Frank Holt and Elija L. Hall were accused, tried by a jury, convicted and sentenced in the district court of Lake county, Montana, for the crime of having, on June 22, 1946, at said county, unlawfully sold and supplied a pint of whiskey to a sixteen-year-old boy.
From the judgments of conviction the defendants Holt and Hall appealed to this court.
The majority opinion holds that there is no law on the statute books of the state of Montana that empowers the district court to try or to punish any person for unlawfully selling whiskey to a sixteen-year-old boy.
I cannot and I do not concur in or agree with such holding.
There are two separate criminal actions involved, one against each appellant. The actions were consolidated for trial and tried before the same jury which rendered separate verdicts of guilty.
Each information charges the accused with "the crime of selling or supplying liquor to a minor." The information *Page 489 against the appellant Frank Holt was filed August 20, 1946 and reads:
"In the District Court of the Fourth Judicial District of the State of Montana, in and for the County of Lake, on the 20th day of August, A.D. one thousand nine hundred and forty-six, Frank Holt, late of the County of Lake and State of Montana, is accused by the County Attorney of said County in the name and by the authority of the State of Montana, by this information, of the crime of selling or supplying liquor to a minor committed as follows: The said Frank Holt on the 22nd day of June, A.D. one thousand, nine hundred and forty-six at the County of Lake, in the State of Montana, with force and arms did willfully, wrongfully, and unlawfully supply and sell intoxicating liquor, to-wit: one pint of whiskey, to one James White, a minor sixteen years of age at that time; that the said liquor was delivered to the said James White in the tavern at Ravalli, Montana, operated by the defendant, Frank Holt, by his bartender one Elija L. Hall.
"All of which is contrary to the form, force and effect of the statute in such case made and provided and against the peace and dignity of the State of Montana.
"T.R. Delaney, "County Attorney in and for the County of Lake, State of Montana."
The information filed on August 27, 1946 against the appellant Elija L. Hall charges the same offense and is in the same form.
The informations against Holt and Hall do not mention or refer to any particular statute or to any particular section of the Codes but they sufficiently charge the public offense of unlawfully selling or supplying liquor to a minor according to the facts developed at the trial.
The selling or supplying of intoxicating liquor to a minor is prohibited by three separate statutes, namely: (1) by the Retail Liquor Dealers' License Act, Chapter 84, Laws of 1937, sec. 11, as amended by Chapter 221 of the Session Laws of 1939, at *Page 490 page 596; (2) by the State Liquor Control Act, Chapter 105, Laws of 1933, sec. 56, now section 2815.115, Rev. Codes 1935; and (3) by section 11048.1, Rev. Codes 1935, originally enacted as section 1 of Chapter 122, Laws of 1927, and amended by Chapter 124, Laws of 1941.
The evidence is undisputed that the appellant Frank Holt and his wife were holders of a license issued by the Montana liquor control board authorizing them to sell intoxicating liquor at their tavern in Ravalli, Montana where they employed the appellant Elija L. Hall as bartender.
There is also substantial evidence in the record tending to establish that appellants violated the particular statute having special application to licensees and their employees, being section 11 of the retail liquor dealers' license Act, as amended.
To the informations filed against them the appellants entered pleas of not guilty. Thereby an issue of fact arose on the accusations made, section 11928, Rev. Codes 1935.
Is It a Crime in Montana to Sell Whiskey to a Sixteen YearOld Boy? Is the sale of intoxicating liquor to a youth of such tender years "contrary to the * * * statute in such case made and provided" as charged in the informations? Is such selling "against the peace and dignity of the State of Montana" as charged in the informations?
The answers are found in the provisions of the state liquor control Act of Montana, Ch. 105, Laws 1933, now sections 2815.60 to 2815.163, Rev. Codes 1935, and subsequent Acts of the legislature supplementing and amendatory thereof, including the retail liquor dealers' license Act originally enacted as Chapter 84 of the Session Laws of 1937.
That the retail liquor dealers' license Act merely supplements, dovetails into and is amendatory of the earlier state liquor control Act and that the legislature so intended is clearly shown by the provisions of the retail liquor dealers' license Act, Ch. 84, Laws 1937, and particularly section 1 setting forth a declaration of policy; section 2 defining "board" to mean the Montana liquor control board, "state liquor store" to mean a store established *Page 491 and operated by the Montana liquor control board, "license" to mean a license issued by the Montana liquor control board, and "rules and regulations" to mean rules and regulations made and promulgated by the Montana liquor control board; section 3 empowering the Montana liquor control board to issue licenses to sell liquor at retail; section 5 requiring application for retail liquor licenses to be in writing and to be filed with the Montana liquor control board; section 15 authorizing the Montana liquor control board to collect an excise tax on liquor sold and delivered; section 22 authorizing the Montana liquor control board to promulgate rules and regulations for carrying out the provisions of the Act; sections 23 to 27 authorizing the Montana liquor control board to investigate the operation and conduct of licensees, to entertain and hear complaints and to thereafter take appropriate action thereon; and section 38 making it a misdemeanor to violate any of the provisions of the Act and upon conviction requiring the Montana liquor control board to revoke the dealers' license.
