*1 his and deduc- gross (less income of business exemptions tions), in this case credit. extending the business of held that tax 28.45
We have under RCW imposed Mahler v. sale of real estate an upon excise tax. Tremper, 405, 243 P.2d It would be Wn.2d say inconsistent tax measured selling price an tax, land is excise one but measured the interest received on deferred The tax in payments is tax. property that case was levied upon transaction. The tax here is levied in a upon privilege engaging business activity. Both excise taxes.
The judgment affirmed. J., Finley, Weaver, C. Hunter, Hamilton, Hale, Neill, JJ., J. Pro Tem., concur. Stafford, Hill, May 40223. En 14, 1970.] Banc. [Nos. Respondent, v. Robert A. State of Washington, * al., et Appellants. Zornes
*Reported in
Peterson, respondent. Rabideau, J. for C. wife, who defendants, J. The husband
Rosellini, years age the trial of this 22 of time of were both at the guilty of 69.33.410 action, of a violation were found (the Drug Act). upon The evidence Uniform Narcotic a half dozen that about were convicted showed night August 11, 1967. their home on the officers raided lying time, at the watch- were the lawn The defendants ing premises thorough uncov- A search for meteors. garbage cigarette marijuana and a cans ends ered some marijuana in match box. few bits defendants discloses, neither the record Insofar as a crime. The defendant convicted of had ever been before years sentence of a minimum Zornes received Robert years penitentiary, in the state while of 20 a maximum sentencing for Zornes was deferred defendant Jenice year county jail. spend years. ordered to She was legis- pending court, before this case this
While Ses., 256, which 1969, 1st Ex. ch. lature enacted Laws case) pertinent present (in provides portions to the those follows: chapter
Sec. 7. Section 27, Laws of 1959 RCW 69.33.220are each amended to read as follows: following phrases, chap- words and in this used following meanings, ter, shall have the unless the context requires: otherwise (13) drugs” any “Narcotic leaves, mean coca . . . drugs relating to which the federal laws to narcotic drugs may apply; any drug now found the board pharmacy, addiction-forming ... to have or ad- diction-sustaining liability morphine similar to or co- caine, . . . That narcotic shall not Provided, provisions chapter include cannabis and the shall ever cannabis. form of chapter Sec. 9. Section 6, 71, of 1939 as last Laws chapter amended section 1, Laws 1967and RCW 69.40.060are each amended to read as follows: (2) . . . person, It shall be unlawful firm or corporation tribute give away, exchange sell, barter, or dis- any part *3 plant L., Cannabis Sativa com- monly known as marihuana, . . . chapter Sec. 10. 2, Section 6, of 1939as amended Laws by chapter section 23, 38, Laws of and 1963, RCW 69.40.070are each amended to read as follows: any provision chapter Whoever violates of RCW, 69.40 solely drug and said violation involves the cannabis, com- monly upon as known marihuana, shall, conviction, be imprisoned provided: fined and as herein (1) guilty offense, For the first the offender shall be of punishable by misdemeanor, exceeding and a fine not by imprisonment county five hundred dollars or in the jail, exceeding not six months, or both such fine and imprisonment; chapter 11. Sec. There is added to 69.40 RCW new section to read as follows: by Washing- Cannabis as now or hereafter defined pharmacy
ton drug state board shall be a accordingly herein subject and shall be to the defined provisions considered a chapter 69.40 RCW and shall not be drug accordingly subject and not to provisions chapter 69.33 RCW as now or law amended. hereafter (Italics ours.)
