Lawton v. Hand

• Decision Date: 08 November 1958
• Docket Number: No. 41310,41310
• Citation: Lawton v. Hand, 183 Kan. 694, 331 P.2d 886 (Kan. 1958)
• Parties: Virgil Gail LAWTON, Petitioner, v. Tracy A. HAND, Warden, Kansas State Penitentiary, Lansing, Kansas, Respondent.
• Court: Kansas Supreme Court

Page 886

331 P.2d 886

183 Kan. 694

Virgil Gail LAWTON, Petitioner, v. Tracy A. HAND, Warden, Kansas State Penitentiary, Lansing Kansas, Respondent.

No. 41310.

Supreme Court of Kansas.

Nov. 8, 1958.

Syllabus by the Court.

1. Where a later statute covers the entire field of an earlier act of the legislature, and is repugnant thereto, the earlier statute is repealed by implication by the enactment of the later statute.

2. Section 16, of article 2, of the state constitution has no application to the repeal of a statute by implication.

3. Where petitioner in habeas corpus is held in illegal confinement in the penitentiary under a void sentence, but a valid information is on file against petitioner in the district court to which a plea of guilty has been entered, this court will release petitioner from his confinement but direct he may be taken before the district court to await a valid sentence upon his plea of guilty to the information.

Samuel C. Jackson, Topeka, for petitioner.

John A. Emerson, Asst. Atty. Gen., John Anderson, Jr., Atty. Gen., on the brief, for respondent.

Glenn Tom Crossan, Independence, Glen Tongier, Coffeyville, on the brief, for Tom Crossan, County Atty. of Montgomery county, amicus curiae.

JACKSON, Justice.

Virgil Gail Lawton, who is confined in the state penitentiary at Lansing, brings this original petition for a writ of habeas corpus, and alleges that he was convicted under the provisions of G.S.1949, 21-2311 of the crime of possession of marijuana and sentenced to serve a term of from one to five years in the penitentiary for the first offense; that he was charged with having marijuana in his possession on or about December 17, 1957; that the trial and conviction of petitioner took place in the district court of Montgomery county on February 1, 1958. Petitioner further alleges that the legislature during the session of 1957 enacted the uniform narcotic drug act (Laws 1957, Chap. 338), which became effective on July 1, 1957, and now appears as G.S.1957 Supp. 65-2501 et seq. Petitioner further claims that the uniform narcotic drug act covers the whole field of the regulation of the narcotic drugs, the illegal use thereof, and is inconsistent with the earlier act, G.S.1949, 21-2311; that the later act must be held to have repealed the earlier by implication. He particularly points out that under the uniform act the first offense for illegal possession of drugs is made only a misdemeanor, instead of a felony as provided in G.S.1949, 21-2311.

Petitioner claims that his conviction and sentence is void since the statute under which he was convicted had been repealed and no longer exists.

The respondent admits all of the above facts, but denies petitioner's conclusions therefrom and particularly that Section 21-2311 was repealed by implication by the uniform narcotic drug act and maintains petitioner's conviction is entirely valid.

Respondent's principal argument to refute the contentions of the petitioner is that the old act did not cover physicians, druggists and others who were authorized to possess narcotic drugs and that the new uniform narcotic drug act only purports to regulate those persons who are authorized to use and possess narcotic drugs.

In the first place, G.S. 1949, 21-2311 did mention pharmacists, physicians, dentists and veterinary surgeons. It may be supposed that if these professional people had wrongfully used narcotic drugs, they might have been subject to prosecution under the old act. Moreover, upon a careful study, the assertion that the new act only covers such people proves to be incorrect. In G.S. 1957 Supp., 65-2501, we find definitions of certain words used in the act. Paragraph numbered (1) reads:

"Person' includes any corporation, association, copartnership, or one or more individuals.'

Paragraph numbered (13) reads as follows:

"Cannabis' includes all parts of the plant Cannabis sativa L., whether growing or not; the seeds thereof; the resin extracted from any part of such plant; and every compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds, or resin; but shall not include the mature stalks of such plant, fiber produced from such stalks, oil or cake made from the seeds of such plant, any other compound, manufacture, salt derivative, mixture or preparation of such mature stalks (except the resin extracted therefrom), fiber, oil, or cake, or the sterilized seed of such plant which is incapable of germination.'

and paragraph numbered (18) defines narcotic drugs as follows:

"Narcotic drugs' means coca leaves, opium, cannabis, isonipecaine, amidone, isoamidone, ketobemidone and every other substance neither chemically nor physically distinguishable from them; any other drugs to which the federal narcotic laws may now apply; and any drug found by the state board of pharmacy and the state board of health, after reasonable notice and opportunity for hearing, to have on addiction-forming or addiction-sustaining liability similar to morphine or cocaine, from the effective date of determination of such finding by said state board of pharmacy and state board of health.'

In Section 65-2502, we find:

'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 act.' (Italics supplied.)

In Section 65-2519, it is shown that upon conviction of a violation of the act for the first offense, the punishment is 'by a fine of not less than one hundred dollars ($100) and not exceeding one thousand dollars ($1,000) or by imprisonment in the county jail for not more than one year, or both such fine and imprisonment.' It will be noted that in this section, the penalties for subsequent convictions under the act are greatly increased.

The title of the uniform act as passed by the legislature, Laws of 1957, chapter 338, is as follows:

'An Act defining and relating to narcotic drugs, to make uniform the law with reference thereto, regulating the sale, as therein defined, and the dispensing and distribution of such narcotic drugs, declaring certain acts unlawful and prescribing penalties for violations thereof, and repealing sections 65-616 and 65-618 of the General Statutes of 1949.' (Italics supplied.)

This court has always held that where a later act of the legislature is irreconcilably repugnant to an earlier act on the same subject, the statute last enacted repealed the earlier act. In the case of Elliott v. Lochnane, 1 Kan. 126, the court said in the third paragraph of the syllabus:

'It is a rule without exception, that where two statutes are, in any respect, in both language and meaning, irreconcilably repugnant, the provisions of the statute last enacted repeal those of the former with which they conflict.'

Again, in State v. Ewing, 22 Kan. 708, the court speaking through Mr. Justice Brewer said:

'1. Section 4 of chapter 149 of the Laws of 1879, p. 270, works by implication a repeal of all prior enactments providing for the levy of a one-mill tax for the...