State v. Economy

• Decision Date: 20 October 1942
• Docket Number: 3374.
• Citation: 130 P.2d 264,61 Nev. 394
• Parties: STATE v. ECONOMY.
• Court: Nevada Supreme Court

130 P.2d 264

61 Nev. 394

STATE v. ECONOMY.

No. 3374.

Supreme Court of Nevada

October 20, 1942

Appeal from Fourth Judicial District Court, Elko County; James Dysart, Judge.

George Economy was convicted of peddling a narcotic drug, and he appeals.

Affirmed and cause remanded with directions.

George F. Wright, of Elko, for appellant.

Gray Mashburn, Atty. Gen., W. T. Mathews and Alan Bible, Deputy Attys. Gen., and C. B. Tapscott, Dist. Atty., of Elko, for respondent.

DUCKER Chief Justice.

Defendant was convicted in the district court of peddling a narcotic drug known as marihuana, in violation of § 5 of the narcotic act of 1923, as amended by the act of 1935, Chap. 33, Session Laws 1923, pages 39, 40, 41; Chap. 73 Session Laws 1935 pages 160, 161. Section 1 of the former act, as amended by the act of 1931, Chap. 43, Session Laws 1931, pages 51, 52 reads:

"Each and all of the following are hereby declared to be narcotic drugs: Cannabis indica, cocaine, opium, yen shee morphine, codeine, heroin, marihuana, anhalonium (peyote or mescal button), or any of the salts, derivatives or compounds of the foregoing substances, or any preparation or compound containing any of the foregoing substances, or their salts, derivatives, or compounds."

Section 3 provides: "Where any person is convicted of a violation of the provisions of section 2 of this act and upon trial or upon a plea of guilty a prior conviction shall be proved against him, he shall be deemed guilty of a felony and be punished accordingly. The words 'prior conviction' shall be construed as meaning a previous conviction at any time in any court in this or any other state for a violation of either the provisions of this act or of any statute or ordinance dealing with or regulating the use, supply or possession of any or all narcotic drugs."

Section 5, as amended, provides in part: "A peddler of any of the narcotic drugs enumerated in section 1 of this act is hereby defined as a person selling, furnishing, or giving away, or growing, or having in his possession for the purpose of sale, furnishing, or gift of any of said narcotic drugs in quantities not exceeding one ounce. *** Any person who shall be convicted of being a peddler as herein defined shall be punished by imprisonment in the state prison for a period of not less than five years ***."

Defendant contends that the above act has been repealed by Chapter 23, Session Laws 1937, page 35, et seq., or by Chapter 79, Session Laws 1941, pages 115, 116, 117. The 1937 act contains no specific repealing clause. In general terms section 25 of the act provides: "Repeal. All acts or parts of acts which are inconsistent with the provisions of this act are hereby repealed."

Is the 1923 act repealed by implication of the 1937 act? Repeals by implication are not favored and will not be indulged if there is any other reasonable construction, yet where a statute covers the whole subject matter of an earlier act and it is evident that it was intended as a substitute for it, a repeal is effected though the repealing act contains no express words to that effect. 59 C.J. 921; United States v. Tynen, 78 U.S. 88, 11 Wall. 88, 20 L.Ed. 153; United States v. Claflin, 97 U.S. 546, 24 L.Ed. 1082; Henrietta Min., etc., Co. v. Gardner, 173 U.S. 123, 19 S.Ct. 327, 43 L.Ed. 637; Pratt Institute v. City of New York, 183 N.Y. 151, 75 N.E. 1119, 5 Ann. Cas. 198; Thorpe v. Schooling, 7 Nev. 15; State v. Lee, 28 Nev. 380, 82 P. 229; Gill v. Goldfield Consol. Mines Co., 43 Nev. 1, 176 P. 784, 184 P. 309; Carson City v. Board of County Commissioners, 47 Nev. 415, 224 P. 615. In Thorpe v. Schooling, supra, the court said:

"True, repeals by implication are not favored; and if it be not perfectly manifest, either by irreconcilable repugnancy, or by some other means equally indicating the legislative intention to abrogate a former law, both must be maintained. The intention, if perfectly clear, however, must control, however it may be expressed or manifested. It is upon this principle, evidently, that it is held that a statute revising the whole subject matter of a former law repeals it. ***

'A subsequent statute,' said [the court in quoting from] Dewey, J. [in Bartlet v. King, 12 Mass. 537, 7 Am.Dec. 99], 'revising the whole subject matter of a former one, and evidently intended as a substitute for it, although it contains no express words to that effect, must, on the principles of law, as well as in reason and common sense, operate to repeal the former."'