12 legislature, explicit language, in took cannabis
Thus the Drug (RCW 69.33.220) specifi- out of the and Narcotic Act dangerous drug cally (RCW included act it 60.40.060). provides: act, RCW 69.40.061 any any person possess It be described RCW shall unlawful for to from as amended any any drug required time, time to or which regulation or or or federal state law federal
Washington pharmacy regulation board to be used state prescription, upon prescrip- except the order or surgeon, veterinary physician, sur- tion of geon Provided, however, dentist or Washington: duly practice licensed to state provisions That the above shall by drug jobbers, apply wholesalers to registered pharmacists to manufacturers, veterinary surgeons. physicians, dentists rule at common law It was the well-defined repealed, regards operative its is, as a statute is where except existed, if it had never effect, considered as past pending closed, and all and transactions matters according litigation the state the law must be decided Sutherland, 1 decision. J. Statutes at time 1904); (166) (2d § Statutory Endlich, Construction 286 ed. G. Commentary § Interpretation of 478 on the Statutes A (1896); (1888). 44 121 Allen, 103, v. Wash. P. State 478, P. 1061 50, 106 P. Tacoma, see Wash. Ettor 1901, 1901 the enacted However, Laws (now 10.01.040) p. § Ses., Ex. ch. provides: penalty no in- committed and forfeiture No offense statutory provision previous the time when curred shall *4 repeal express repealed, or such be be whether repeal,
implied, a con- affected such unless shall be repealing expressly trary act, in the declared intention is recovery any prosecution offense, or for the and no any any pending time penalty at the statu- forfeiture, or repeal repealed, tory provision whether such be be shall repeal, implied, express affected such shall be but or respects, provision proceed in all as if such shall the same contrary repealed, unless intention not been had expressly any repealing act. in the Whenever declared penal repealed, criminal or or statute shall be amended penalties all in- or or offenses committed forfeitures punished curred or en- it in force shall be while was notwithstanding forced force, as if it such were contrary repeal, is ex- amendment or intention unless pressly amendatory repealing act, and declared in the every amendatory repealing such statute be so shall penal proceedings, to construed as save all criminal and proceedings pending forfeitures, 'and at the to recover contrary time of its unless a intention is enactment, expressly declared therein. being derogation statute,
This
law,
common
strictly
Clein,
must
be
Marble
construed.
v.
Wn.2d
(1959).
require
While the 1969 act words, does not contain the “This act apply pending language cases,” shall it contains from apply which the intent that it shall to such can cases reasonably inferred. (13) conveys says:
Section 7 it “. . . intent when provisions chapter of this shall not ever be form of cannabis.” construing a statute, the court seeks to find legislative give legislative pur intent, and to effect to pose. not Courts will ascribe to act, a vain possible, if should, statute be so that no construed superfluous, clause, sentence, or word void, shall be in significant. Kasper Edmonds, Wn.2d P.2d 346 question only prospective
If act in is to have preceding appli effect, “not words ever” the words “be unnecessary. legisla cable” are must We assume that the purpose, purpose added these words for ture applying is to would seem direct the courts to refrain from provisions involving pro those offenses cannabis. If the visions of the uniform narcotics act are “ever” *5 any applied
applied cannabis, then to not to arising pending or in the case, future. whether legislative is ines- conclusion this the intent The was capable applicable mari- cannabis or when the law to light prior juana and in its relation to law .viewed legis- presently facts of the of about cannabis which known presumably lature was aware. (Laws provision penalty 69.33.410 of 1963,
The of RCW 20), expressly § included cannabis 38, ch. which within the drugs, and which of narcotic was to definition charged, pro- the defendants were the offense with which pertinent case: vided, insofar guilty (1) offense the offender shall be For first impose a fine not and the court shall dollars a sentence of not less exceed ten thousand twenty years years more or than than five state imprisonment; penitentiary, or both such fine (Laws provision penalty 1963, of RCW 69.40.070 dangerous drugs) provided 23) (poisons § ch. 38, regard following first offenders: guilty (1) offender shall offense, For the first by exceeding punishable a fine not misdemeanor, county, by imprisonment in dollars or two hundred jail, exceeding months, or both such fine and six imprisonment; appear “act” for that the defendants
It would which (narcotic drugs), prosecuted 69.33.230 under RCW were possession marijuana, punishable also is, (Laws 2) (dangerous § 1967, 71, ch. 69.40.061 under RCW any drugs), makes unlawful which (Laws § ch. in RCW 69.40.060 described pertinent 1). provides, insofar to this That section dis- cussion: person sell, for a ... . . It shall be . unlawful diethylbarbi-
