State v. Houge

Decision Date19 February 1937
Docket NumberCr. No. 138.
Citation67 N.D. 251,271 N.W. 677
PartiesSTATE v. HOUGE.
CourtNorth Dakota Supreme Court

OPINION TEXT STARTS HERE

Syllabus by the Court.

1. Section 7316, Comp.Laws 1913, which provides that: “The repeal of any statute by the legislative assembly shall not have the effect to release or extinguish any penalty, forfeiture or liability incurred under such statute, unless the repealing act shall so expressly provide and such statute shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture or liability,” is applicable to statutes enacted pursuant to the initiative provisions of the Constitution as well as to statutes enacted by the Legislative Assembly.

2. Following State ex rel. Snodgrass v. French, 32 N.D. 362, 155 N.W. 687, it is held that said section 7316, supra, is a general saving provision which is applicable to and must be read into a statute which repeals a law that imposes a penalty or punishment and has the same effect as if it had been inserted in the repealing statute; hence, a person who is convicted of an offense must be punished under the law as it existed at the time of the commission of the offense although the act creating the offense and prescribing the punishment has since been repealed.

Appeal from Ransom County Court; Thompson, Judge.

Oscar Houge was convicted of the offense of engaging in the liquor traffic, and he appeals from the judgment of conviction and from an order denying a motion in arrest of judgment.

Affirmed.

Hugo P. Remington, of Lisbon, for appellant.

P. O. Sathre, Atty. Gen., and John B. Adams, State's Atty., of Lisbon, for the State.

Clair F. Brickner, of Fargo, amicus curiæ.

CHRISTIANSON, Chief Justice.

The defendant was convicted in the county court of Ransom county of engaging in the liquor traffic, and he appeals from the judgment of conviction and from an order denying his motion in arrest of judgment. The sole question presented for determination is whether at the time of the conviction and sentence there was any statute in this state authorizing punishment to be imposed upon the defendant. The information charges that the defendant committed the crime of engaging in the liquor traffic in Ransom county on the 6th day of March, 1935. It is conceded that the information sets forth facts which show that the defendant at that time committed a public offense. But it is contended by the appellant that the statute which defendant then violated was repealed and abrogated by the liquor control act initiated pursuant to the initiative provision of the Constitution and adopted at the general election in 1936, and that as soon as the latter act became effective it not only repealed the former statutes (making it an offense to engage in the liquor traffic), but abrogated all penalties and punishments for any and all violations of said statutes while they were in force.

In this state the manufacture and sale of intoxicating liquors for beverage purposes were forbidden by the Constitution (N.D.Const. § 217), and appropriate legislation was enacted to put the constitutional mandate into effect. The constitutional provision was repealed by constitutional amendment adopted at the general election in 1932. Article 47, Amendments N.D. Const.; see Laws 1933, p. 492. But the repeal did not abrogate or repeal the then existing statutes prohibiting the importation, manufacture, sale, or possession of intoxicating liquor for beverage purposes. In re Aipperspach, 63 N.D. 358, 248 N.W. 488;State v. Norton, 64 N.D. 675, 255 N.W. 787. See, also, State v. Ligaarden, 59 N.D. 475, 230 N.W. 729, 70 A.L.R. 126;Fylken et al. v. Minot, 66 N.D. 251, 264 N.W. 728, 103 A.L.R. 320.

At the general election in 1936 an initiative measure known as the liquor control act was submitted to the electors pursuant to the initiative provisions of the Constitution. The measure was approved by the electors, and according to the provisions of the Constitution it became effective on the thirtieth day after November 3, 1936. The act provided for the wholesale and retail sale of alcohol and alcoholic beverages in the manner and pursuant to the regulations and restrictions prescribed by the act. It authorized places of sale to be established and provided for the licensing of retail and wholesale dealers by the governing bodies of cities and villages, and by the county commissioners in places of sale located outside of the incorporated limits of cities and villages. The act declared that “the object of this enactment is to provide for the sale and regulation of alcohol and alcoholic beverages in the state of North Dakota.” It further provided: “All acts and parts of acts in conflict with provisions of this act are hereby repealed.”

The defendant was arrested on the 7th day of March, 1935, under a warrant issued upon a duly verified complaint charging him with the crime of engaging in the liquor traffic. On that same day he was committed to answer the charge at the next term of the county court of Ransom county and admitted to bail in the sum of $1,000. On December 14, 1936, the action came on for trial in said county court. The defendant interposed a demurrer to the criminal information on the ground that such information failed to state facts sufficient to constitute a public offense. The demurrer was overruled. Thereupon the defendant entered a plea of guilty and was sentenced to imprisonment in the county jail and to pay a fine. Thereafter the defendant moved in arrest of judgment. The motion was overruled, and the instant appeal was taken from the judgment and from the order denying the motion in arrest of judgment.

