State v. Carroll

Decision Date03 August 1972
Docket NumberNo. 42180,42180
Citation81 Wn.2d 95,500 P.2d 115
PartiesThe STATE of Washington, Appellant, v. Charles M. CARROLL et al., Respondents.
CourtWashington Supreme Court

Christopher T. Bayley, Pros. Atty., David Boerner, Seattle, for appellant.

Carroll, Rindal & Shulman, Joel A. C. Rindal, Neal J. Shulman, Carkeek, Harris, Harris, Myers & Vertrees, John Vertrees, DeGarmo, Leedy, Oles & Morrison, Stuart G. Oles, Lee R. McNair, Murray B. Guterson, Malcolm L. Edwards, Walthew, Warner & Keefe, Thomas P. Keefe, James A. Andersen, Kenneth Eikenberry, Kempton, Savage & Gossard, Anthony Savage, Jr., Lee, Carney, Smart & Bever, Basil L. Badley, Henry Schultheis, Seattle, for respondents.

WRIGHT, Justice.

This is a direct appeal from the superior court. The state, acting through the Prosecuting Attorney of King County, appeals from a judgment of dismissal.


The trial court dismissed this prosecution upon two grounds: One that the grand jury lost its de jure existence in the evening of May 10, 1971, and, two, that the statute under which the charges were laid was void. Respondents urged several other grounds for dismissal which were not considered by the trial court.


In the evening of May 10, 1971, the Governor of the State of Washington signed into law 'The Criminal Investigatory Act of 1971' as chapter 67. Defendants contend, and the trial court held, the grand jury then in session ceased to exist upon the signing of the 1971 act, which contained an emergency clause. This contention is directly opposed to State ex rel. Duvall v. City Council, 71 Wash.2d 462, 429 P.2d 235 (1967).

RCW 1.12.020 provides:

The provisions of a statute, so far as they are substantially the same as those of a statute existing at the time of their enactment, must be construed as continuations thereof.

Respondents attempted to show greater differences between the 1971 act and the prior statute than existed between the old and new statutes in Duvall. We do not think the differences are sufficient to produce a different result. In Duvall, as here, there was no savings clause in the new act.

The principle announced in Duvall is adopted by the overwhelming weight of authority. Numerous cases are cited by the court in Duvall and no useful purpose would be served by repeating those citations.

In Northern Pac. R.R. Co. v. Ellison, 3 Wash. 225, 28 P. 333, 29 P. 263 (1891), we said:

We can readily see how a law can be continued in force by re-enacting it, but we are unable to perceive how it can be repealed by that means. It may thus be transferred from one statute to another, but it is still the same law, and no rights can be affected merely by the change of position.

In Kraus v. Philadelphia, 265 Pa. 425, 109 A. 226 (1919), the Supreme Court of Pennsylvania said in part:

It is true that pending proceedings not fully consummated would normally fall with the repeal of the laws under which they were begun; but this result is not brought to pass where, as here, those laws are substantially re-enacted by the repealing act itself. In such cases the proceedings may be continued and concluded under the new law, subject, of course, to such modifications as it provides.

People v. Lowell, 250 Mich. 349, 230 N.W. 202 (1930), is an often cited case for the proposition that a prosecution started under an act which is amended during the pendency of the prosecution will fail. That case is not in point for several reasons. Michigan at that time had no statute similar to RCW 1.12.020. The facts were quite different. Lowell was a prosecution for violation of the liquor laws of Michigan. The act involved was amended by act No. 114 of the Public Acts of 1929 to increase the penalty by doubling it from a fine of $1,000 and one year imprisonment to a fine of $2,000 and two years imprisonment. The rule of Lowell is not applicable to the facts herein, and further that rule is not followed in the majority of jurisdictions. An even stronger reason not to follow Lowell is that it 'violates good common sense and works against the interests of society,' as was said by Butzel, J., in his masterful dissent from Lowell.

The existence and functioning of the grand jury in King County were well known in the State of Washington, and we can not believe the legislature intended to void those proceedings. On the contrary it is far more likely the enactment of the 1971 law as a Model Grand Jury Act was intended by the legislature to aid the effectiveness of the grand jury process. It was intended to assist both pending investigations and all future investigations which might be undertaken anywhere in the state.

