Frazier v. Terrill

• Decision Date: 09 December 1946
• Docket Number: 4904
• Citation: 175 P.2d 438,65 Ariz. 131
• Parties: FRAZIER, Justice of the Peace, et al. v. TERRILL
• Court: Arizona Supreme Court

175 P.2d 438

65 Ariz. 131

FRAZIER, Justice of the Peace, et al. v. TERRILL

No. 4904

Supreme Court of Arizona

December 9, 1946

Appeal from Superior Court, Cochise County; Frank E. Thomas, Judge.

Proceeding in prohibition by A. J. Terrill against L. T. Frazier Justice of the Peace, Precinct Number One, Cochise County State of Arizona, and another, to prevent further proceedings in a criminal case against plaintiff being tried in justice court. From a judgment granting a peremptory writ of prohibition, defendants appeal.

Judgment reversed with direction to quash the peremptory writ of prohibition, defendants appeal.

John L Sullivan, Atty. Gen., John W. Rood, Chief Asst. Atty. Gen., and William P. Mahoney, Jr., Asst. Atty. Gen., for appellants.

W. E. Polley, of Bisbee, for appellee.

La Prade, Judge. Stanford, C. J., and Morgan J., concur.

OPINION

La Prade, Judge.

The appeal in this case is taken from an order for a peremptory writ of prohibition granted February 15, 1946 by the Superior Court of Cochise County, directing the Justice Court, Precinct Number One, Cochise County, and L. T. Frazier as judge thereof, to refrain from any further proceedings in a criminal case being tried before him in which A. J. Terrill, appellee, was defendant and the state plaintiff.

Appellee, A. J. Terrill, was charged with violating Section 57-126, A.C.A. 1939, as amended by Chapter 52, Laws 1945. The specific charge was for unlawfully having in possession about sixty pounds of deer meat. Defendant moved to quash the complaint upon the ground that the justice court did not have jurisdiction of the alleged offense. The motion being denied, defendant sought and secured the peremptory writ of prohibition. The judge of the superior court found that the justice court did not have jurisdiction to try the offense punishable under the provisions of Section 57-126, A.C.A. 1939, as amended by Chapter 52, Laws 1945, for the reason that the penalty exceeds that which a justice of the peace is authorized to impose. The applicable portion of said section reads as follows:

"Any person who takes, possesses, transports, buys, sells, or offers for sale, any deer, wapiti (elk), antelope, beaver, bison (buffalo), mountain sheep, or peccary or javelina, or wild turkey, or any part of any such animal, or bird, in violation of this act, * * * shall be guilty of a misdemeanor, and shall be punished by a fine of not less than one hundred dollars nor more than three hundred dollars, or by imprisonment in the county jail for not less than three months nor more than six months, or by both such fine and imprisonment; and in addition thereto, is liable to an additional penalty of fifty dollars for each animal or part thereof, or fish, or bird, taken, destroyed, possessed, transported, bought, sold, or offered for sale in violation of this Act." (Emphasis supplied)

By section 9 of Article 6 of the State Constitution "* * * The powers, duties, and jurisdiction of justices of the peace, shall be provided by law: * * *." The statutory provision conferring jurisdiction on justice courts reads in part as follows:

"Jurisdiction of justices' courts. -- The justices' courts have jurisdiction of the following offenses committed within their respective precincts in which such courts are established, subject to the right to change of venue as provided by law:

"1. * * *

"2. * * *

"3. Breaches of the peace, riots, routs, affrays, committing a wilful injury to property, and all misdemeanors punishable by fine not exceeding three hundred dollars ($ 300), or imprisonment not exceeding six (6) months, or by both such fine and imprisonment." Section 44-3201, A.C.A. 1939.

The sole question before this court is whether as a matter of law the justice court has jurisdiction of the offense charged. Under the ruling of Brookner v. State, 14 Ariz. 546, 132 P. 1136, the following rule as to the jurisdiction of the justice of the peace is announced:

"* * * The test of the jurisdiction of the justice of the peace in this case, as in all others, is whether the maximum penalty that may be imposed upon convictions is greater than he is authorized to inflict. If the penalty may be greater than the maximum that he can impose, then he is without jurisdiction. * * *."

