State v. Paul

• Decision Date: 20 August 1915
• Docket Number: 12717.
• Citation: 87 Wash. 83,151 P. 114
• Parties: STATE v. PAUL.
• Court: Washington Supreme Court

151 P. 114

87 Wash. 83

STATE v. PAUL.

No. 12717.

Supreme Court of Washington

August 20, 1915

Department 1. Appeal from Superior Court, Clarke County; R. H. Back Judge.

William Paul was convicted of selling intoxicating liquor in local option territory, and he appeals. Affirmed.

Miller & Wilkinson, of Vancouver, for appellant.

Jas. O Blair and L. M. Burnett, both of Vancouver, for the State.

PARKER, J.

The defendant was convicted and fined in the Clarke county superior court for selling intoxicating liquor in the city of Vancouver, while that city, as claimed by the prosecution was a unit in which such sale was prohibited by virtue of an election held therein under the local option law. Rem. & Bal. Code, § 6292 et seq. He has appealed to this court, and seeks reversal of the judgment rendered against him upon the sole ground that the local option law was not, at the time the sale was made by him upon which his prosecution rests, in force in the city of Vancouver, because it had then been superseded and rendered of no effect by virtue of the passage of the state-wide prohibition law, being Initiative Measure No. 3, adopted at the general election of November 3, 1914. Laws 1915, p. 2.

At the general election of November 3, 1914, the people of the city of Vancouver voted, under the local option law, to prohibit the sale of intoxicating liquor therein. No contention is made against the regularity or validity of this election, or that it would not result in making the sale of intoxicating liquor in that city unlawful after the 1st day of January 1915, but for the passage of the prohibition law by the vote of the people of the state on November 3, 1914. At that time the appellant was duly licensed to sell intoxicating liquor in the city up until June, 1915. The sale upon which his conviction rests was made by him on January 7, 1915. It is conceded that the election of November 3, 1914, would revoke his license and render the local option law effective in Vancouver on January 1, 1915, but for the passage of the prohibition law on November 3, 1914. The concluding section of the prohibition law (Laws 1915, p. 17) reads:

'This act shall take effect and be in full force and effect from and after the first day of January, 1916.'

Counsel for appellant argues, in substance, that while this law will not be in force to prevent the sale of intoxicating liquor in the state until January 1, 1916, it nevertheless, immediately upon its passage by the people, superseded and rendered of no effect the local option law, in so far, in any event, as putting that law into force in a new territory is concerned, and that since the local option law was to go into force in the city of Vancouver on January 1, 1915, by virtue of the local election, and the prohibition law was passed by the people prior to that time, the local option law did not go into force in that city at all. In their brief counsel for appellant state their position as follows:

'We do not contend that the ordinary police regulation would not continue in force, and that public authorities would have the same power and control over the liquor business that they had under previous laws, so far as control extended; but our position is that no legislation can be enacted or put into force, after this law went into operation, which would be in conflict with it or with its evident spirit and purpose.'

In support of this position counsel call our attention to the provisions of the initiative and referendum amendment to our Constitution, reading:

'Such measure shall be in operation on and after the thirtieth day after the election at which it is approved.' Laws 1911, p. 139.

The language of the prohibition law above quoted, postponing its going into full force and effect until the 1st day of January, 1916, read in the light of this constitutional provision, it is insisted, means that the law became effective immediately upon its passage by the people in so far as by its terms it superseded existing laws, though it would not become effective in its prohibition of the liquor traffic in the state until the 1st day of January, 1916. It occurs to us that such might be an argument of some force in support of a contention that all of the provisions of the prohibition law went into force on the thirtieth day after it was voted upon by the people, and that therefore the provision postponing its going into force and effect until January 1, 1916, is void. But this, counsel is careful not to make as their contention. We are therefore not presented here with the question of the people's power to postpone the going into effect of an initiative measure, but with the question of what the people intended by the provision in this law postponing its going into force and effect until the 1st day of January, 1916. Now there are no express words of repeal in this law, nor are there any express words touching its effect upon any existing law. Whatever it accomplishes in this respect is by implication only. Suppose there were express words in the law repealing all laws inconsistent therewith. Clearly in such case the force and effect of existing laws would be impaired to as great an extent as by the implied effect of this law.

The rule seems to be well settled, without exception, that an express repealing clause in a statute does not have any force prior in time to that of other provisions thereof, in the absence of clear expression therein to the contrary. In the early case of Spaulding v. Alford, 1 Pick. (Mass.) 33, 35, Justice Wilde, speaking for the court touching the effect of a repealing clause, where the going into effect of the act involved was postponed to a future date, said:

'All matters and clauses in the former act 'which are contrary to the provisions of this act' are repealed. This act passed in February, 1819; and the plaintiff's counsel contend that the repealing clause took effect immediately, so that the plaintiff might lawfully practice in the interval between February and July, and would not come within the provisions of either act. There is, however, nothing inconsistent or contradictory in allowing the first act to operate till July, 1819, as to the licenses to practitioners.'

In McArthur v. Franklin, 16 Ohio St. 193, 203, the court disposed of the question similarly presented by the following observations:

'The point made is that the new act took effect immediately on its passage, so as to repeal the section which it was designed to amend, but that its operation for all other purposes was postponed to the 1st day of May following. The husband of the plaintiff died, it is said, between the 27th of March and the 1st of May. Hence it is claimed that the plaintiff has not a right of dower, for the reason that there was no law in force giving dower at the date of her husband's death. The rule upon the question raised is thus stated in Smith's commentaries on the construction of statutes: 'Where the provisions of a revising statute are to take effect at a future period, and the statute contains a clause repealing the former statute upon the same subject, the repealing clause does not take effect until the other provisions of the repealing act come into operation.' Smith's Com. on Stat. Construction, page 902, § 783. We have no doubt this is the correct construction of the act now in question. The effect of the general statute prescribing when laws

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