State v. Perrigoue
| Decision Date | 07 December 1972 |
| Docket Number | No. 42473,42473 |
| Citation | 81 Wn.2d 640,503 P.2d 1063 |
| Parties | The STATE of Washington, Respondent, v. Larry PERRIGOUE, Appellant. |
| Court | Washington Supreme Court |
Mark T. Patterson, Everett, for appellant.
Robert E. Schillberg, Pros. Atty., Arnold M. Young, Everett, for respondent.
The appellant was charged by information with the crime of grand larceny by color and aid of a check. His demurrer to the information was overruled. When he elected to stand on the demurrer, judgment was entered against him and he was given a maximum sentence of 15 years. The sentence was deferred on condition the defendant remain on probation for a period of 2 years.
Error is assigned to the overruling of the demurrer, by which the appellant raised a question concerning the constitutionality of RCW 9.54.090. It is the appellant's contention that this statute violates the equal protection clause of the fourteenth amendment to the United States Constitution, and article 1, section 12 of the Washington State Constitution, the special privileges and immunities clause. These provisions have been held to be substantially identical in their mandate to the state, prohibiting invidious discrimination in the enactment and enforcement of laws. Olsen v. Delmore, 48 Wash.2d 545, 295 P.2d 324 (1956).
RCW 9.54.010 provides, Inter alia:
Every person who, with intent to deprive or defraud the owner thereof--
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(2) Shall obtain from the owner or another the possession of or title to any property, real or personal, by color or aid of any order for the payment or delivery of property or money or any check or draft, knowing that the maker or drawer of such order, check or draft was not authorized or entitled to make or draw the same, or by color or aid of any fraudulent or false representation personation or pretense or by any false token or writing or by any trick, device, bunco game or fortune-telling . . .
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Steals such property and shall be guilty of larceny.
RCW 9.54.090 provides:
Every person who steals or unlawfully obtains, appropriates, brings into this state, buys, sells, receives, conceals, or withholds in any manner specified in RCW 9.54.010--
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(5) Property of the value of more than twenty-five dollars if obtained by color or aid of any order for the payment or delivery of property or money or any check or draft, knowing that the maker or drawer of such order, check, or draft was not authorized or entitled to make or draw the same; or
(6) Property of the value of more than seventy-five dollars, in any manner whatever; shall be guilty of grand larceny and be punished by imprisonment in the state penitentiary for not more than fifteen years.
The appellant does not question the authority of the legislature to make a distinction between larceny by check and the other acts which constitute larceny, as defined in RCW 9.54.010. He does, however, maintain that there is no difference between a transaction involving a check and a transaction involving the use of a credit card, and that since the obtaining of property by fraudulent use of a credit card is made only a misdemeanor, under RCW 9.26A.050, 1 if the value of the property obtained is less than $75, the legislature has treated members of the same class differently and thus violated the constitutional provisions prohibiting invidious discrimination.
It is the established rule of law in this state that an enactment is presumptively valid, and the burden is upon the challenger to prove that the questioned classification does not rest upon a reasonable basis. Boeing Co. v. State, 74 Wash.2d 82, 442 P.2d 970 (1968).
For the principles which must guide the court in determining whether an act has been shown to deny equal protection of the laws, the appellant cites Rinaldi v. Yeager, 384 U.S. 305, 308--309, 86 S.Ct. 1497, 16 L.Ed.2d 577 (1966), quoting the following:
The Equal Protection Clause requires more of a state law than nondiscriminatory application within the class it establishes. McLaughlin v. Florida, 379 U.S. 184, 189--190, 85 S.Ct. 283, 286--287, 13 L.Ed.2d 222. It also imposes a requirement of some rationality in the nature of the class singled out. To be sure, the constitutional demand is not a demand that a statute necessarily apply equally to all persons. 'The Constitution does not require things which are different in fact . . . to be treated in law as though they were the same.' Tigner v. Texas, 310 U.S. 141, 147, 60 S.Ct. 879, 882, 84 L.Ed. 1124. Hence, legislation may impose special burdens upon defined classes in order to achieve permissible ends. But the Equal Protection Clause does require that, in defining a class subject to legislation, the distinctions that are drawn have 'some relevance to the purpose for which the classification is made.' Baxstrom v. Herold, 383 U.S. 107, 111, 86 S.Ct. 760, 15 L.Ed.2d 620; Carrington v. Rash, 380 U.S. 89, 93, 85 S.Ct. 775, 778, 13 L.Ed.2d 675; Louisville Gas Co. v. Coleman, 277 U.S. 32, 37, 48 S.Ct. 423, 425, 72 L.Ed. 770; Royster Guano Co. v. Virginia, 253 U.S. 412, 415, 40 S.Ct. 560, 561--562, 64 L.Ed. 989.
This court has recognized these principles and applied them. State ex rel. O'Brien v. Towne, 64 Wash.2d 581, 392 P.2d 818 (1964); State v. Persinger, 62 Wash.2d 362, 382 P.2d 497 (1963); Clark v. Dwyer, 56 Wash.2d 425, 353 P.2d 941 (1960).
The questions then are, Is there a substantial difference between a check and credit card? and Does that difference bear a reasonable relation to the legislative purpose in imposing a more severe punishment upon the one class of offenders than upon the other, where the value of the property obtained exceeds $25 but is less than $75?
It is the theory of the appellant that, inasmuch as a person who uses a check to purchase a $50 radio receives no more for his fraud than a person who uses a credit card in making the purchase, there exists no valid distinction between the two transactions which would justify the imposition of a more severe punishment in one case than in the other. He cites no authority for this proposition, and we know of no case which has held that the legislature, in defining crimes involving the taking or receiving of property, can distinguish between such offenses only on the basis of the amount taken or received. The value of the stolen property is not the only factor which affects the social evil connected with a given act. The means by which the larceny is accomplished is a circumstance with which the legislature also is legitimately concerned.
That there is in fact a difference between a check and a credit card cannot be doubted. A check is a draft drawn upon a bank and payable on demand, signed by the maker or drawer, containing an unconditional promise to pay a sum certain in money to the order of the payee. RCW 62A.3--104. See State v. Haynes, 71 Wash.2d 136, 426 P.2d 851 (1967).
A credit card, on the other hand, is a mere token or indicia that the person named on it has credit with the company which issued it.
'A credit card in nothing more than an indication to sellers of commodities that the person who has received a credit card from the issuer thereof has a satisfactory credit rating and that, if credit is extended, the issuer of the credit card will pay (or see to it that the seller of the commodify receives payment) for the merchandise delivered.' Williams v. United States, 192 F.Supp. 97, 99 (D.C.Cal.).
Tillman v. State, 13 Md.App. 570, 284 A.2d 259 (1971).
A credit sales slip, issued in reliance on a credit card, is not a 'security' within the Stolen Property Act provisions (18 U.S.C.A. §§ 2311, 2314) defining the term 'securities' and making transportation of forged 'securities' in interstate commerce unlawful. United States v. Jones, 182 F.Supp. 146, 150 (W.D.Mo.1960). Having noted that a credit sales slip is nothing more than an 'evidence of sale' and does not show on its face a general liability of any person, the Federal court in that case said:
No authority is cited by the parties, and independent research has failed to disclose any document held to be a 'security' within the ambit of 2311, supra, which has not in some general or specific manner called for the payment, delivery or promise to pay or deliver money or property to the holder thereof, and as to...
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