In a non-jury trial defendant was convicted of Criminal Activity in Drugs, ORS 167.207(1), i.e., possession of marihuana. On appеal his sole contention is that possession of narcotic drugs, which includes marihuana, ORS 474.010(18), is not a сrime under Oregon’s new criminal code. We hold to the contrary and affirm.
Under the statutes in effeсt before the first of this year the principal criminal provision concerning narcotic drugs was former ORS 474.020, which provided :
“(1) 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 in this chapter.
On January 1, 1972 — the effective date of the new criminal code — former ORS 474.020 was repealed and the following provisions became effective:
“A person commits the crime of criminal activity in drugs if he knowingly and unlawfully manufactures, cultivates, transports, possesses, furnishes, prescribes, administers, dispenses or compounds a narcotic or dangerous drug.” ORS 167.207(1).
“ 'Unlawfully’ means in violation of any provision of ORS chapter 474 or 475.” ORS 167.202(4).
*273 Thus under these new statutes, it is a crime tо possess narcotic drugs in violation of any provision of ORS ch 474.
Defendant argues that becаuse of the repeal of former ORS 474.020(1) there is no provision of ORS ch 474 that prohibits the possessiоn of narcotic drugs, and therefore possession of such drugs is never “unlawful” for purposes of ORS 167.207(1).
This аnalysis reads the phrase, “unlawfully * * * possesses,” out of ORS 167.207(1). That is, if defendant is correct, it is impossible tо unlawfully possess narcotic drugs. In addition, defendant’s analysis renders meaningless the explicit pеnalty provision for conviction “for possession of less than one avoirdupois ounce of marihuana * * ORS 167.207(3).
In applying these statutes we must give effect to every section, clause, рhrase and word of the legislative act.
Blyth & Co., Inc. v. City of Portland,
In giving effect to the phrase, “unlawfully * * * possesses,” in ORS 167.207(1), the intention of the
*274
legislature is controlling. OES- 174.020.
②
Defendant contends the statutory language is plain and unambiguous, and that we are therefore limitеd to the words used by the legislature in determining its intent. We disagree. Since defendant’s “plain and unambiguous” rеading of the statutes in question renders certain parts thereof meaningless, we hold the statutes аre sufficiently ambiguous to merit consideration of legislative history.
See, State Highway Com. v. Rawson,
The legislative history of the new criminal code makes it clear that the legislature intended to reenact the substance of the prior law on this subject, i.e., possession of narcotics would be unlawful under the new code in those situations in which it was unlawful under prior law. The Criminal Law Eevision Commission’s Commentary to OES 167.207 (Section 274 оf the Proposed Criminal Code, p 263) states:
“Section 274 penalizes a broad range of illicit drug activity, including its manufacture, distribution, sale, possession and administration * * *.
“The mens rea requirement is that the conduct be ‘knowing’ and ‘unlawful.’ ‘Unlawfully’ means that -the drug transaction is in violation of those Oregon statutes outside the сriminal code that-govern lawful drug activity, e.g., OES chapters 474 and 475v
ÍÍ& # # sfc
“OES 474.020, prohibiting unlawful dealing in *275 narcotic drugs, would be repealed * * (Emphasis in original.)
The Commentary to OES 167.202 (Section 273 of the Proposed Criminal Code, p 274) states:
“ ‘Unlawfully’ is defined to mean in violation of OES chapter 474 or 475 which establish the procedures and conditions whereby narcotic and dаngerous drugs may be legally manufactured, transported, sold and possessed.
“The definitions in % 273 represent a restatement of existing law * * (Emphasis supplied.)
The Commentary to Section 313 of the Proposed Criminal Codе, p 281, which amended OES 474.990 to eliminate the prior penalty for possessing narcotic drugs, states:
“This sеction deletes penalty provisions that will be unnecessary if § 274, criminal activity in drugs, is adopted * * *.”
These passages make it clear that the draftsmen of the code and the legislature did not intend to change the preexisting status of narcotic drugs. The legislature regarded OES ch 474 as a cоmprehensive scheme for controlling all aspects of narcotic drugs. Under OES ch 474 certаin activity in narcotic drugs is lawful. The legislature intended to define as unlawful all conduct with respect to narcotics that is not explicitly lawful under OES ch 474. In light of the legislative history, we interpret OES 167.207(1) as exрressing that intent.
Affirmed.
Notes
See also ORS 174.010 which provides:
“In the construction of a statute, the office of the judge is simply to ascertain and declare what is, in terms or in substance, contained therein, not to insert what has been omitted, or to omit what has been inserted; and where there are several provisions or particulаrs such construction is, if possible, to be adopted as will give effect to all.”
ORS 174.020 provides: •
“In the construction of a statute the intention of the legislature is to be pursued if possible; and when a general аnd particular provision are inconsistent, the latter is paramount to the former. So a particular intent shall control a general one that is inconsistent with it.” -