amytal, acid luminal, veronal, barbital, compounds any derivatives, or salts, turic, thereof, or any any amphetamine dextroamphetamine, or . . . lysergic dimethyltriptamine, acid, mescaline, . . . any peyote, psilocin, . . found federal . law Washington pharmacy regu- regulation state board or or potential depres- lation to have a of its abuse because system sant or stimulant effect on the central nervous hallucinogenic its effect; or is re- quired by any applicable federal or state or federal law regulation Washington pharmacy regula- state board prescription, except upon tion to be used prescription physician or oral order written of a *6 provides: The narcotics addiction statute, RCW any person any It shall be unlawful for to use . . . drug drug narcotic as defined in the uniform act, narcotic except RCW 69.33.220as prescribed amended, now hereafter .[1] physician and under the direction . . being Cannabis, defined as a narcotic in RCW (13), drug descrip- 69.33.220 is thus a which falls within the “any drug required by any tion which is federal or prescrip- state law ... to be used tion . . .” apply subject
Where two statutes to the mat same ter, we bear mind that the two statutes will be recon possible given ciled if so that can effect to each. It is the appellants contention of the that, under these statutes, the prosecutor given option charge is an unlawful either opposition theory, or a misdemeanor. In to this it is urged that reconciliation of these two statutes can be seq. (dangerous achieved if drugs) RCW 69.40 et is viewed embracing drugs, as not narcotic and that this result can by applying specific reached that, rule where words or phrases by general are used in statute, followed words or phrases, specific phrases govern words or the character general or kind of matter included in the words. State Sterling Co., Theatres Wn.2d 394P.2d argument dangerous drug
The act was not apply drugs persuasive, meant to to narcotic for dangerous any drugs, act does not list narcotic as that 1Although permits 69.32.080 the use prescrip of cannabis on apparently prescribed tion, not purpose it is medicinal in this country. parts world, however, In other of the thought it has been properties. Lindesmith, See have medicinal A. Law, Addict and the University pp. (1965), Indiana Press 223-226. those dictionaries2 and is defined various
term evidently be- considered are listed which depressant on the central effect of their stimulant cause hallucinogenic system effect. or their nervous legislature may did not intend that the assume We drugs. assumption does not apply But this to narcotic act to question cannabis, for act includes whether answer drug, though even in fact narcotic cannabis is it as such. As the act, in another define did, clear, one cited in note make references deep sleep makes an individual insensi- induces Describing pain. co-au- cannabis, the effects of tive publication appearing in an official of the anof article thors Prisons, have said: and the Bureau courts federal conjuncti- frequently symptoms physical include Acute phar- dryness injection, of the mouth and val vascular sensitivity light, ynx, throat, increased irritation changes pain stimuli, and such sound, touch, system pulse, increase blood nervous autonomic impaired Ataxia, abil- pressure, reflexes. and tendon *7 may voluntary movements, ity also muscular coordinate Appetite no is often stimulated. There is evi- occur. potency. increases sexual There marihuana dence that are lasting directly recognized yet ill effects attrib- no nor of marihuana has death been use the brief uted overdosage. country due to reported in this following changes marihuana use are varia- The mental upon expectations prior part depend and and ble setting and the drug experience user social at the of the meaning experience of the use; thus, time primarily socially acquired. Marihuana classi- largely Dictionary (1964): Int’l Third 2Merriam-Webster (as belladonna, groups) drug opium, of the or alcohol a1: “Narcotic: allays sensibility, produces pain, relieves doses moderate that produces poisonous stupor, coma, doses or sleep profound that but convulsions.” (5th ed.): drug Dictionary “Narcotic: ... 2. A Medical Gould’s complete state of Narcosis: The uncon- produces . . . narcosis an anesthetic.” produced sciousness Dictionary (24th ed.): “Narcotic: 1. Medical Illustrated Dorland’s agent produces producing 2. An insensi- Pertaining narcosis. bility stupor.” given. Dictionary: No definition Law Black’s given. Dictionary: No definition Law Bouvier’s hallucinogen though may aas even intoxication in- fied early depressant clude both stimulant and later A effects. fatigue, relaxation, decreased sense of and increased may self-confidence has been described. There be a dis- omnipotency perception tortion affect toward and a “insight” rarely shared the unintoxicated. The indi- garrulous, giggly, vidual nected. being, is often and talk is discon- period euphoria, Associated with or well- may space, time, there be distortions of color, and sensory perception dosage. with increased Depersonalization, perception physical body self, has been described with use. While this dis- might expected tortion self-injury, be to increase the likelihood we no know documentation confirm this expectation. suggestibility, judgment, Increased decreased change may by depression of affect be followed sleep. ciousness, may suspi- There also delusions, hallucinations, panic, aggressive and fear of death. Violent or persons may behavior is unusual. While occasional especially doses, sensitive to even small with the result psychotic-like produced, that a state is there is recent persons evidence that almost all are so affected with dosage. puzzling many sufficient A observance is that persons frightening episodes the marihuana have had who in their experience repeat towish it. summary, smoking the acute effects of marihuana commonly euphoric accompanied by include a state motor excitation and mental confusion. These reactions by period depression, are often followed of dreaminess, sleep. variety ap- The wide of individual reactions pears closely personality to be more related to differences (including expectations arousal) and emotional and the setting any specific property cultural of use than to Recognizing variability, itself. one user re- “every person has the marked that dream he deserves.” ours.) omitted.) (Italics (Footnotes D. Pet, M.D., and J. *8 Smoking Ball, Ph.D., Marihuana in States, United (No. 1968), by published Probation 8 Federal the Admin- Cooperation istrative Office of the United Courts in States Department of Prisons of with the Bureau of Justice, Washington, C.; A. Lindesmith, D. see also The Addict and University (1965), the Law, Indiana Press at 222-242. a is not narcotic but is cannabis
