State v. Pulec

• Court: Kansas Supreme Court
• Writing for the Court: WEDELL; WEDELL
• Citation: State v. Pulec, 246 P.2d 270, 173 Kan. 261 (Kan. 1952)
• Decision Date: 03 July 1952
• Docket Number: No. 38636,38636
• Parties: STATE v. PUBLIC.

Page 270

246 P.2d 270

173 Kan. 261

STATE v. PUBLIC.

No. 38636.

Supreme Court of Kansas.

July 3, 1952.

Rehearing Denied July 25, 1952.

Syllabus by the Court.

1. Statutes in pari materia must be construed together if necessary in order to determine legislative intent.

2. G.S.1949, 41-2708 and G.S.1949, 41-2711 examined, construed and held: Possession of alcholholic liquor on premises by a person licensed to engage in the retail sale of cereal malt beverages thereon constitutes a misdemeanor on the part of the licensee as well as a ground for revocation of the license to sell cereal malt beverages.

3. The information in a criminal prosecution examined and held, defendant's motion to quash the information was improperly sustained.

Norbert R. Dreiling, County Atty., of Hays, argued the cause and Harold R. Fatzer, Atty. Gen., was with him on the briefs for appellant.

Hal C. Davis, of Topeka, argued the cause, and E. J. Malone, of Hays, was with him on the briefs for appellee.

WEDELL, Justice.

The state appeals from an order quashing an information in a criminal case.

The defendant, Doris M. Pulec, was charged in two counts, differing only as to dates, with unlawfully having alchoholic liquor in her possession on premises which were licensed in her name for the sale of cereal malt beverages. The prosecution was based on a violation of the twelfth ground, or subdivision (l) of G.S.1949, 41-2708 of the cereal malt beverage law, amended by section 2, chapter 302, Laws 1951, no part of which amendment, however, affects subdivision (l) or is applicable to this action, and on G.S.1949, 41-2711.

G.S.1949, 41-2708, provides:

'The board of county commissioners or the governing body of any city, upon five days' notice to the persons holding such license, shall revoke such license for any one of the following reasons: (a) If a licensee has fraudulently obtained the license by giving false information in the application therefor; (b) if the licensee has violated any of the provisions of this act or any rule or regulation made by the board or the city as the case may be; (c) if the licensee has become ineligible to obtain a license in this act; (d) drunkenness of the person holding such license or permitting any intoxicated person to remain in such place; (e) the sale of cereal malt beverages to those under the age of eighteen years; (f) the nonpayment of any license fees; (g) for permitting any gambling in or upon such premises; (h) for permitting any person to mix drinks with materials purchased in said place of business or brought in for this purpose; (i) for the employment of persons under eighteen years of age in dispensing cereal malt beverages; (j) for the employment of persons who have been adjudged guilty of felony or of any violation of the intoxicating liquor law; (k) for purchasing or displaying a federal retail liquor tax stamp, expiring after June 30, 1937, issued by the United States treasury department, except where issued for industrial, mechanical, scientific, and medicinal purposes. (l) For the sale or possession of or for permitting any person to use or consume upon or in said premises alchoholic liquor as defined by laws of the state of Kansas relating thereto. Within twenty days after the order of the board revoking any license the licensee may appeal to the district court of the county in the manner as now provided by law in appeals from the probate court: Provided, That any appeal taken from an order revoking any such license shall not suspend the order of revocation during the pendency of any such appeal. In case of the revocation of the license of any licensee, no new license shall be issued to such person or any person acting for or on his behalf, for a period of six months thereafter.' (Emphasis supplied.)

G.S.1949, 41-2711 reads:

'Any person violating any of the provisions of this act shall be deemed guilty of a misdemeanor and upon conviction thereof shall be punished by a fine of not more than five hundred dollars, or by imprisonment in the county jail for not more than one year, or by both such fine and imprisonment.'

The sole question presented is whether defendant's possession of alchoholic liquor on premises on which she had a license to sell cereal malt beverages constitutes a criminal offense or only a ground for revocation of her license to sell cereal malt beverages? The district court concluded it was the latter and sustained the motion to quash the criminal charge.

Subdivision (l) of G.S.1949, 41-2708 was added as the twelfth ground to the above revocation statute in 1949, Chapter 245, when the Kansas liquor control act was enacted. Chapter 242, Laws 1949. By the latter act the old prohibitory law pertaining to possession of intoxicating liquor was repealed. G.S.1949, 41-1106.

Defendant (appellee) adopts the views of the district court, which, in substance, were:

Criminal statutes must be strictly construed in favor of a person charged with crime; absent a statute which clearly makes possession of alchoholic liquor under the circumstances alleged a criminal offense there can be no prosecution therefor; the legislative intent to make the act a crime must be ascertainable without conjecture and speculation; having repealed the former prohibitory law the legislature nevertheless intended to prescribe a penalty for acts alleged in the information; the penalty it chose to prescribe was the revocation of defendant's license to sell cereal malt beverages; various acts under the liquor control law expressly are made criminal offenses but the act presently charged is not one of them; the act charged is one of the specific grounds for revocation of defendant's license; it is true G.S.1949, 41-2711 makes it a misdemeanor for a person to violate any of the provisions of the cereal malt beverage act; if, however, a violation of subdivision (l) of G.S.1949, 41-2708 be construed to constitute a...