State v. Zornes
| Decision Date | 14 May 1970 |
| Docket Number | Nos. 40222,40223,s. 40222 |
| Citation | 475 P.2d 109,78 Wn.2d 9 |
| Parties | The STATE of Washington, Respondent, v. Robert A. ZORNES and Jenice Zornes, Appellants. |
| Court | Washington Supreme Court |
Peterson, Taylor & Day, Robert S. Day, Pasco, for appellants.
C. J. Rabideau, Pros. Atty., Pasco, for respondent.
The defendants, husband and wife, who were both 22 years of age at the time of the trial of this action, were found guilty of a violation of RCW 69.33.410 (the Uniform Narcotic Drug Act). The evidence upon which they were convicted showed that about a half dozen officers raided their home on the night of August 11, 1967. The defendants were lying on the lawn at the time, watching for meteors. A thorough search of the premises uncovered some marijuana cigarette ends in garbage cans and a few bits of marijuana in a match box.
Insofar as the record discloses, neither of the defendants had ever before been convicted of a crime. The defendant Robert Zornes received a minimum sentence of 5 years and a maximum of 20 years in the state penitentiary, while the sentencing of the defendant Jenice Zornes was deferred for 6 years. She was ordered to spend 1 year in the county jail.
While this case was pending before this court, the legislature enacted Laws of 1969, 1st Ex.Sess., ch. 256, which provides (in those portions pertinent to the present case) as follows Sec. 7. Section 69.33.220, chapter 27, Laws of 1959 and RCW 69.33.220 are each amended to read as follows:
The following words and phrases, as used in this chapter, shall have the following meanings, unless the context otherwise requires:
(13) 'Narcotic drugs' mean coca leaves, * * * any other drugs to which the federal laws relating to narcotic drugs may now apply; and any drug found by the board of pharmacy, * * * to have addiction-forming or addiction-sustaining liability similar to morphine or cocaine, * * * PROVIDED, That narcotic drugs shall not include cannabis and the provisions of this chapter shall not ever be applicable to any form of cannabis.
Sec. 9. Section 1, chapter 6, Laws of 1939 as last amended by section 1, chapter 71, Laws of 1967 and RCW 69.40.060 are each amended to read as follows:
* * * (2) It shall be unlawful for a person, firm or corporation to sell, give away, barter, exchange or distribute any part of the plant Cannabis Sativa L., commonly known as marihuana, * * *
Sec. 10. Section 2, chapter 6, Laws of 1939 section 23, chapter 38, Laws of 1963, and RCW 69.40.070 are each amended to read as follows:
Whoever violates any provision of chapter 69.40 RCW, and said violation solely involves the drug cannabis, commonly known as marihuana, shall, upon conviction, be fined and imprisoned as herein provided:
(1) For the first offense, the offender shall be guilty of a misdemeanor, and punishable by a fine not exceeding five hundred dollars or by imprisonment in the county jail, not exceeding six months, or by both such fine and imprisonment;
Sec. 11. There is added to chapter 69.40 RCW a new section to read as follows:
Cannabis as Now or hereafter defined by the Washington state board of pharmacy shall be a dangerous drug as defined herein and accordingly shall be subject to the provisions or chapter 69.40 RCW and shall not be considered a narcotic drug and accordingly not subject to the provisions of chapter 69.33 RCW as now law or hereafter amended.
(Italics ours.)
Thus the legislature, in explicit language, took cannabis out of the Narcotic Drug Act (RCW 69.33.220) and specifically included it in the Dangerous Drug Act (RCW 69.40.060). In that act, RCW 69.40.061 provides:
It shall be unlawful for any person to possess any of the drugs described in RCW 69.40.060, as amended from time to time, or any other drug which is required by any applicable federal or state law or federal regulation or Washington state pharmacy board regulation to be used only on prescription, except upon the order or prescription of a physician, surgeon, dentist or veterinary surgeon duly licensed to practice in the state of Washington: Provided, however, That the above provisions shall not apply to the possession by drug jobbers, drug wholesalers and drug manufacturers, to registered pharmacists or to physicians, dentists or veterinary surgeons.
It was the well-defined rule at common law that where a statute is repealed, it is, as regards its operative effect, considered as if it had never existed, except as to matters and transactions past and closed, and all pending litigation must be decided according to the state of the law at the time of the decision. 1 J. Sutherland, Statutes and Statutory Construction § 286(166) (2d ed. 1904); G. Endlich, A Commentary on the Interpretation of Statutes § 478 (1888). State v. Allen, 14 Wash. 103, 44 P. 121 (1896); And see Ettor v. Tacoma, 57 Wash. 50, 106 P. 478, 107 P. 1061 (1910).
