State v. Taplin

• Decision Date: 29 November 1968
• Parties: STATE of Maine v. David B. TAPLIN.
• Court: Maine Supreme Court

Page 919

247 A.2d 919

STATE of Maine v. David B. TAPLIN.

Supreme Judicial Court of Maine.

Nov. 29, 1968.

Daniel G. Lilley, Asst. Atty. Gen., Augusta, for plaintiff.

George S. Hutchins, Jr., York, for defendant.

Before WILLIAMSON, C. J., and WEBBER, TAPLEY, MARDEN, DUFRESNE and WEATHERBEE, JJ.

DUFRESNE, Justice.

David B. Taplin (defendant) was indicted by the Grand Jury at the May term, 1968, of the Superior Court in the County of York in this State for unlawfully selling on March 5, 1968 a narcotic drug, to wit, 'Cannabis Sativa L.' or 'Cannabis Seed' (Docket No. 6103) and for unlawfully possessing such drug or having it under his control on March 7, 1968 (Docket No. 6105), both prosecutions purportedly being under 22 M.R.S.A. § 2362.

In each case Taplin, in preliminary objection to arraignment and trial upon these indictments charging felonies under the stated statute, by proper written motions, sought 'appropriate relief' under Rule 12(a) of the Maine Rules of Criminal Procedure requesting the Court to accept a plea of guilty to the charge of selling marijuana, a misdemeanor, under 22 M.R.S.A. § 2206, as amended by P.L.1967, c. 390, § 1.

In support of the motions, defendant contends that the felony statute under which these indictments were found had been repealed by implication and that the only 'viable' criminal statute respecting Cannabis sativa L. or marijuana was the 1967 misdemeanor act.

The motions were denied. The pleas of guilty to a misdemeanor charge were refused. Aggrieved by these interlocutory rulings, the defendant appealed and moved to report the legal question of statutory interpretation to this Court for solution. The Court below granted the motions upon the stipulation by the State and the defendant that 'if the Law Court determines that Title 22 M.R.S.A. Section 2362 is repealed by implication by Title 22 M.R.S.A. Section 2206 (as amended by c. 390, s. 1), judgment of guilty shall be entered for the State and against the Defendant to the misdemeanor; and (the case) remanded to the Superior Court for sentence. Conversely, in the event that the Law Court determines that sale (or possession) of marijuana is a felony violation under Title 22 M.R.S.A. Section 2362, the Defendant will stand trial on all viable felony charges consistent with the Law Court decision.' Both cases were consolidated for purposes of hearing on appeal and are properly before us on report under Rule 37A, M.R.Cr.P.

The statutory sections presently involved read as follows:

The felony.

Title 22, Ch. 557, M.R.S.A. (1964)

' § 2362, Uses of narcotic drugs

It shall be unlawful for any person to manufacture, possess, have under his control, sell, prescribe, administer, dispense or compound any narcotic drug, except as authorized in this chapter.'

' § 2380. Violation of provisions

Whoever violates any provision of this chapter shall upon conviction be punished by a fine of not more than $1,000 and by imprisonment for not less than 2 nor more than 8 years. For a 2nd offense, or if, in case of a first conviction of violation of any provision of this chapter, the offender shall previously have been convicted of any violation of the laws of the United States or of any other state, territory or district relating to narcotic drugs or marihuana, the offender shall be punished by a fine of not more than $2,000 and by imprisonment for not less than 5 nor more than 15 years. For a 3rd or subsequent offense, or if the offender shall previously have been convicted 2 or more times in the aggregate of any violation of the laws of the United States or of any other state, territory or district relating to narcotic drugs or marihuana, the offender shall be punished by a fine of not more than $5,000 and by imprisonment for not less than 10 nor more than 20 years.

Except in the case of conviction for a first offense for violation of this chapter, the imposition or execution of sentence shall not be suspended. Parole shall not be granted until the minimum imprisonment herein provided for the offense shall have been served.'

The misdemeanor.

Title 22, Ch. 551, M.R.S.A. (1964)

' § 2206. Sale of opium

No person, except a registered apothecary or a physician of regular standing in his profession, shall furnish, sell or keep for sale any opium, morphine, laudanum or preparations containing opium, morphine or derivative of opium. Whoever violates this section shall be punished by a fine of not less than $50 nor more than $1,000, for each offense, to be recovered by complaint or indictment.'

