THE STATE OF WASHINGTON, Petitioner, v. KENNETH WAYNE WALLS, Respondent.
No. 42305
En Banc.
December 7, 1972.
Petition for rehearing denied February 15, 1973.
81 Wn.2d 618
HAMILTON, C.J., FINLEY, ROSELLINI, STAFFORD, WRIGHT, and UTTER, JJ., concur.
HALE, J. (concurring in the result)—I agree with this court that the plaintiffs lack standing to prosecute the action. But I agree, too, with the Court of Appeals that, under the constitutions and the separation of powers principle, the courts lack the general power to directly supervise the executive branch of government.
Phelps R. Gose (of Sherwood, Tugman, Gose & Reser), for respondent.
Robert E. Schillberg, Prosecuting Attorney, and David G. Metcalf, Deputy, amici curiae.
HUNTER, J.—The defendant (respondent), Kenneth Wayne Walls, was charged in the Superior Court for Walla Walla County with the crime of grand larceny by false representations, the information being filed September 27, 1968, and alleging as follows:
That the said Kenneth Wayne Walls in the county of Walla Walla, State of Washington, on or about the 17th day of September 1968, being then and there did wilfully, unlawfully and feloniously with intent to deprive and defraud, fraudulently and feloniously by false and fraudulent representation did then and there obtain from the Royal Motor Inn goods and merchandise in the amount of $219.99, contrary to the form of the Statute in such cases made and provided, and against the peace and dignity of the State of Washington.
The record shows that the defendant accumulated charges in the amount of $219.99 at a restaurant purportedly associated with the Royal Motor Inn in Walla Walla. He presented a BankAmericard belonging to one John J. Keenan to cover the charges and represented that he had authority to sign the draft on Keenan‘s behalf. The draft was subsequently returned to the National Bank of Commerce unpaid. In view of our disposition of the case, it would serve no good purpose to detail the lengthy series of events involving a spontaneous business venture which
The defendant was tried before a jury and convicted on one count of grand larceny. His motion for a new trial was denied. On appeal, the Court of Appeals, Division Three, reversed the conviction and dismissed the case, holding that the defendant cannot be convicted of a felony for obtaining goods and merchandise from a restaurant by false and fraudulent representation under the larceny statutes, specifically
The basic issue in this case is whether the defendant was improperly charged and convicted of a felony under the larceny statutes,
The relevant portions of the statutes with which we are concerned are as follows:
[RCW] 9.54.010 . . . Every person who, with intent to deprive or defraud the owner thereof—(2) Shall obtain from the owner or another the possession of or title to any property, real or personal, by color or aid of any order for the payment or delivery of property or money or any check or draft, knowing that the maker or drawer of such order, check or draft was not authorized or entitled to make or draw the same, or by color or aid of any fraudulent or false representation, personation or pretense or by any false token or writing or by any trick, device, bunco game or fortune-telling; or
Steals such property and shall be guilty of larceny.
[RCW] 9.54.090 . . . Every person who steals orunlawfully obtains, appropriates, brings into this state, buys, sells, receives, conceals, or withholds in any manner specified in RCW 9.54.010 —(6) Property of the value of more than seventy-five dollars, in any manner whatever; shall be guilty of grand larceny and be punished by imprisonment in the state penitentiary for not more than fifteen years.
[RCW] 9.45.040 . . . Every person who shall obtain any food, lodging or accommodation at any hotel, restaurant, boarding house or lodging house without paying therefor, with intent to defraud the proprietor or manager thereof, or who shall obtain credit at a hotel, restaurant, boarding house or lodging house by color or aid of any false pretense, representation, token or writing, or who after obtaining board, lodging or accommodation at a hotel, restaurant, boarding house or lodging house, shall abscond or surreptitiously remove his baggage therefrom without paying for such food, lodging or accommodation, shall be guilty of a misdemeanor.
(The above three statutes were a part of the Laws of 1909, ch. 249.)
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[RCW] 19.48.010 . . . Any building held out to the public to be an inn, hotel or public lodging house or place where sleeping accommodations, whether with or without meals, or the facilities for preparing the same, are furnished for hire to transient guests, in which fifteen or more rooms are used for the accommodation of such guests, shall for the purposes of this chapter and chapter 60.64, or any amendment thereof, only, be defined to be a hotel, and whenever the word hotel shall occur in this chapter and chapter 60.64, or any amendment thereof, it shall be construed to mean a hotel as herein described.
[RCW] 19.48.110 . . . Any person who shall wilfully obtain food, money, credit, lodging or accommodation at any hotel, inn, boarding house or lodging house, without paying therefor, with intent to defraud the proprietor, owner, operator or keeper thereof; or who obtains food, money, credit, lodging or accommodation at such hotel, inn, boarding house or lodging house, by the use of any false pretense; or who, after obtaining food, money, credit, lodging, or accommodation at such hotel, inn, boarding house, or lodging house, removes or causesto be removed from such hotel, inn, boarding house or lodging house, his or her baggage, without the permission or consent of the proprietor, manager or authorized employee thereof, before paying for such food, money, credit, lodging or accommodation, shall be guilty of a gross misdemeanor.
(The above two statutes were a part of the Laws of 1915, ch. 190.)
