State v. Gibbons

Decision Date04 January 1922
Docket Number16658.
CourtWashington Supreme Court
PartiesSTATE v. GIBBONS.

Department 2.

Appeal from Superior Court, Adams County; John Truax, Judge.

Fred Gibbons was convicted of unlawfully having in his possession intoxicating liquor, as a second offense, and he appeals. Reversed and remanded, with directions.

John T. Mulligan, of Los Angeles, Cal., for appellant.

W. O Miller, of Ritzville, for the State.

PARKER, C.J.

Upon an information filed in the superior court for Adams county by the prosecuting attorney of that county, the defendant Gibbons was by a jury found guilty of the offense of unlawfully having in his possession in that county on December 24, 1920, intoxicating liquor, to wit, twelve quarts of whisky; the jury further finding that on November 6, 1918 defendant had been duly convicted in the superior court for Spokane county of the offense of unlawfully having an excess quantity of liquor in his possession, all as charged in the information filed against him in this case. The trial court rendered judgment against the defendant upon these findings adjudging him guilty of the aggravated offense. From this judgment he has appealed to this court.

The words, 'excess quantity of liquor,' found in the record of the former conviction of the appellant, introduced in evidence in this case, and also found in the information and verdict in this case, indicate that his former conviction was under section 22 of Initiative Measure No. 3, adopted by a vote of the people in November, 1914, reading as follows:

'It shall be unlawful for any person to have in his possession more than one-half gallon or two quarts of intoxicating liquor other than beer, or more than twelve quarts or twenty-four pints of beer. * * *' Laws of 1915 p. 14; Rem. Code, § 6262-22.

The conviction of the defendant in this case was under sections 11 and 15, c. 19, pp. 60 and 61, Laws of 1917, which are amendatory to Initiative Measure No. 3 of 1914, which sections, in so far as we need here notice them, read as follows:

'Sec. 11. That said initiative measure No. 3 be amended by adding thereto a new section to be known as section 17h and to read as follows:
"Section 17h. It shall be unlawful for any person * * * to have in his possession any intoxicating liquor other than alcohol. * * *'
'Sec. 15. That section 32 of said Initiative Measure No. 3 be amended to read as follows:
"Section 32. Every person convicted the second time of a violation of any provision of this act, for which the punishment is not specifically prescribed, shall be punished by a fine of not less than two hundred nor more than five hundred dollars and by imprisonment in the county jail for not less than thirty days nor more than six months and every person convicted the third time of a violation of any provision of this act shall, for such third and each subsequent conviction, be punished by imprisonment in the penitentiary for not less than one nor more than five years. Every prosecuting attorney, and every justice of the peace, having knowledge of any previous conviction or convictions of any person accused of violating this act, shall in preparing a complaint, information or indictment, for subsequent offenses, allege such previous conviction or convictions therein, and a certified transcript from the docket of any justice of the peace, or a copy of the record of any court of record, certified by the clerk thereof under the seal of the court, shall be sufficient evidence and proof of such previous conviction or convictions."

It is first contended in appellant's behalf that section 11 of the act of 1917, above quoted, which is amendatory to Initiative Measure No. 3 of 1914, is rendered void and of no effect by the passage of the National Prohibition Law, the so-called Volstead Act (41 Stat. 305), which reads in part as follows:

'* * * It shall not be unlawful to possess liquors in one's private dwelling. * * *' 41 Stat. p. 317, § 33.