Appellant contends that when the liquor control act became effective, all laws then in existence making it a crime to engage in the liquor traffic and all penalties and punishmentsprescribed by such laws for violation thereof were abrogated. The respondent, on the other hand, contends that the liquor control act did not operate to repeal all existing laws relating to liquor traffic; that it operated to repeal only laws relating to such traffic to the extent that such former laws were in clear conflict with the provisions of the liquor control act and then only to the extent of such conflict; and that the provisions of law which the defendant is charged with having violated were not so inconsistent with the provisions of the liquor control act as to be repealed by the latter. The respondent further contends that even though the liquor control act did operate to repeal the provisions of law which the defendant is charged with having violated, nevertheless the penalty or punishment prescribed by such law for a violation thereof were not repealed, but remained in full force and effect under the provisions of section 7316, Comp.Laws 1913, which reads: “The repeal of any statute by the legislative assembly shall not have the effect to release or extinguish any penalty, forfeiture or liability incurred under such statute, unless the repealing act shall so expressly provide and such statute shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture or liability.”

[1] In our opinion respondent's latter contention is well founded, and section 7316, supra, operates to continue in full force and effect the punishment prescribed by the laws of this state for unlawfully engaging in the liquor traffic, even though the law creating such offense has been wholly repealed.

[2] It is definitely settled that section 7316, supra, applies to criminal cases. State ex rel. Snodgrass v. French, 32 N.D. 362, 155 N.W. 687. But appellant contends that this statute applies only where “the legislative assembly” repeals a statute, and that it does not apply where a statute is repealed by statute enacted pursuant to initiative petition.

[3] In our opinion appellant's contention is not well founded. Section 7316, supra, was first adopted in this jurisdiction in 1877 as a part of the Code of the Territory of Dakota. Civ.Code 1877, § 2133. The statute was borrowed from the federal statutes. See section 13, ch. 2, title 1, U.S. Rev.Stat.1878 (1 U.S.C.A. § 29). The Territorial Legislature adopted the federal statute verbatim, with the single exception that it inserted the words which we have italicized. That is, the Territorial Legislature inserted the words “by the legislative assembly.” The statute as enacted by the Territorial Legislature has been retained without change. On the establishment of statehood it was retained in force by virtue of the provisions of the State Constitution. Constitution, N.D. Schedule § 2. When enacted by the Territorial Legislature there was a clear and valid reason why the words “by the legislative assembly” should have been inserted in the statute which had been borrowed from the federal statutes. The Territorial Legislative Assembly, in fact, the entire territorial government, was exercising such powers and such powers only as had been delegated by the acts of Congress. 62 C.J. p. 796. The powers granted to the Territorial Legislature were at all times subject to such modifications as Congress might see fit to adopt. 62 C.J. 796. Congress had power not only to modify or alter the powers of the Territorial Legislature; it had power at any time it saw fit so to do to legislate directly for the local government or local affairs of the territory. 62 C.J. 798. It had “the power of supervision over the legislative body” of the territory, and it might at any time it saw fit so to do “annul...

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  • Northwestern Bell Telephone Company v. Wentz
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    ...of Dunseith, supra; State v. First State Bank, 52 N.D. 231, 202 N.W. 391; Baird v. Burke County, 53 N.D. 140, 205 N.W. 17; State v. Houge, 67 N.D. 251, 271 N.W. 677. A constitution, like other laws, is subject to construction by the courts, but it is a cardinal rule of construction that a c......
  • State ex rel. Eckroth v. Borge
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    • North Dakota Supreme Court
    • January 16, 1939
    ...by one is subject to the same rules of construction and the same tests of constitutionality as one enacted by the other." State v. Houge, 67 N.D. 251, 271 N.W. 677. principle is elementary that where there are two possible interpretations of a statute by one of which the statute would be un......
  • Cuthbert v. Smutz
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    • December 9, 1938
    ...of any statute “by the people themselves through the exercise of the referendum”; but the principle announced in State v. Houge, 67 N.D. 251, 255, 271 N.W. 677, 679, and the reasoning therein is applicable here. Thus Section 7316 applies to the repeal in question. See, also, Hertz v. Woodma......
  • In re ex parte Chambers
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    • North Dakota Supreme Court
    • May 8, 1939
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