The consensus that stimulating it has a a and that hallucinogenic is mild rather Thus system.3 on the central nervous effect depressant drug included the dangerous a within drug it is type when, convincingly argued It may act. “or used the legislature phrase, ... to be used on pre- required to apply only meant that phrase it scription,” Nevertheless, defined therein. the fact previously The fact fits that definition. that the cannabis within is that as a “narcotic” not controlling defined it once the true nature of the drug concerned with are here we it comes within to determine whether the terms of in order itas is written.4 this statute appeared very this evaluation recent confirmation series 3A by Blakeslee, Writer, Press Science A. Associated enti articles written Knowledge Safeguarding Need a Wise Discus Teens —Parents
tled Drugs 13, 1969, and Abuse. In the March issue About sion says: page 5, Post-Intelligencer at the author Seattle Mary commonly pot, Jane, joint, grass, hay, known as It’s more reefer, names. stick or a dozen other States, marijuana generally the United is mild used in As may develop psychological produces Smokers need fantasies. forming quitting physically habit it doesn’t But is not for it. — symptoms. any physical withdrawal cause hallucination-producing narcotic, are other and neither It is not a drugs. Marijuana narcotics control for various reasons. is under But sleep stupor pain; usually produce and relieve true narcotics forming. addictive or habit can be hemp plant, Marijuana sativa. from the female cannabis comes flowering tops dried, are sometimes are mixed with The leaves cigarette. tobacco, rolled into minutes, usually hours, effects, last to five in a few three felt vary widely potency, depending may go 12. Reefers can on for but plant ingredient. of the active their content feeling great well-being, Typically, smokers have most They may having feeling high, a few alcoholic drinks. be- like had dreamy hilarious, or fall into a state. Their ideas come talkative rapidly, in disconnected fashion. sometimes flow deeper appreciation They fantasize, have a and sometimes Distance and sounds Time stretches out. of art music. works magnified. confused, may fearful. feel irritable and become Other smokers containing definition, Drug Act Narcotic 4The Uniform (Laws Legislature Washington 2d in 1951 adopted State *9 drug to the narcotic act and the its 1969 amendments legislature tacitly acknowledged act, the dangerous drug always belonged that cannabis has evidently cog- It act and not in the narcotic act. took generally nizance known of what is now about cannabis— addiction, is, that its can use does not lead to that its use symptoms, be discontinued such as are without withdrawal body opium suffered addicts and alcoholics. The human develop opium does not it, a tolerance to as it does to may emotionally depend- alcohol. Some individuals become upon may it, ent and it effects, indeed have no beneficial problems not, itself, but its use does create of addiction.5 Assuming legislature that not aware act, these facts it when enacted the 1967 it nevertheless used words which described cannabis so as to include it provisions legisla within the act. that Members of the presumed meaning ture are know of the words write into their enactments. Union Oil Co. State, Wn.2d 436, 98 drug required by P.2d 660 Cannabis is prescription, state law to be sold which depressant has a stimulant effect on the central and/or system hallucinogenic nervous and an effect. legislature
The fact did, in another act, define it drug” change give “narcotic did not its nature properties possess. which it does not proper application
It is to restrict the a so statute general language only things is held embrace of like kind preceding to those spe- enumerated in the language, cific requires but we know no rule which Ses., apparently 22), any independent investigation Ex. ch. without assumptions factual Drug basis contained therein. See Disease?, Reports Addiction: Crime Interim Final Joint Committee of the American Bar Association and the American Medical University Drugs, Association on (1961), Narcotic 12; Indiana Press at Pet, M.D., Ball, Ph.D., supra; D. Lindesmith, 1, supra. and J. A. n. These studies indicate that much more is known now about the effects marijuana and nature of narcotic than was known when the promulgated, Uniform Act was but there still much be learned. problem probably objection 5The of the addict which is the most society crimes, able to necessary, that he will commit if in order to drug. his obtain opera- from its as to exclude to further restrict it so court things though fact, kind in which, of the same tion those another kind. to be of have been declared contrary legislative It is doubtful whether declaration constitutional, if its can be sustained all the evidence deny equal under effect is to to a defendant treatment 535, 86 L. Ed. *10 Oklahoma, v. 316 See Skinner U.S. law. (1942); Stone, 886, 410 v. 67 Wn.2d 62 Ct. 1110 Seattle S. Dwyer, (1966); 941 P.2d 425, Clark v. 56 353 P.2d 583 Wn.2d (1960). and Fel- Note: Due Process also, Substantive See ony 2 Ga. Conflict, Pot The Current Treatment Smokers: of any it event, L. cannot restrict Rev. 247 seeking meaning language con- in the reasonable court tained in statute. legislative pass con- an enactment it intent to
