State v. Owen

• Decision Date: 31 July 1917
• Docket Number: 14140.
• Citation: 97 Wash. 466,166 P. 793
• Court: Washington Supreme Court
• Parties: STATE v. OWEN.

166 P. 793

97 Wash. 466

STATE v. OWEN.

No. 14140.

Supreme Court of Washington

July 31, 1917

Department 1. Appeal from Superior Court, Spokane County; Henry L Kennan, Judge.

H. M Owen was convicted of transporting intoxicating liquors in violation of law, and he appeals. Affirmed.

A. C Shaw, of Spokane, for appellant.

John White, of Spokane, for the State.

ELLIS C.J.

Defendant Owen and three other men were charged in the justice court, Spokane county, with a violation of sections 15 and 20 of chapter 2 of Laws of 1915, commonly referred to as initiative measure No. 3. Section 15 prescribes the form of permit to be issued by the county auditor for the transportation of intoxicating liquor within this state, and provides:

'It shall be unlawful for any person to ship, carry or transport any intoxicating liquor within the state without having attached thereto or to the package or parcel containing the same, such permit, or to transport or ship under said permit an amount in excess of the amount of quantity hereinbefore limited.'

Section 20 makes it unlawful to transport or receive within this state any intoxicating liquor unless the parcel or package containing such liquor be clearly and plainly marked in large letters: 'This package contains intoxicating liquor.'

The charging part of the complaint here involved is as follows:

'That on or about the 9th day of June, A. D. 1916, in the county of Spokane, state of Washington, the said defendants, J. W. Critzer, M. H. Owen, B. M. Barton, and Cornelius Oosterveer, then and there being, did then and there willfully and unlawfully transport and carry from the state of Montana and bring into the state of Washington and into Spokane county, Wash., and did then and there have in their possession 6 1/2 gallons of whisky contained in one five-gallon demijohn, two one-half gallon glass demijohns, and two quart bottles, without the said packages containing said whisky being marked as required by law and without any permits being attached thereto, as required by law, and the said quantity of whisky being in excess of the quantity permitted to be in possession of said defendants, contrary to the statutes in such case made and provided and against the peace and dignity of the state of Washington.'

Critzer and Oosterveer pleaded guilty and were fined by the justice. Barton and defendant stood trial, were convicted, and appealed to the superior court, where Barton also entered a plea guilty and was fined. Defendant Owen pleaded not guilty, stood trial, was by the jury found guilty as charged, and was by the court sentenced to pay a fine of $200 and costs. From the judgment of conviction and sentence he prosecutes this appeal. The evidence will be noticed in the course of our discussion.

First, contending that the complaint made several distinct charges, appellant at the opening of the trial, but without withdrawing his plea of not guilty, moved the court to compel the state to elect whether he should be tried (1) for having in his possession whisky without a permit, or (2) for having in his possession permitted quantity, or but in excess of the permitted quantity, or (3) for transporting or carrying within the state whisky without a permit, or (4) for so transporting or carrying whisky with a permit but in excess of the permitted quantity. The overruling of this motion is assigned as error. The question of duplicity can only be raised by demurrer or motion to quash in the nature of a demurrer or by motion to compel an election. But such demurrer or motion cannot be entertained while a plea of not guilty is pending. The motion was properly overruled. State v. McBride, 72 Wash. 390, 130 P. 486; State v. Phillips, 65 Wash. 324, 118 P. 43; State v. Blanchard, 11 Wash. 116, 39 P. 377.

Next contending that the seventh amendment to the state Constitution, providing for the initiative and referendum, is void as violative of section 4, art. 4, of the federal Constitution, guaranteeing to every state a republican form of government, and that initiative measure No. 3 enacted pursuant to that amendment is therefore void, appellant again objected to the introduction of any evidence. The overruling of this ground of objection is assigned as error. So far as it presents a question within the cognizance of any court, this presents a federal question, and the federal Supreme Court has uniformly held that the constitutional guaranty of a republican form of government is of a political character exclusively committed to Congress and as such is beyond the jurisdiction of the courts. Pacific States Tel. & Tel. Co. v. Oregon, 223 U.S. 118, 32 S.Ct. 224, 56 L.Ed. 377.

In this particular contention appellant is not asserting an infringement of any of his own constitutional rights. As pointed out in the case above cited, the assault made by the contention here advanced is not on the law as a law, 'but on the state as a state. It is addressed to the framework and political character of the government by which the statute * * * was passed,' not to the statute itself. See, also, 6 R. C. L. 44 and 45, and cases there cited, and note 50 L. R. A. (N. S.) 196 and 197. Congress, the body to which the matter is exclusively committed, has foreclosed the question by admitting into the councils of the Union senators and representatives from this state ever since the adoption of the seventh amendment to our Constitution, thus recognizing the republican character of our state government notwithstanding that amendment. Pacific Tel. & Tel. Co. v. Oregon, supra.

Appellant further asserts that section 20 of initiative measure No. 3 is violative of the commerce clause of the federal Constitution and of the act of congress of March 1, 1913 known as the Webb-Kenyon Act. In...