State v. Hanover

• Decision Date: 04 March 1910
• Parties: STATE v. HANOVER.
• Court: Washington Supreme Court

107 P. 388

55 Wash. 403

STATE v. HANOVER.

Supreme Court of Washington

March 4, 1910

Department 2. On Rehearing. Former opinion reversed, and judgment below affirmed.

For former opinion, see 104 P. 624.

J. T. Casey and Milo A. Root, for appellant.

W. P Bell, for the State.

DUNBAR J.

This case was heard by this court at the October term, 1909, and the opinion is reported in 104 P. 624. There was no appearance by the state. It was urged by the appellant that the statute under which he was informed against, viz section 8, p. 119, Sess. Laws 1889-90, had been repealed between the date when the offense was charged to have been committed and the date of the trial, by an act of the Legislature regulating the practice of medicine and surgery (Laws 1909, p. 677), which, by reason of an emergency clause, took effect March 18, 1909, which was before the trial and conviction of the appellant. This court took that view of the law, and the judgment of the lower court was reversed. But chapter 6, Ex. Sess. Laws 1901, p 13, was not called to the attention of the court, and was inadvertently omitted from consideration. Upon the occurrence of this statute to the minds of the court, upon its own motion it set the case for a rehearing, and called upon the Attorney General to appear in behalf of the state, which he did by both brief and oral argument. The provision above referred to is as follows: 'No offense committed and no penalty or forfeiture incurred previous to the time when any statutory provision shall be repealed, whether such repeal be express or implied, shall be affected by such repeal, unless a contrary intention is expressly declared in the repealing act, and no prosecution for any offense, or for the recovery of any penalty or forfeiture, pending at the time any statutory provision shall be repealed, whether such repeal be express or implied, shall be affected by such repeal, but the same shall proceed in all respects, as if such provision had not been repealed, unless a contrary intention is expressly declared in the repealing act. Whenever any criminal or penal statute shall be amended or repealed, all offenses committed or penalties or forfeitures incurred while it was in force shall be punished or enforced as if it were in force, notwithstanding such amendment or repeal, unless a contrary intention is expressly declared in the amendatory or repealing act, and every such amendatory or repealing statute shall be so construed as to save all criminal and penal proceedings, and proceedings to cover forfeitures, pending at the time of its enactment, unless a contrary intention is expressly declared therein.'

If this act is constitutional, it must be seen that the former opinion of the court was wrong on the point on which it was based, and its constitutionality is not seriously called in question by appellant. But the validity of the act has been declared at least twice by this court: First, in State v Fair, 35 Wash. 127, 76 P. 731, 102 Am. St. Rep. 897,...