If the depress trolling or all nonnarcotic which stimulate hallucinatory system produce central nervous the and/or cannabis, that intent is effects, its intent to control as it was expressly expressed enactment, in the statute.6 The 1969 removing dangerous drug including it as cannabis coverage drug act, conclu- the shows from presently sively that cannabis is aware that the properly it should be classed and that is not a narcotic drugs” “dangerous as have been defined in RCW with 69.40.061. maintain, there were the statute the defendants
As conflicting arrest, two the time of the statutes books, at (Laws 1963, 205, 4) ch. 9.91.030 which 6Of interest RCW § provides: open, maintain, Every person owner shall conduct or who morphine, any place opium, employee, alkaloid-cocaine or where any derivative, preparation mixture or alpha eucaine or beta any any them, described in RCW resorting any by persons thereto for the manner used in shall be place every person purpose; for visit or resort such who shall any drugs, using purpose manner of said shall be in guilty gross aof misdemeanor. expressly in this is not mentioned that cannabis It will observed legislative statute; statute intent to make this if it was therefore smoked, places applicable persons where who resort cannabis dangerous drug, defined cannabis was have considered that must in 69.40.060.
21 pertaining penalty canna- to the for unlawful bis.
This
48
295
court,
Delmore,
545,
Olsen
Wn.2d
v.
(1956), approved
adopted
324
P.2d
rule that an act
prescribes
punishments
act
different
the same
thereby
charge
purports
prosecutor
to authorize
person
one
awith
and another with a misdemeanor
for the
circumstances,
same act committed
under
same
equal protection
guaranteed
denies the
of the law
fourteenth amendment
to the United States Constitution
1,
12,
and article
section
constitution
this state.
distinguished
Boggs,
While this case was
v.
State
(1961);
Wn.2d
P.2d
Reid,
State v.
66 Wn.2d
(1965);
Canady,
243,
In Reid, State v. we held that equal protection 69.33.230and 69.33.410do not violate the clauses inasmuch as describe two offenses, ele- the proscribes of which ments are different. RCW 69.32.080 use narcotics; unlawful RCW 69.33.230and 69.33.410for- possession. bid unlawful Unlawful use is a misdemeanor, possession felony.7 while unlawful is a The fact that the proof necessary to establish commission of the misde- greater required prove meanor than was that to the penitentiary prescribed posses 7The minimum term at that time for year. Boggs, supra, There sion was 1 was no maximum. See v. State upheld imposed court where this a life sentence for a first offense. The possession found of the defendant was not identi opinion. fied in the 22 eradicate the dis- but it does not
may appear incongruous, the tinction between two offenses. Reid, in State v.
In discussing incongruity apparent said, we at 247: supra, page of the
The incongruity
purposes
when
disappears
are
Illegal possession
potentially
statutes
understood.
use,
than
society
illegal
more
to
because
much
others,
to
may
whereas
possessor
dispense
course,
Of
recog
himself.
we
affecting mainly
the user
a
If
of narcotics is also
possessor.
nize that often
user
crime,
to
each
then
separate
is able
prove
the prosecutor
violations of either or both
could
with
charge
person
he
statutes.[8]
exercise discretion in
may
prosecutor
held that
We
not,
an offender or
to
that
deciding whether
prosecute
under one statute or
proceed
decide also whether
may
he
not the
to be
same.
another,
proven
the facts
provided
samples
come before this court are fair
8If the cases which
adopted
appear
prosecutors
prosecuted,
that
it would
have
cases
legislature
“possession”
was intended
that
statute
view
obtaining
drugs.
prosecutor’s
task in
convictions
sellers
ease the
(two cigarettes
(1968)
Weiss,
372,
It that, that this court was if proceed authorization to for either misdemeanor or a felony was contained in statute, a different there would be equal protection problem. no However, we then cited State supra, noting distinguished Reid, v. that it Olsen v. Del supra, page more, said, at 891: The basis for the decision that the of the elements legislative two differed, crimes and there was a standard prosecution determining
for the to use which offenders charged should be under which statute. logical drawing There no basis for a distinction be- charge tween an authorization contained in statute, one felony, for either a misdemeanor or a and the authori- same prosecution zation contained in statutes, different if the under either statute for the identical act. have fact We recognized that there is no such distinction two law in subsequent cases to Olsen. Belnap,
In Walder Wn.2d
If, as contends, both statutes are contemporaneously, and, tive the law state, permitting prosecuting option pro- authorities the (1) (2) felony, secute for misdemeanor or there *13 24
might
deprivation
petitioner’s
a
of
constitu-
have been
right
equal protection
In re Olsen v.
of the law.
tional
Delmore,
to
(2d)
(2d)
545,
48
295
324.