We will not unduly lengthen this opinion by setting out the two acts in full. While the later act does not purport to be a revision of the earlier act, it is in effect a revision. It is a complete system for regulating the possession, use, sale, distribution or administration of narcotic drugs. This is reflected in the title, which is as follows: "Chap. 23--An Act defining and relating to narcotic drugs, prohibiting the use, sale, distribution, or administration thereof, except under the lawful direction of duly licensed practicing physicians, dentists, veterinarians, manufacturers, apothecaries and others, prohibiting the unlawful possession, use, sale, distribution or administration thereof, and to make uniform the law with reference thereto, prescribing penalties for the violation hereof, and other matters properly relating thereto, and repealing all acts and parts of acts in conflict herewith."

The body of the act covers the whole subject of the 1923 act as amended, and contains new provisions. It is provided in the 1937 act that it may be cited as the "Uniform Narcotic Drug Act."

Respondent contends that the purpose of the earlier act is solely to prohibit the sale, supply, use and possession of narcotic drugs by persons wholly unauthorized to handle the same in any manner, while that of the later act pertains only to persons who are in some manner authorized by law to do so.

A comparison of the respective acts does not bear out this contention. We think both acts deal with both classes of persons. Concededly by this prosecution and as will be seen by reference to section 5 of the 1923 act, it deals with unauthorized persons, and section 6 of the act relates to persons authorized to deal in drugs, such as jobbers, wholesalers, manufacturers, physicians, veterinarians, and dentists. Violation of this act is made a misdemeanor. Unauthorized persons are dealt with in paragraph 1 of section 1 of the Uniform Narcotic Drug Act, and in sections 2, 11, 13, 14, 17, 20, and 21. Paragraph 1 provides: "'Person' includes any corporation, association, copartnership, or one or more individuals."

As distinguished from these are defined in paragraphs 2 to 9 inclusive, those who afterwards in the act under some circumstances are authorized to deal in narcotic drugs. Section 2 of the act includes all of the aforesaid. It provides: "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."

Respondent particularly stresses section 15 of the Uniform Narcotic Drug Act as indicating a purpose of the act to be applicable only to persons authorized to deal in narcotic drugs. The section reads: "On the conviction of any person of the violation of any provisions of this act, a copy of the judgment and sentence, and of the opinion of the court or magistrate, if any opinion be filed, shall be sent by the clerk of the court, or by the magistrate, to the board or officer, if any, by whom the convicted defendant has been licensed or registered to practice his profession or to carry on his business. On the conviction of any such person the court may, in its discretion, suspend or revoke the license or registration of the convicted defendant to practice his profession or to carry on his business. On the application of any person whose license or registration has been suspended or revoked, and upon proper showing and for good cause, said board or officer may reinstate such license or registration."

The italics are ours and we think the words, "if any" so italicized, save the section from the construction respondent claims. Section 20 of the Uniform Narcotic Drug Act provides in the following language a common punishment for all violators of the act, viz.: "Any person violating any provision of this act shall be deemed guilty of a felony, and upon conviction thereof shall be punished, for the first offense, by imprisonment in the state prison of the State of Nevada for not less than two years nor more than ten years; and for any subsequent offense, a prior conviction having been had at any time in any court in this or any other state or federal court, for a violation of either the provisions of this act or of any statute or ordinance dealing with or regulating the use, supply or possession of any or all narcotic drugs, shall, upon conviction, be punished by imprisonment in the state prison of the State of Nevada for not less than ten years."

Comparing this section with section 3 of the 1923 act it will be observed that part of the language in both as to a prior conviction, is identical. This in itself is some indication of an intent to substitute. It will be further observed that the penalties of the two acts are such that they present clear repugnancies. The first act makes the punishment for mere possession of any narcotic drug a gross misdemeanor. The later act makes it a felony and punishable for the first offense by imprisonment in the state prison for not less than two years nor more than ten years. The act provides that one who shall be convicted of selling any narcotic drug in quantities not exceeding one ounce shall be punished by imprisonment in the state prison for a...