State v. Holt

I concur in the opinion of Mr. Justice Gibson so far as it holds that section 11048.1 was repealed by implication by the Liquor Control Act found in sections 2815.60 to 2815.163, Revised Codes of Montana of 1935, and that the purported amendment of section 11048.1 by Chapter 124 of the Laws of 1941 is invalid. I do not agree with the conclusion that the district court has no jurisdiction over this type of case.

I think that section 11 of Chapter 84 of the Laws of 1937 is but an amendment of section 2815.115 of the Revised Codes of 1935 and that this is the law applicable to these cases.

I think the informations were sufficient to constitute a violation of section 11 of Chapter 84 of the Laws of 1937. They charge the sale of intoxicating liquor to minors and in consequence are sufficient to charge the offense defined in section 11 of Chapter 84. It is sufficient that the information alleges facts bringing the case within section 11 and it is not necessary that the information specifically point out the number of the statute under which the prosecution is based. However, since the Court took the view that it could impose no fine less than $250 and not less than six months' imprisonment, I think the case must be remanded for a new sentence because under Chapter 84 the sentence that may be imposed is governed by section 38 reading: "Any person violating any of the provisions of this act, shall upon conviction thereof, be deemed guilty of a misdemeanor and punishable by such fine or imprisonment, or both, as provided by law, except as is herein otherwise provided. If any such licensee is convicted of any offense under this act his license shall be immediately revoked."

Under that section the proper sentence is governed by section 2815.163 or 10725, Revised Codes 1935, the latter reading: "Except in cases where a different punishment is prescribed by this code, every offense declared to be a misdemeanor is *Page 484 punishable by imprisonment in a county jail not exceeding six months, or by a fine not exceeding five hundred dollars, or both."

In consequence I think the cause should be remanded with directions for the court to change the sentence imposed should it see fit to do so.

On the question of the jurisdiction of the court, it is my view that section 2815.148 controls. That section provides: "The district courts shall have original jurisdiction in all criminal actions for violations of the provisions of this act, and in all civil actions for the recovery or enforcement of fines, penalties and forfeitures provided for in this act, and all such actions, both criminal and civil, shall be instituted, prosecuted and tried in the district court."

By Chapter 84 in the declaration of policy the legislature said: "It is hereby declared as the policy of the state that it is necessary to further regulate and control the sale and distribution within the state of alcoholic beverages, and to eliminate certain illegal traffic in liquor now existing, and to insure the entire control of the sale of liquor in the Montana liquor control board, it is advisable and necessary, in addition to the operation of the state liquor stores now provided by law, that the said board be empowered and authorized to grant licenses to persons qualified under this act, to sell liquor purchased by them at state liquor stores at retail posted price in accordance with this act and under rules and regulations promulgated by the said board, and under its strict supervision and control, and to provide severe penalty for the sale of liquor except by and in state liquor stores and by persons licensed under this act. The restrictions, regulations and provisions contained in this act are enacted by the legislature for the protection, health, welfare and safety of the people of the state." Hence I think Chapter 84 is legislation supplementary to and amendatory of the Liquor Control Act, section 2815.60 et seq., and that the two should be read together as one Act.

In 50 Am. Jur., Statutes, pages 345-347, it is said: "Under *Page 485 the rule of statutory construction of statutes in pari materia, statutes are not to be considered as isolated fragments of law, but as a whole, or as parts of a great, connected, homogeneous system, or a single and complete statutory arrangement. Such statutes are considered as if they constituted but one act, so that sections of one act may be considered as though they were parts of the other act, as far as this can reasonably be done. Indeed, as a general rule, where legislation dealing with a particular subject consists of a system of related general provisions indicative of a settled policy, new enactments of a fragmentary nature on that subject are to be taken as intended to fit into the existing system and to be carried into effect conformably to it, and they should be so construed as to harmonize the general tenor or purport of the system and make the scheme consistent in all its parts and uniform in its operation, unless a different purpose is shown plainly or with irresistible clearness. It will be assumed or presumed, in the absence of words specifically indicating the contrary, that the legislature did not intend to innovate on, unsettle, disregard, alter or violate a general statute or system of statutory provisions the entire subject matter of which is not directly or necessarily involved in the act."

And again at pages 481 and 482, it is said: "Strictly speaking, an amendatory act is not regarded as an independent statute. Of course, the statute in its old form is superseded by the statute in its amended form, the amended section of the statute taking the place of the original section, for all intents and purposes as if the amendment had always been there. The amendment should be considered as if embodied in the whole statute of which it has become a part. Unless a contrary intent is clearly indicated, the amended statute is regarded as if the original statute had been repealed, and the whole statute re-enacted with the amendment."