Wn.
P.
(1960),
470,
Collins,
ishment every state, statute citizen or inhabitant of the protection equal punishments laws is void as a denial of the which prescribes de- different or different grees punishment under for the same acts committed by persons in like situation. the same circumstances (Footnotes omitted.) (1909), 737, 748, P. 374 Mallon, In Ida. 102 re
court said: any greater subject burdens one That no shall be imposed upon charges under all others as are than such protection that such shall circumstances, means
like
everywhere
every person
refer-
without
extended
society,
position
life;
or station in
whether
ence to his
country,
may
color
or the
whatever
lives in town
he
lives,
he
or whether humble or
house which
be the
imposing in structure.
Kanistanaux, also,
State v.
9See
It is that manifest RCW 69.33.410and prior prescribed stood the amendments, different punishments possession for the same act of of cannabis, as (narcotic drugs) that offense was defined RCW 69.33.230 (dangerous drugs). and RCW 69.40.061 There is no basis in distinguishing persons the statutes for between who can be charged possession with unlawful of under one act cannabis charged and can those who be the under other. Thus there question provisions gave existed a serious whether these prosecutor charge to the the discretion to for either aor misdemeanor for the same act committed under the consequently circumstances, the same denied to one charged equal pro- of with a violation RCW 69.40.061the tection of the laws. regarding legislation
In view of our conclusion the 1969 question. we need not decide that preexisting applicable
When the of state conflict in the just generally discussed, laws, have which we the now concerning known facts the nature cannabis are taken appears very probable legislature account, into that the proposed chapter conflict remove that when it enacted 1st Ex. When 1969, Laws Ses. provisions act should “not
said of the narcotic that an intent to cannabis,” ever it manifested deciding necessity of the the courts relieve apparently applicable, statutes, should control two prosecution both disposition offenses. At cannabis provisions, time it manifested an intent same govern disposi- preexisting law, rather than the should cases, and that cannabis offenders tion of such should drugs way that users treated same charge avoiding treated, thus that such kind were same equal protection of the laws. offenders denied Ses., ch. hold, therefore, We that Laws of 1st Ex. taking marijuana §§ of the Uniform 7, 9, 10, 11, out provi- Drug expresses Act, the intention its Narcotic charge pending apply of unlaw- actions. The sions shall ful cannot stand. judgment action is is reversed and the dismissed. JJ., concur. Finley J.,C. Weaver,
Hunter,
*15
JJ.,
and
concur in the result.
McGovern,
Hamilton
result)
(concurring
were
J.
Hale,
—Defendants
marijuana.
unlawfully possessing
jury
convicted
a
of
speci-
amplification
information,
and without
without
charged
fying
type
simply
Nar-
of
“Possession
kind,
the
the term
understood, however,
cotics.” Defendants
they
cannabis, for
did
information meant
“narcotics” in the
they
vague-
particulars
claim
of
nor did
not demand a bill
they challenged
a
the
or demanded
Had
information
ness.
particulars,
likelihood,
have
court, would
the
all
bill of
(RCW
vagueness
10.37.052)
plea
re-
and
sustained their
of
type
quired
specify
nature, kind and
of
the state to
the
possession.
alleged to have been in the accuseds’
narcotics
(1965);
Royse,
P.2d
552, 403
838
Seattle
v.
66 Wn.2d
State
(1935);
299,
One can statement mari- court’s about juana legislature that “The fact did, act, another drug’ change define it as ‘narcotic its did not nature and give properties possess.” it it does not But that state- ought imply ment not taken to that the could constitutionally classify not as a define it or narcotic. Accordingly, filed, when the sa- information was cannabis my judgment properly tiva in defined as a statute drug, and the court cannot declare matter properties that, law because of its medical and chemical physiological marijuana effects, in- should have been among dangerous drugs among cluded legislature may narcotics. However, the have defined marijuana dangerous drug, classified narcotic, or neither — powers —it acted in exercise its under the constitution legislate drugs, upon pharmaceuticals medicines, biologicals and to define crimes.