By the provisions of Section 44-3201, supra, the maximum fine that a justice of the peace may assess is $ 300. By the provisions of the Game Code referred to (Section 57-126, supra), one found guilty of violating this section may be punished by a fine of not more than $ 300 "And in addition thereto, is liable to an additional penalty of fifty dollars for each animal or part thereof, * * * possessed, * * * in violation of this Act." It is the position of appellants that the additional penalties provided in said section are civil and remedial penalties inuring to the benefit of the state and may not be added to the criminal punishment authorized so as to remove a violation of the section from the jurisdiction of the justice court. To reach this conclusion it is suggested that the legislature in enacting Section 57-126, supra, intended to make this section serve the function that was formerly authorized by separate actions, one criminal and the other civil. Appellants call our attention to the fact that by Section 19 of Chapter 82, Laws 1912, Special Session, it was provided that the state game warden might bring a civil action in the name of the state to recover damages against any person unlawfully having in possession certain named game animals. This remedy was no bar to any criminal prosecution for taking or having in possession the same game. This section of the 1912 act was carried forward as paragraph 668 of the 1913 Penal Code and as Section 1542 of the 1928 Code. The unlawful possession of game was a criminal offense under the 1913 Code and also under the 1928 Code (Section 1553). By Chapter 84, Laws 1929, the legislature enacted a new and revised code relating to game and fish preservation, and created the Arizona Game and Fish Commission. By Section 46 of this act, the previous provisions specifically providing for the recovery of damages in a civil action were omitted. This section provided that "unless a different or other penalty or punishment is herein specifically prescribed, a person who violates any provision of this act, * * * is guilty of a misdemeanor, and in addition thereto, is liable to an additional penalty of twenty-five dollars for each animal, bird, or fish, or part thereof, * * * taken, possessed, or transported, in violation of this act." This section set up a specific penalty for unlawfully possessing deer meat. The offense was designated as a felony and was punishable by a fine of not less than $ 200 nor more than $ 1,000, or by imprisonment in the county jail for not less than six months nor more than one year or by both, and in addition thereto, the offender was liable to an additional penalty of $ 50 for each animal or part thereof possessed in violation of the act. In view of the maximum penalty of $ 1,000, original jurisdiction of the criminal offense was exclusively vested in the superior court. By Section 7 of Chapter 97, Laws 1931, said section 46 was amended by reducing the fine to a minimum of $ 100 and a maximum of $ 300 as it now appears in Section 57-126, supra. The pecuniary penalty of $ 50 was not altered in any way. Having presented the foregoing history of the sections under consideration, appellants say:

"It is evident that in drafting Chapter 84, Laws of 1929, the legislature intended to combine both the penal and the remedial provisions of the prior laws into one statute. Such is a reasonable construction of Section 57-126, supra, as amended, in view of the legislative history on the subject of fines and penalties for violations of the Arizona fish and game laws."

Appellants also suggest that the statute is ambiguous and that as an aid to its construction we should consider its antecedents, citing Section 5201, Sutherland's Statutory Construction, and Home Owners' Loan Corporation v. Phoenix, 51 Ariz. 455, 77

P.2d 818. The rule as stated by Mr. Sutherland is that

"The intent of the legislature when a statute is found to be ambiguous may be gathered from statutes relating to the same subject matter -- statutes in pari materia. On the presumption that whenever the legislature enacts a provision it has in mind the previous statutes relating to the same subject matter, it is held that in the absence of any express repeal or amendment therein, the new provision was enacted in accord with the legislative policy embodied in those prior statutes, and they all should be construed together. * * *"

The section under consideration is not free from ambiguity as we shall endeavor to point out. The statute provides that he who transgresses the statute is guilty of a criminal offense, a misdemeanor, and shall be punished by a fine of not less than $ 100 nor more than $ 300 and "In addition thereto, is liable to an additional penalty of fifty dollars for each animal or part thereof, * * * possessed, * * * in violation of this act." Clearly the penal punishment is by a fine with definite limitations. The provision that the defendant "is liable to an additional penalty" would at first blush seem to indicate that the legislature was using the words "fine" and "penalty" as synonyms. In the reported cases it is possible to find many decisions wherein the words have been considered synonymously. See Vol 31, Words and Phrases, Perm.Ed., page 602. Likewise there are many reported cases wherein a fine is distinguished from a penalty. Vol. 31, Words and Phrases, Perm.Ed., page 599. The statute is very definite and specific insofar as it says that the fine shall not be more than $...