The defendant contends that procuring meals by fraud from a restaurant or hotel comes exclusively within the provisions of
It is the general rule that a statute is to be considered as a whole when ascertaining its intended effect, Markham Advertising Co. v. State, 73 Wn.2d 405, 439 P.2d 248 (1968); 2 J. Sutherland, Statutory Construction § 4073 at 336 (3d ed. F. Horack 1943). We have previously held that where general and special laws are concurrent, the special law applies to the subject matter contemplated by it to the exclusion of the general law. Mercer Island v. Walker, 76 Wn.2d 607, 458 P.2d 274 (1969); Airway Heights v. Schroeder, 53 Wn.2d 625, 335 P.2d 578 (1959); State v. Davis, 48 Wn.2d 513, 294 P.2d 934 (1956); State v. Becker, 39 Wn.2d 94, 234 P.2d 897 (1951). And a related rule holds that where a general statute and a subsequent special law relate to the same subject, the provisions of the special statute must prevail. Mercer Island v. Walker, supra; State v. Collins, 55 Wn.2d 469, 348 P.2d 214 (1960). Both
The legislature further, by Laws of 1915, ch. 190, enlarged upon Laws of 1890, a prior enactment, and established a complete act dealing with the liability and protection of hotel keepers, innkeepers and lodging house keepers. Specifically, section 7 of the Laws of 1915, ch. 190, which is now codified as
From an examination of the foregoing statutes, it is clear that the defendant was erroneously charged and convicted under inapplicable larceny statutes. There is no evidence in the record to indicate the number of rooms in the Royal Motor Inn and we do not know whether, in fact, the restaurant was a part of the operation of the Royal Motor Inn which would bring the alleged crime under the purview of
The decision of the Court of Appeals in reversing the judgment and sentence and dismissing the case is affirmed. Since the disposition of this case does not constitute the
HAMILTON, C.J., FINLEY, ROSELLINI, WRIGHT, and UTTER, JJ., concur.
HALE, J. (dissenting)—Defendant was charged with and convicted of fraudulently obtaining $219.99 worth of goods and merchandise from the Royal Motor Inn. The court now holds that, because the named victim is the Royal Motor Inn, the crime, regardless of the amount obtained, cannot be deemed a felony but must be regarded only as a gross misdemeanor under the innkeeper‘s statute (
In reaching this conclusion, the court fails to apply that most fundamental rule of statutory construction: to harmonize, wherever possible, statutes which seemingly have some areas of conflict or overlap so that the intention of the legislature may first be ascertained and then applied. Beach v. Board of Adjustment, 73 Wn.2d 343, 438 P.2d 617 (1968); State v. Kristofferson, 58 Wn.2d 317, 362 P.2d 596 (1961); 82 C.J.S. Statutes § 369 (1953).
The problem is essentially one of statutory construction. Where two statutes dealing with the same subject matter to be given effect must be read in pari materia, the specific ordinarily will control the general, but that rule applies
In State v. Becker, 39 Wn.2d 94, 234 P.2d 897 (1951), upon which this court‘s opinion appears to depend, we held that unlawfully obtaining old age assistance by means of false and fraudulent representation in excess of the petit larceny amount did not amount to grand larceny under the general criminal statute despite the amount unlawfully obtained. The offense, we thought, fell within the public assistance laws concerning the elderly which made it a misdemeanor to obtain public assistance by such false and fraudulent means. But the similarity there with respect to overlapping statutes—an almost universal problem in these days of cyclopedic legislation—to the present case is quite superficial, for in that situation, the state had enacted a comprehensive code establishing and maintaining the old age assistance system—a code governing the state department of public assistance, the state treasury, and the recipients of old age assistance alike. That case held simply that a comprehensive reenactment of the public assistance laws applicable to senior citizens and affecting the public treasury, but leaving unchanged the misdemeanor section
No such legislative intention can be found in the innkeeper statutes. We have here no comprehensive statutory scheme regulating the operation of hotels, innkeepers, restaurants and guests alike nor controlling the state treasury as it affects them. There is an absence of regulations controlling the conduct or prescribing the means and methods of those aspiring to be patrons of hotels and restaurants. Nothing about the innkeeper statute shows a legislative intention to oust the general criminal code as it relates to innkeepers generally, nor bespeaks a legislative intention to vacate the general larceny statutes particularly as they affect the act of bilking an innkeeper or restaurant proprietor of food, lodging and other related services. In short, the statute does not attempt to regulate a business or establish a class and legislate with respect to it. It merely defines different crimes and prescribes different punishments therefor.
The various criminal codes of this country are replete with overlaps and redundancies. To cite but a few,
State v. Marcus, 104 Ariz. 231, 450 P.2d 689 (1969), affords another example. There the conviction of a licensed physician for unlawfully dispensing narcotics was held good under the general narcotics statute although conceivably the charge could have been brought under the section regulating the sale of narcotics by physicians. In People v. Cohen, 12 Cal. App. 3d 298, 90 Cal. Rptr. 612 (1970), the statute regulating the insurance industry made it a misdemeanor to submit false claims to an insurance company. The accused, an attorney, was nevertheless held properly charged and convicted of grand theft under the general criminal code on the theory that the submission of the false claim constituted a misdemeanor, but collecting an amount on such false claim in excess of the petit larceny maximum constituted the felony of grand theft.
The rationale of these cases is that, if the language of either statute is sufficiently certain to avoid the bane of vagueness, that is, can be understood by a person of reasonable and ordinary understanding, then the court must ascertain and apply the legislative intent. Wherever possible, the court should harmonize and reconcile the seeming conflicts so that all sections can be given effect where applicable.
The legislature, I think, made its purpose clear. It did not intend to make light of hotels, innkeepers and restaurateurs but instead to afford those businesses an added protection from fraud and swindle. It intended, I think, that if one operates a bunco against them so as to deprive them of their wares and services in excess of the statutory petit larceny amount, this would constitute the felony of grand larceny.
STAFFORD, J., concurs with HALE, J.
Petition for rehearing denied February 15, 1973.