Although marijuana might said fall within the generic dangerous drugs, I do classification not see gave prosecuting attorney discretionary where this powers charge selection enabled that officer to *16 felony accused as a under the Uniform Nar- Drug dangerous cotic Act or as misdemeanor under the drug (RCW 69.40). Drug act The Uniform Narcotic Act specifically drug; prose- defines cannabis aas narcotic the cuting attorney charging possession marijuana in had no designate drug. it as a choice but narcotic That mari- 28
juana may medically dangerous aas also be described drug, my prosecuting opinion, did in the not, authorize attorney possessing it at his discretion accuse one dangerous either as narcotic or as which drug is a which misdemeanor. powers denounced
The unconstitutional
of selection
(1956), do
Delmore,
Olsen v.
295
324
Wn.2d
P.2d
present
my judgment
there
not exist in
case
because
possessing
possessing
is a difference
narcotics and
between
dangerous drugs.
have different elements.
The two crimes
dangerous
unlawfully possessed a
Proof
accused
that the
drug,
drug
possessed narcotic
not establish that he
would
the ele
vice
If
is a difference in
versa.
there
require a
similar crimes or if either will
ments
two
proof, they
prosecut
not identical and the
difference in
attorney,
ing
depending upon
available, has a
evidence
charge he
to decide
will
constitutional discretion
whichever
(1966);
bring.
Canady,
886,
Regardless of how no as to its intentions I left doubt think legislative purpose defining narcotic. It made a understanding person unmistakably of common clear to a *17 drug. explicitly when it a narcotic named cannabis as unlawfully charged pos- The information defendants with sessing drug, meaning marijuana. a the Uni- narcotic Under Drug specified marijuana form named Narcotic and Act, was dangerous drug as a narcotic and was not included 69.33.220(13,14), drug dangerous drug. as act a In RCW Drug (before the Uniform 1969 amend- Narcotic Act ment), designated through it was a both its scientific and names, common as follows: (13) parts plant “Cannabis” includes all Canna- growing thereof;
bis Sativa L., not; whether or the seeds any part plant; resin from extracted of such and every compound, manufacture, derivative, mixture, salt, preparation plant, or resin; or seeds, such its but shall plant, pro- not include the mature stalks of such fiber duced from stalks, such oil cake made or from the seeds plant, any compound, of such manufacture, salt, preparation derivative, mixture or of such mature stalks (except therefrom), the resin extracted fiber, oil, cake, or plant incapable or the sterilized seed such germination. (14) drugs” opium, “Narcotic leaves, means coca can- every chemically nabis and other substance nor neither physically distinguishable . . . from them marijuana danger- Nowhere was or cannabis named as drug dangerous drug ous under the act. RCW attorney prosecuting 69.40.061.1do not see how had an option charge felony either misdemeanor marijuana offense, i.e., identical as a possession marijuana misdemeanor. information, as a An charg- Drug therefore, laid under the Uniform Act Narcotic ing charged possession marijuana felony, one with and sensibly could not be claimed to be a for, misdemeanor points general out, court there where are both specific relating subject sections to the same or similar specific designation controlling. matter, the definition or Drug To reach a conclusion that the Uniform Narcotic dangerous drug duplicitous Act and the act were with re- spect marijuana, assumptions the court makes certain which I find untenable. Its observations as to the medical properties psychological emotional chemical scientifically question- marijuana
effects of I think sphere. beyond judiciary’s able but constitutional marijuana regarded as narcotic Whether was falling pecu- or a neither a matter liarly legislative sphere within the of action 'and outside assuming marijuana Thus, that of the courts. cannot lawfully narcotic, as a defined *18 overstepped my judgment, court, in its constitutional limi- tations. judiciary kind,
In should limit itself to a case of legislative ascertaining applying definition and it to the judgments appropriately more are case at hand. Scientific to scientists, and definitions in the criminal law the left legislative do When these definitions not meet the branch. latter-day subsequent legislatures and scien- time, test Contrarily, change judiciary may them. when the tists pronouncements of one makes formal as the existence danger thing always another, that or there is may wrong and time these turn out to be course of may today amount to no more declared fact than which fancy tomorrow. for
If there exists in fact reasonable basis whatever may legislature’s defini- remote that be—the it—however controlling. remote Here, however, tion is basis appropriate there existed sub- and because but immediate legisla- marijuana stantial, in fact to treat scientific basis tively Medical and definitions a narcotic. classifications as many likely overlap quite frequently coalesce. It and drugs generically as described narcotics are many danger- good drugs, are called too, and that of what drugs variety physiological produce a of narcoses. Their ous degree depend psychological effects, course, some and strength drugs’ and concentrations and the individ- on the taking persons and them, these characteristics of the ual may description medical and also condition their variables drugs example, one classification known as For definition. impulses, hypnotics or cortical centers, the afferent inhibits causing insensibility may pain produce brain, and complete partial contexts, or these unconsciousness. drugs logically purposes of law. could be called narcotics