However, in 1901 the legislature enacted Laws of 1901, Ex.Ses., ch. 6, § 1, p. 13 (now RCW 10.01.040) which provides:
No offense committed and no penalty or forfeiture incurred previous to the time when any statutory provision shall be repealed, whether such repeal be express or implied, shall be affected by such repeal, unless a contrary intention is expressly declared in the repealing act, and no prosecution for any offense, or for the recovery of any penalty or forfeiture, pending at the time any statutory provision shall be repealed, whether such repeal be express or implied, shall be affected by such repeal, but the same shall proceed in all respects, as if such provision had not been repealed, unless a contrary intention is expressly declared in the repealing act. Whenever any criminal or penal statute shall be amended or repealed, all offenses committed or penalties or forfeitures incurred while it was in force shall be punished or enforced as if it were in force, notwithstanding such amendment or repeal, unless a contrary intention is expressly declared in the amendatory or repealing act, and every such amendatory or repealing statute shall be so construed as to save all criminal and penal proceedings, and proceedings to recover forfeitures, pending at the time of its enactment, unless a contrary intention is expressly declared therein.
This statute, being in derogation of the common law, must be strictly construed. Marble v. Clein, 55 Wash.2d 315, 347 P.2d 830 (1959). Since the statute does not require that an intent to affect pending litigation be stated in express terms, but merely provides that the intent must be 'expressed' in the statute, we construe the statute as authorizing the expression of such an intent in words that fairly convey that intention.
While the 1969 act does not contain the words, 'This act shall apply to pending cases,' it contains language from which the intent that it shall apply to such cases can be reasonably inferred.
Section 7(13) conveys that intent when it says: '* * * the provisions of this chapter shall not ever be applicable to any form of cannabis.'
In construing a statute, the court seeks to find the legislative intent, and to give effect to the legislative purpose. Courts will not ascribe to the legislature a vain act, and a statute should, if possible, be so construed that no cause, sentence, or word shall be superfluous, void, or insignificant. Kasper v. Edmonds, 69 Wash.2d 799, 420 P.2d 346 (1966).
If the act in question is to have only prospective effect, the words 'not ever' preceding the words 'be applicable' are unnecessary. We must assume that the legislature added these words for a purpose, and that purpose it would seem is to direct the courts to refrain from applying those provisions to offenses involving cannabis. If the provisions of the uniform narcotics act are not 'ever' to be applied to cannabis, then they are not to be applied in any case, whether pending or arising in the future.
The conclusion that this was the legislative intent is inescapable when the 1969 law applicable to cannabis or marijuana is viewed in its relation to prior law and in the light of presently known facts about cannabis of which the legislature was presumably aware.
The penalty provision of RCW 69.33.410 (Laws of 1963, ch. 38, § 20), which expressly included cannabis within the definition of narcotic drugs, and which was applicable to the offense with which the defendants were charged, provided, insofar as pertinent to this case:
(1) For the first offense the offender shall be guilty of a felony and the court shall impose a fine of not to exceed ten thousand dollars and a sentence of not less than five years or more than twenty years in the state penitentiary, or both such fine and imprisonment;
The penalty provision of RCW 60.40.070 (Laws of 1963, ch. 38, § 23) (poisons and dangerous drugs) provided the following in regard to first offenders:
(1) For the first offense, the offender shall be guilty of a misdemeanor, and punishable by a fine not exceeding five hundred dollars or by imprisonment in the county jail, not exceeding six months, or by both such fine and imprisonment;
It would appear that the 'act' for which the defendants were prosecuted under RCW 69.33.230 (narcotic drugs), that is, the possession of marijuana, was also punishable under RCW 69.40.061 (Laws of 1967, ch. 71, § 2) (dangerous drugs), which makes unlawful the possession of any of the drugs described in RCW 69.40.060 (Laws of 1967, ch. 71, § 1). That section provides, insofar as pertinent to this discussion:
It shall be unlawful for a person * * * to sell, * * * amytal, luminal, veronal, barbital, acid diethylbarbituric, or any salts, derivatives, or compounds thereof, * * * any amphetamine or any dextroamphetamine, * * * dimethyltriptamine, lysergic acid, mescaline, peyote, psilocin, * * * any drug found by federal law or regulation or Washington state pharmacy board regulation to have a potential for abuse...
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