Public Laws, 1967, Chapter 390

'Sec. 1. R.S., T. 22, § 2206, amended. The first sentence of section 2206 of Title 22 of the Revised Statutes is amended to read as follows:

No person, except a registered apothecary, wholesaler, registered hospital pharmacy or a physician of regular standing in his profession, shall furnish, sell or keep for sale any opium, morphine, laudanum, marijuana or preparations containing opium, morphine, marijuana or derivative of opium.' (Italicized words were added by the amendment).

The issue submitted to us on this report requires for solution a thorough analysis of the legislature history of both sections. In order to ascertain terminal legislative will, current competing statutes should be examined in the light of their respective antecedent enactments in their chronological sequence. Such studies do aid in the construction of coexisting statutes and significantly help to solve the recurrent issue whether two distinct legislative enactments can operate harmoniously as a whole or are so incongruous that a court must declare that one abrogates the other. Such an examination at times will readily disclose that certain laws, seemingly in full force, have lost part or all of their legal vitality by repeal or amendment.

Before launching such a review, we must bear in mind certain well established principles of statutory construction respecting repeals by implication. Our Court has, in State v. London, 1960, 156 Me. 123, 162 A.2d 150, spelled out many of these well recognized rules of statutory interpretation and cited the authorities in support thereof. Thus, we observe that repeals by implication are not favored. Inman v. Willinski, 1949, 144 Me. 116, 65 A.2d 1, 7 A.L.R.2d 1390. The Legislature will not be presumed to have intended a repeal. Inhabitants of Eden v. Inhabitants of Southwest Harbor, 1911, 108 Me. 489, 81 A. 1003; Harris' Case, 1924, 124 Me. 68, 126 A. 166. However, implied repeals do exist and must be given effect based as they are on the rationale that 'the legislature cannot be supposed to have intended that there should be two distinct enactments embracing the same subject matter in force at the same time, and that the new statute, being the most recent expression of the legislative will, must be deemed a substitute for previous enactments, and the only one which is to be regarded as having the force of law.' Knight v. Aroostook Railroad, 67 Me. 291, 293. Nevertheless, implied repeals, provided no contrary legislative intent appears, will be restricted in scope to the extent of the inconsistency or conflict. State v. Bryce, 1968, Me., 243 A.2d 726.

We quote from London, supra: '(R)epeals by implication exist when a later statute covers the whole subject matter of an earlier statute, or when a later statute is repugnant to or inconsistent with an earlier statute.

'Where a later statute does not cover the entire field of the earlier statute but is inconsistent or repugnant to some of its provisions, a repeal by implication takes place to the extent of the conflict.

'Where a later statute imposes a different penalty, either less or more, for the same or substantially the same offense, the later statute is ordinarily held to repeal the earlier one.'

It is for the court to determine legislative intent, which must prevail once that intention has been judicially ascertained. Lyon v. Lyon, 1896, 88 Me. 395, 34 A. 180. Legislative purpose and intent when obvious must be carried out irrespective of rules of interpretation, as the intention of the law maker is the law. Steele v. Smalley, 1945, 141 Me. 355, 44 A.2d 213; Emple Knitting Mills, Aplt. v. City of Bangor, 1959, 155 Me. 270, 153 A.2d 118.

We now turn our attention to the legislative history of these two reference criminal statutes to solve the problem before us, but, in order to present a clear display of the competing legislative purposes underlining the statutory fabric, it becomes necessary to probe deeply into the Legislature's past law-knitting.

We do observe that the misdemeanor statute, so-called, (22 M.R.S.A. § 2206) was first enacted as Chapter 124 of the Public Laws of 1887, and read as follows:

'Sect. 1. No person except a registered apothecary, or a physician of regular standing in his profession, shall furnish, sell or keep for sale any opium, morphine or laudanum.

'Sect. 2. Any person violating this act, shall be punished by a fine of not less than five nor mor than fifty dollars for each offense, to be recovered by complaint or indictment.'

Prior to the 1887 laws making it a crime for any person other than a registered apothecary, or a physician of regular standing in his profession, to furnish, sell or keep for sale any opium, morphine or laudanum, the Legislature had enacted several laws concerning the business of an apothecary or druggist. Public Laws, 1857, c. 44, first regulated the sale of poisons by requiring the apothecary or druggist to properly label the parcel sold and record the sale. A registration law with a board of commissioners of pharmacy having powers of examination and certification was set up by P.L., 1877, c. 204. This act was amended by P.L., 1885, c. 379, and later amended by P.L., 1891, c. 105, P.L., 1893, c. 290, and P.L., 1897, c. 324. All this legislation, prior to 1899, except the reference 1887 act respecting opium, morphine and laudanum and the requirement of labeling and recording in sales of poisons,...