Hypnotics analgesics, sedatives, include anesthetics logi- sleep, can intoxicants. used to When induce cally soporifics. narcotics, or described or somnifacients Among hypnotics bromide, are milder forms of sodium potassium aspirin; bromide, ammonium bromide and stronger hydrate, trional, veronal, include chloral ones hypnotics chloralamide. Other include such derivatives of (ver- (phenobarbital), acid as luminal barbituric barbital onal), amytal, many dial, allonal, and others—all which hypnotics. among hyp- are both narcotics Also included drugs classically styled notic the more are narcotics such as morphia Although opium analge- and its derivatives. hypnotics, they sics generally anesthetics defined are not Cy- considered narcotics. See Taber’s Dictionary clopedic (9th 1963). ed. Medical Thus it is seen that medical definitions and classifications concerning sleep produce narcotics include the stupor, depress system the central nervous to relieve pain sleep, which, doses, induce but in excessive will *19 produce stupor, unconsciousness, coma and death. These necessarily classifications would include some generic dangerous drugs meet the classification of as well. explicit examples opium, More narcotics, are however, morphine, papaverine, syn- codeine, heroin and numerous drugs, legislature thetic if and chose to include mari- was, juana among my legitimate legisla- view, them in tive action. description
Even the court’s of multifarious effects of marijuana from D. Pet, M.D., cited and J. Ball, Ph.D., Mari- Smoking States, huana in United 32 Federal Probation 8 (No. 1968), including marijuana I think would warrant among drugs. Accordingly, the narcotic it was well within legislature’s province aas matter of fact as well as of classify marijuana drug law to as a either narcotic or a dangerous drug or as neither. legislature powers defining
When the acted its in within drugs, classifying pharmaceuticals and and medicines [Narcotic dangerous Drug both and the the Uniform Act inescapa- upon an act, there then devolved the courts duty and definitions and classifications ble sustain these makes that as the court enforce them. Such observations marijuana addiction; that use of does not lead to its use symptoms; that discontinued can be without withdrawal body develop it; a tolerance the human does upon emotionally dependent it— some individuals become depend- does not the court differentiate between emotional marijuana ency no addiction; in itself creates and or that problems ques- open to doubt addiction, not legislative my opinion, not, tion do affect the defini- but long legislature as a rational basis for tions so had concluding otherwise. may legislature
And there is evidence that the abundant assump- right and that court’s have been the first time may marijuana, in error. said of tions are Whatever physiological, its common sense indicates that emotional upon system psychological undoubt- effects human edly upon length depend it is used, of time it is how strength particular species used, its concentra- used, the differing taken, amount intervals and the tion, the legislature was, individuals to it. The reactions different defining marijuana powers therefore, within its well redefining dangerous it as narcotic and later in way drug, appropriately either for it could classified purposes of law. punish- and not the courts decides what may particular that, It well be
ment shall fit which crime. marijuana instead of as a when it described drug, aiming heroin, LSD, at the evil it was morphine, opium, narcotics, and other hard cocaine majority legislators that criminals held to the belief marijuana pushed the in all sale who sold likelihood *20 drugs, Contrarily, changing too. the definition of other marijuana dangerous drug thereby
from narcotic to possessing reducing penalty first mar- for the offense legislature may majority ijuana, con- well have or no sale that there is little connection between the cluded possession marijuana and the sale opium, morphine long heroin, or cocaine. Time is and ideas change. legislature may obliged A to increase future feel penalties ever-changing to meet needs and conditions. predeces- power It should have the same freedom and as its change, power sors. Whatever the for actual basis legislature make it rests in the and not the courts. agree majority, employ-
I do however, with the that, ing imprecise phraseology proviso “That narcotic provisions shall not include cannabis and the of this chapter shall not ever be form canna- bis,” § 1969, Ses., Laws of Ex. 256, 1st ch. p. amending must have intended penalty consequent make the amendment and reduced possession marijuana retroactive. This seems to be the most sensible construction available. majority
I would, therefore, as the done, has reverse with brought directions that the defendants be to a new trial illegal charge possession marijuana under the dangerous drug (RCW 69.40) act as amended.
Neill, J., concurs J. Hale, with
September rehearing 16, 1970. Petition for denied.