The applicable rule is stated in Sutherland on Statutory Construction, section 1935, as follows: "The original section as amended and the unaltered sections of the act, code, or compilation *Page 486 of which it is a part, relating to the same subject matter, are to be read together. The act or code as amended should be construed as to future events as if it had been originally enacted in that form. Provisions in the un-amended sections applicable to the original section to which it was applicable are applicable to the section as amended in so far as they are consistent." Pp. 431, 432.

Many cases are there cited in support of the text. The one nearest to this in point of facts is that of State v. Montgomery,94 W. Va. 153, 117 S.E. 870, 872, where the court said: "Logically, the first assignment of error which should be considered is whether the justice had jurisdiction to try on the warrant; for, if the justice did not have jurisdiction, and could not try the case, the circuit court had no jurisdiction upon appeal. Richmond v. Henderson, 48 W. Va. 389, 37 S.E. 653. Under section 32 of Chapter 32A of the Code, which is the chapter on intoxicating liquors, a justice of the peace is given concurrent jurisdiction with the circuit or other courts having criminal jurisdiction, for the trial of first offenses arising under the act. The state may elect to have trial before the justice in such cases, or require only a preliminary hearing to determine whether the accused shall be held to the grand jury; and the prisoner, in case the state elects to try, is entitled to a jury. This provision was contained in section 32, c. 7, of the Acts of 1915; but it is pointed out that the offense charged in the warrant, namely, unlawfully having in his possession a quantity of moonshine liquor contrary to law, was not an offense until it was made so in 1921, and therefore the justice did not have jurisdiction under said section 32. The jurisdiction of a justice to try and determine criminal offenses is purely statutory. But does not the offense created by the act of 1921, which is an amendment to the act of 1915, bring it within the jurisdiction of a justice? Where there has been an amendment and re-enactment of a former statute, the rule of construction is that the amendment becomes a part of the original act in respect to things thereafter done, as if it had been a part of *Page 487 the original act. The amendment becomes a part of the original statute, and of course must be read in relation to all of the provisions of the original act. Where certain amendments to an act gave justices of the peace concurrent jurisdiction with the common pleas court, `under the restrictions and limitations herein provided,' this was held to refer to the restrictions and limitations provided in the original act as it stood after all the amendments made thereto were introduced into the same, in their proper places. Endlich on Interpretation of Statutes, sec. 294; State v. Vendetta, 86 W. Va. 186, 191, 103 S.E. 53. We think the statute and its amendment, properly construed, give to a justice jurisdiction to try the offense charged in the warrant."

The rule is expressed in 59 C.J. 1094, as follows: "Amendments are to be construed together with the original act to which they relate as constituting one law, and also together with other statutes on the same subject, as part of a coherent system of legislation; and this rule is applicable where a later independent statute amends a former statute by implication."

The fact that section 38 of Chapter 84, Laws of 1937, fixes a penalty within the jurisdiction of the justice court does not affect the question under consideration because that was likewise true of the Liquor Control Act originally. See section 2815.163.

Hence I think that when the legislature conferred jurisdiction upon district courts in all criminal actions "for violations of the provisions of this act" referring to the State Liquor Control Act of Montana, it would follow that such jurisdiction is conferred upon the district court for violations of that Act as amended thereafter, where as here there is nothing to indicate a contrary intent. This intention also seems to me to be clear from section 40 of Chapter 84, which reads: "All acts and parts of acts in conflict hereto are hereby repealed, but this act shall not be construed to repeal or amend any provision or section of the state liquor control act of Montana, except in so far as the same is in conflict with this act." *Page 488

There is nothing in Chapter 84 in conflict with section 2815.148 and hence I think the legislature intended by section 40 to have section 2815.148 apply to all violations of Chapter 84 which, as above indicated, constitutes amendments or additions to the Liquor Control Act.

My conclusion is that the judgment of conviction should be sustained but that the cause should be remanded to the district court for the imposition of a different sentence should the court see fit to impose a different sentence. I think this should be done for the reason that the court was of the opinion that because of Chapter 124 of the Laws of 1941, it could not impose a lesser penalty than it did impose but, as above indicated, the court has the right to impose a lesser punishment if it sees fit and for that reason I think the cause should be remanded solely for the purpose of authorizing the trial court to impose a new and different sentence if the court sees fit to do so.