prosecution under the Drug Act because of this possession would be to contravene the legislative policy of distinguishing traffickers from users, and of providing for the rehabilitation of the latter.
We note at the outset that rehabilitation of a user may be accomplished under the Drug as well as under the Use Act. Under both statutes, the accused is first convicted as a narcotics offender. Rehabilitation in this context therefore must refer to how the offender is handled after conviction. Incarceration in the county jail is no more calculated to accomplish his cure than incarceration in the state prison. What is required for successful medical rehabilitation is transfer to a custodial treatment facility for initial cure, and control of the offender on an out-patient basis for a substantial period thereafter. See
Report, Supreme Court Committee on the Incarceration and Treatment of
Emphasis on rehabilitation of the user therefore supports defendant’s argument only to the extent that it shows the Legislature regarded the user primarily as a sick, rather than evil, offender—as the victim rather than the villain in the narcotics tragedy. Thus viewed, defendant’s argument may be restated as follows: If the Legislature regarded the offense of the user as less heinous than that of the seller, and the user was thought of as a sick man, then it makes no sense to impose the penalties intended for the seller upon a particular user simply because the latter possesses the cause of his sickness. The answer is that such a disposition does make sense if it is necessary to fulfill the purpose of the Drug Act. As previously indicated, we think it is.
There is no question that the primary purpose of passing the Drug Act was to suppress illegal narcotics traffic. The statute was passed as an all-out offensive to combat the drug evil by eliminating sources of supply. Every step in the scheme of illegal distribution was made a violation of section 4. The only act proscribed by that
In addition, exemption of the user-possessor from prosecution under the Drug Act would, by affirmatively sanctioning potential sources of supply, contravene the legislative policy of eradicating illegal traffic. As previously mentioned, every unregulated possessor has the power to dispense the drugs
The preceding conclusion is supported by the additional consideration that to immunize persons who possess for personal consumption from prosecution under the Drug Act would apparently create a hiatus in narcotics law enforcement. The Use Act does not prohibit possession with intent to use. It proscribes only the actual use, or being under the influence, of a narcotic. (The two phrases are apparently synonymous since “being under the influence of” was added merely to cover an offender who has used or consumed the drug in another jurisdiction. Third Report, New Jersey Commission on Narcotics Control, p. 52 (March 15, 1957).) Therefore, if possession for personal consumption is not a violation of the Drug Act, it is not an offense at all. In view of the comprehensively-implemented legislative policy to outlaw every aspect of unregulated narcotic activity, it is unlikely such a result was intended. It is more likely that when the Legislature passed the various amendments to the Use statute, it did not include possession with intent to use because it understood such possession to be a violation of section 4 of the Drug Act. This conclusion is confirmed by an examination of the language of the Use Act in its various amended forms.
Although the Legislature has devoted its attention on four different occasions to the Use Act, it has never included therein or in the Drug Act a provision expressly
That the Legislature has never intended to repeal that part of the Drug Act which proscribes possession for personal consumption is confirmed by the previously-mentioned reports of narcotic studies which were submitted to the Legislature.
“(A) an increase in the minimum and maximum penalties for first and subsequent offenses for the illegal sale, dispensation, or manufacture of narcotic or addiction producing drugs.”
(and)
“(B) The prohibition of suspended sentences on charges involving the illegal sale, dispensation, manufacture of narcotic or addiction-producing drugs.”
It should be noted that the increased penalties were not to apply to those convicted of possession. Pursuant to this recommendation, in 1956, a bill amending section 47 of the
“The purpose of this amendment was to separate the offense for the illegal sale or manufacture of narcotic drugs from, the offense of illegal possession * * (Emphasis supplied) Id., at p. 41.
If possession were intended to cover only possession with intent to sell, there would have been no reason to exempt the possessor from the increased penalties of the proposed amendment. Certainly the person who possesses with the intent to sell is as culpable an offender as the one who has completed a sale. Possession must therefore have been retained under the proposed amendment as a distinct violation of the Drug Act, not subject to the increased penalties, because it was intended to encompass possession by the non-seller.
Eor all the foregoing reasons, we conclude that passage of the Use Act did not remove from the penal sanctions of the Drug Act possession for the possessor’s personal consumption—imminent or otherwise.
The defendant argues that if possession for imminent personal consumption remains a violation of the Drug Act, then the Act is to that extent unconstitutional as a denial of equal protection of the law. Eor authority he cites
Olsen v.
Delmore, 48
Wash. 2d
545, 295 P.
2d
324
(Sup. Ct.
1956) and
State v.
Pirkey, 203
Or.
697, 281
P. 2d
698
Defendant also argues that if possession for the possessor’s imminent consumption remains a violation of the Drug Act, there is reposed in the prosecutor, when an accused is apprehended in possession and under the influence of narcotics, an unconstitutionally broad discretion to proceed under either the Drug or Use statute. The specific constitutional question here raised was dealt with and rejected by the court in
United States v. Garnes, supra.
There, the defendant was convicted on two counts for violating 21
U. S. 0.
§ 174 and 26
U. S. G.
§ 4724 (c). 21
U. S. G.
§ 174 prohibits the receipt or concealment of a narcotic drug, knowing it to have been imported into the United States contrary to law, and provides that if the defendant is shown to have had possession of the narcotic drug, such possession will be sufficient to sustain conviction unless he explains the possession to the satisfaction of the jury. 26
U. S. G.
§ 4724 (e) makes it unlawful for any person, who has not registered
In the present case, the Drug and Use statutes also define two distinct offenses. Under the Drug Act, the State must prove that the accused had actual or constructive possession of a narcotic drug. (We note that the containment of a consumed narcotic within a person’s blood or respiratory system is not constructive possession.) And under the Use Act, it is sufficient to prove that the accused used or was under the influence of a narcotic. Since the Drug and Use statutes define two distinct offenses, the fact that an accused who possessed and also used or was under the influence of a narcotic could be prosecuted for either offense
We hold that section 4 of the Drug Act proscribes the unauthorized possession of narcotics for any purpose—-including possession for the possessor’s imminent consumption, and that the scope of that proscription was unaffected by passage of the Use Act. The defendant’s cross appeal is therefore moot. The judgment below is accordingly reversed and the trial court’s judgment of conviction is reinstated.
No. A-97:
For reversal—Chief Justice Weirteaub, and Justices Jacobs, Eearcis, Peoctoe, Hall and Schettiro—6.
For affirmance—None.
No. A-98:
For dismissal as moot—Chief Justice Weirteaub, and Justices Jacobs, Eearcis, Peoctoe, Hall and Schettiro—6.
Opposed—None.