State v. Herr

• Decision Date: 22 April 1929
• Docket Number: 21623.
• Citation: State v. Herr, 151 Wash. 623, 276 P. 870 (Wash. 1929)
• Parties: STATE v. HERR et al.
• Court: Washington Supreme Court

276 P. 870

151 Wash. 623

STATE v. HERR et al.

No. 21623.

Supreme Court of Washington

April 22, 1929

Department 1.

Appeal from Superior Court, Kittitas County; John L. Sharpstein Judge.

Information by the State of Washington against Frank Herr and others for violating the game statutes. From a judgment of dismissal the State appeals. Affirmed.

Joseph Hovey, of Ellensburg, for the State.

Thomas M. Askren, of Seattle, and F. A. Kern, of Ellensburg, for respondents.

HOLCOMB J.

An information was filed in the superior court for Kittitas county on October 31, 1927, charging these six respondents with the violation of the game statutes, in that they did on October 20, 1927, in Kittitas county, Washington, unlawfully kill six elk.

Respondents demurred to the information upon several grounds, but upon argument of the demurrer in the lower court it was stipulated by the state and respondents that, in passing upon the demurrer to the information, the court should consider solely the question of whether or not respondents, having a general hunting license and a special elk license, could lawfully kill elk in Kittitas county Washington, on October 20, 1927. The court sustained the demurrer to the information, and, upon the announcement of the state that it would stand upon the information as filed, dismissed the action.

The information is based upon Laws Ex. Sess. 1925, c. 178, p. 521, § 57, which is denominated in the act itself as the 'Game Code of the State of Washington.' By that Code a repealing clause was also enacted, containing a schedule of a large number of acts repealed, and also a general clause repealing all acts and parts of acts in conflict therewith. Among other things, a part of section 8 of that act (page 497) reads:

'The words 'open season,' wherever used in this act, shall be held to mean the time during which it shall be lawful to hunt, trap or fish for game animals, fur-bearing animals, game birds or game fish. Each period of time prescribed as an open season shall be construed to include the first and last days thereof.'

In 1927 the Legislature passed an act which was compiled by the secretary of state, for reasons best known to himself, as chapter 291, p. 711, headed 'Game Code: License to Kill Elk.' It is entitled 'An act relating to game animals, providing for the issuance of special licenses for the killing of elk in certain localities and the disposition of license fees.' It was there enacted:

'Section 1. It shall be lawful for any citizen of the state of Washington having first procured a special annual license therefor, issued by the game commission, of any county lying east of the summit of the Cascade Mountains and north and west of the Columbia river, and south of the Wenatchee range of mountains, and paying therefor a fee of five dollars, to kill one elk in such counties, * * * between the 20th day of October and the first day of November, in the years 1927 and 1928.'

This act was approved by the Governor March 19, 1927. At the same session of the Legislature there was enacted a number of amendments to the Game Code, which were compiled by the secretary of state as chapter 258, p. 588, Laws of 1927, which was also approved by the Governor March 19, 1927, which act bore later dates of enactment than did chapter 291, supra.

Chapter 258, supra, amended the Game Code in many respects, but did not amend or purport to amend the closed season for elk in any particular. Chapter 291, supra, does not purport to be an amendatory act, but is apparently an act complete in itself, and making no reference to the Game Code, or the amendments to the Game Code later enacted by the Legislature, except that the act in question provides for the issuance of the special license therefor by the game commission of the county in which the act permits elk to be killed during the season prescribed, and for the payment of one-half of the fees collected under the permissive act (chapter 291) into the county game fund of the county in which the license is issued, and the other half into the state game fund.

It will be observed that the permissive act (chapter 291), if its terms are construed strictly, limits the open season for killing elk in the region in question, which includes Kittitas county, to the period between the 20th day of October and the 1st day of November in each of the years 1927 and 1928. The only question to be determined upon appeal is: What is the construction to be given the words used in chapter 291, supra?

Appellant contends that chapter 291 stands alone as a special act permitting the killing of elk in the region prescribed for a certain period in each year during 1927 and 1928, regardless of any provisions of the Game Code, and that chapter 291 is not to be considered in pari materia with the Game Code. Cases and texts are cited to the effect that the word 'between,' when used in speaking of the time between two certain days, generally excludes the days designated as the commencement and termination of such period. 1 Words and Phrases, First Series, 766; 7 C.J. 1146; also a number of cases from various jurisdictions to the same effect.

It is argued that the Legislature manifestly intended, when it said 'between the 20th day of October and the 1st day of November,' to limit the open season to the exclusion of the first and last days mentioned. It is also argued that it must be remembered that at the same session the Legislature, by chapter 258, amended the Game Code and must have had in mind that it had, at the same session, passed chapter 291. It is urged that, if there is any conclusion to be derived from the enactment of both chapters at the same session, chapter 258 was, in fact, passed later than chapter 291, although given a lower number in compiling chapters in the Session Laws.

Appreciating the force of the argument of appellant, we have also to bear in mind that penal statutes must be construed strictly, to the end that no citizen shall be deprived of his liberty under a law that is malum prohibitum only. State v. Coolidge, 72 Wash. 42, 129 P. 1088; State ex rel. Dorrien v. Hazeltine, 82 Wash. 81, 143 P. 436; State v. Furth, 82 Wash. 665, 144 P. 907; Huntworth v. Tanner, 87 Wash. 670, 152 P. 523, Ann. Cas. 1917D, 676; State v. Eden, 92 Wash. 1, 158 P. 967, 159 P. 700; State v. Hoffman, 110 Wash. 82, 188 P. 25; 2 Lewis' Sutherland Statutory Construction (2d Ed.) § 520.

In construing this statute we are convinced that it must be considered in pari materia with all statutes relating to the same subject; that is, closed or open seasons for the killing of such game as is described therein and in the information before us.

By the Game Code of 1925 the killing of elk throughout the state at all times was prohibited. By this same Code, in section 8, the Legislature placed an interpretation that should be followed by all courts and officers upon open and closed seasons, and prescribed that each period of time prescribed as an open season shall be construed to include the first and last days thereof. It does not appear that the subsequent chapter (chapter 291, Laws 1927) covered the whole subject-matter of the former one, or was intended to take its place. Hewitt-Lea Lumber Co. v. Chesley, 68 Wash. 53, 122 P. 993.

It has been well settled in this jurisdiction that 'All laws upon a given subject should be construed together, so as to produce a harmonious system, if possible; the presumption being that a new law relating to such subject was enacted with reference to...