The argument is that our state law is in conflict with the federal law touching the possession of liquor in one's dwelling; that is, that the ban of our law rests upon liquor possessed in one's dwelling as well as possessed elsewhere, while the federal law in terms makes possession in one's dwelling lawful, and that therefore the state law must be held of no effect touching the question of unlawful possession of intoxicating liquor. We think that we are not here called upon to enter upon the interesting inquiry as to when and under what circumstances, if any, state and federal laws, passed in pursuance of the state and federal legislative 'concurrent power to enforce' the Eighteenth Amendment to the Federal Constitution, may become so in conflict that one of such laws or some part thereof must give way to the other. In this case there is no attempt to enforce our state law, so as to come in conflict with the federal law with relation to the possession of liquor in 'one's private dwelling.' Even conceding here, for the purpose of argument, that as to such possession there is such a conflict as to make one law superior in that respect to the other, the possession of the liquor charged against appellant in this case was concededly not in his private dwelling. We think it is plain that, in so far as our state law is sought to be enforced in this case, it is in no event in conflict with the federal law.

It is conceded by counsel for appellant that:

'* * * The state prohibition law has not been abrogated, suspended, or superseded by the National Prohibition Act, except in so far as the state prohibition law is in conflict with the National Prohibition Act.'

Our late decisions in State v. Turner, 196 P. 638, and State v. Woods, 198 P. 737, render it plain that such is the settled law of this state.

It is contended that the amendatory act of 1917, above quoted from, and under which this prosecution is being waged, is void and of no effect, because it was enacted by the Legislature in violation of the provision of the initiative and referendum provision of the Seventh Amendment to our Constitution, reading as follows:

'(c) * * * No act, law, or bill approved by a majority of the electors voting thereon shall be amended or repealed by the Legislature within a period of two years following such enactment.'

Initiative Measure No. 3 was adopted by the people at the November election of 1914, and such adoption evidenced by proclamation of the Governor on December 5, 1914. The concluding section of that measure and act reads as follows:

'Sec. 33. This act shall take effect and be in full force and effect from and after the first day of January, 1916.' Laws of 1915, p. 17.

The amendatory act of 1917, above quoted from, was passed by the Legislature and approved by the Governor on February 19, 1917; more than two years following the vote of the people upon Initiative Measure No. 3, and the proclamation of the Governor evidencing the adoption of that measure, but less than two years following January 1, 1916, the time of the taking effect of that act by its terms as expressed in section 33 thereof.

The argument is, in substance, that the words 'two years following such enactment,' in the above quotation from the Seventh Amendment to our Constitution, mean two years following the time when an initiative measure by its own terms is to take effect, and that since Initiative Measure No. 3 by its own terms was not to take effect until January 1, 1916, it could not be constitutionally amended within two years from that date. We cannot agree with this view. The word 'enactment,' used with reference to the making of a law, may possibly under some circumstances be used in such manner, with reference to some act to be done or duty to be performed in pursuance of its terms, as to call for its construction as meaning 'taking effect'; but we see nothing in the initiative provision of our Constitution to suggest any such meaning. The word 'enactment,' with reference to the making of a law, means under almost all conceivable conditions the exercise of the legislative power bringing the law into existence. This we think is true, whether such legislative power be the act of the people in making or amending their Constitution, the act of the people in making or amending a statute, or the act of a representative legislative body in making or amending a statute. When the people or body possessing such legislative power have completely exercised their power in bringing the law into existence, the enactment of the law has become complete. Whether Initiative Measure No. 3 was completely enacted in a legal sense, when voted upon by the people in November, 1914, or not until the issuance of the Governor's proclamation evidencing the vote of the people thereon, is not necessary to decide here. That measure in any event became completely enacted not later than when the Governor issued his proclamation on December 5, 1914. We conclude that after two years following that date, in any event, Initiative Measure No. 3 would be subject to be constitutionally amended by the Legislature. This, as we have seen, was done by the legislative amendatory act of 1917 here in question; hence that amendatory act was constitutionally enacted in so far as the question of time following the enactment of Initiative Measure No. 3 is concerned.

Contention is made in appellant's behalf that the superior court erred in putting him upon trial to answer a complaint different from that which was first filed against him in the justice court. On December 24, 1920, appellant was charged by the prosecuting attorney by a complaint filed with a justice of the peace, with the simple offense of unlawfully having in his possession intoxicating liquor, as being committed on...

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