Truly, indeed, to hold the King County grand jury ceased to exist in the evening hours of May 10, 1971, would be against good common sense and would be against the interests of society. It would be the kind of thing that causes the public at large to lose confidence in law. We do not so hold.


We then reach the question of the validity of the statute. It is the contention of respondents that RCW 9.22.010 and 9.22.040 may be considered together to give the prosecuting attorney a choice of whether to charge a felony or a gross misdemeanor for the identical act. Respondents contend the statutes are void under the holding of In re Olsen v. Delmore, 48 Wash.2d 545, 295 P.2d 324 (1956).

RCW 9.22.010 was passed in 1909. It is a general statute which provides every violation shall be a gross misdemeanor.

RCW 9.22.040 was passed in 1961. It relates specifically to conspiracy against named units of government, and provides that every violation shall be punished by a fine of not more than ten thousand dollars or by imprisonment for not more than five years or by both, thus making it a felony.

RCW 9.22.040 is a specific statute, that is, It only prohibits conspiracy against certain governmental units. There is, therefore, a difference between the crime defined in RCW 9.22.010 and the crime defined in RCW 9.22.040. If the conspiracy be against one of the specified governmental units, the prosecuting attorney must charge such offense under the special statute, RCW 9.22.040.

This is similar to the situation wherein the general statute on manslaughter, RCW 9.48.060, was passed in 1854. In 1937 the negligent homicide statute, RCW 46.56.040 (now RCW 46.61.520), was passed providing only for the crime when committed by the driving of a motor vehicle.

The matter was considered in State v. Collins, 55 Wash.2d 469, 470, 348 P.2d 214, 215 (1960) and it was therein held the prosecuting attorney could not make a choice between the two statutes. We said in part:

The general manslaughter statute antedates the special negligent homicide statute, which is directed to one specific mode of committing a homicide. This invokes the rule that, where a general and subsequent special statute relates to the same subject, the provisions of the latter must prevail. Hartig v. Seattle, 53 Wash. 432, 102 P. 408.

We hold that in all cases where the negligent homicide statute is applicable, it supersedes the manslaughter statute. This not only accords with the rules of statutory construction, but is the interpretation necessary to satisfy the requirements of the fourteenth amendment to the Federal constitution requiring equal protection of the law for all persons. The principle of equality before the law is inconsistent with the existence of a power in a prosecting attorney to elect, from person to person committing this offense, which degree of proof shall apply to his particular case.

There is no choice given to the prosecuting attorney to charge under one section or the other, and, therefore, the statute is valid.


If the judgment of the trial court can be sustained upon any ground, whether the grounds stated by the trial court or not, it is our duty to affirm. Peterson v. Hagan, 56 Wash.2d 48, 351 P.2d 127 (1960) and cases cited therein at page 52. See also, Vacca v. Steer, Inc., 73 Wash.2d 892, 441 P.2d 523 (1968); Kirkland v. Steen, 68 Wash.2d 804, 416 P.2d 80 (1966). We will, therefore consider the other matters raised by respondents.


The respondents argue that the 1961 act (Laws of 1961, ch. 211) violates Const. art. 2, § 19 which reads: 'No bill shall embrace more than one subject, and that shall be expressed in the title.' Even the briefest examination of chapter 211 will clearly show it embraces only one subject, namely, conspiracy against the state, any county, city, town, district, or other municipal corporation, or any department or agency thereof. That subject is expressed in the title.

The real objection is the respondents' claim the title is too broad. They object to the words, 'increasing penalties for certain collusion; amending section 3, chapter 12, Laws of 1921 and RCW 9.18.140.' The words, 'increasing penalties for certain collusion,' are certainly within the act. The penalty for conspiracy against the designated entities was greatly increased, from a gross misdemeanor to a felony with punishment by a fine of not more than ten thousand dollars, or imprisonment for not more than five years, or both. That was certainly an increased penalty. An amendment removed part of the act as it was originally written and introduced. Sections 2 and 3 of the original bill were deleted and, therefore, RCW 9.18.140 was not amended. That proposed amendment was the essence of section 2. Section 3 was merely a severability clause which became surplusage when section 2 was stricken. The title was not changed at the same time and, therefore, included more than the act. This situation gave rise to the claim the title was too broad.

We held in Cudihee v. Phelps, 76 Wash. 314, 136 P. 367 (1913) that too broad a title was not a violation of article 2, section 19.

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