The Act further provides:
"Section 39. * * * This act shall apply to the Montana liquorcontrol board as now composed and existing, and to any board or commission which may hereafter succeed to the above said board.
"Section 40. All acts or parts of acts in conflict hereto are hereby repealed, but this act shall not be construed to repealor amend any provision or section of the state liquor control actof Montana, except in so far as the same is in conflict with thisact." (Emphasis supplied.)
The Act, Ch. 84, Laws 1937, as amended by Chapter 221 of the Session Laws of 1939 at page 596, further provides: "Section 11. No licensee or his or her employee or employees shall sell, deliver, or give away or cause or permit to be sold, delivered or given away any liquor, beer or wine to: 1. Any person underthe age of twenty-one (21) years."
By this special statute the licensee Frank Holt and his employee *Page 492 Elija L. Hall were and are prohibited from selling, delivering or giving away any liquor to any sixteen year old boy.
The state liquor control Act, 2815.132, Rev. Codes, provides: "Section 73. Upon proof of the fact that an offense against this act has been committed by any person in the employ of the occupant of any house, shop, room, or other premises in which the offense is committed, or by any person who is suffered by the occupant, to be or remain in or upon such house, shop, room, or premises or to act in any way for the occupant, the occupant shall prima facie be deemed to be a party to the offense so committed, and shall be liable to the penalties prescribed for the offense as a principal offender, notwithstanding the fact that the offense was committed by a person who is not proved to have committed it under or by the direction of the occupant; but nothing in this section shall relieve the person actually committing the offense from liability therefor."
As a general rule, one person is not liable for the criminal acts of another in which he did not participate either directly or indirectly but there is a class of cases which form an exception to such general rule. "Among the most common cases wherein this exception is noted are those involving a violation of an intoxicating liquor statute. In those cases the almost universal rule is that the owner of a saloon is criminally liable for all violations of the law committed by his agents, although without his knowledge, or even against his express prohibition." 8 R.C.L., Criminal Law, page 66, sec. 17, note 18.
A jury having found the licensee Holt and his bartender Hall guilty of unlawfully selling whiskey to a minor, it is plain that such acts and conduct constitute a violation of section 11 of the retail dealers' licence Act.
What Is the Offense? What offense was committed by the licensee and his employee when they violated section 11 of the retail liquor dealers' license Act, as amended by Chapter 221, Laws of 1939?
The answer is found in section 38 of the retail liquor dealers' license Act which provides: "Section 38. Any person violating *Page 493 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."
Upon conviction of the crime of unlawfully selling intoxicating liquor to a minor as charged in the informations the licensee and his employee were by law "deemed guilty of a misdemeanor and punishable by * * * fine or imprisonment, or both, as provided by law."
What Is the Penalty? What is the penalty "provided by law?" Section 103 of the state liquor control Act, 2815.163, Rev. Codes provides: "Section 103. Anyone violating any of the provisions of this act shall be guilty of a misdemeanor and be subject to punishment not exceeding Five hundred dollars ($500.00) fine, or six (6) months' imprisonment, either or both; except where other penalties or punishment is herein expressly provided."
There is nothing in the retail liquor dealers' license Act that in any wise or manner conflicts with section 103 of the state liquor control Act, supra, and, since the legislature has expressly declared in section 40 of the retail liquor dealers' license Act that such Act "shall not be contrued to repeal or amend any provision or section of the state liquor control act of Montana," it follows that the penalty provided for violating the provisions of section 11 of the retail liquor dealers' license Act as amended is that provided in section 103 of the state liquor control Act above quoted.
Section 10725, Revised Codes of Montana 1935, provides: "Except in cases where a different punishment is prescribed by this code, every offense declared to be a misdemeanor is punishable by imprisonment in a county jail not exceeding six months, or by a fine not exceeding five hundred dollars, or both." This, however, is a general statute while here we have a special statute applying particularly to violations by a licensee and his employee of specific provisions of the state liquor control Act as *Page 494 amended, wherein a somewhat different punishment is prescribed by another provision of the Act, entitled: "An Act to Limit, Regulate and License the Manufacture and Sale of Any and All Liquors or Beverages That May Hereafter be Manufactured, Sold or Dispensed in the State of Montana," namely by section 103 thereof. Section 2815.163, Rev. Codes.
What Court Has Jurisdiction? The 1935 state legislative assembly by the enactment of Chapter 166 of the Session Laws of 1935 amended the state liquor control Act by adding a new section to be known as section 88(a). The 1935 Act further expressly repealed all acts and parts of acts in conflict therewith. The new section so added to the state liquor control Act provides: "Section 88(a). 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." This section is now section 2815.148, Revised Codes of Montana of 1935.
There is nothing in the retail liquor dealers' license Act that is in conflict with the new section 88(a) of the state liquor control Act expressly conferring upon the district courts original jurisdiction in all criminal actions for violations of the provisions of the state liquor control Act and it is by virtue of the authority so conferred by section 88(a) that the district court of Lake county had original jurisdiction herein.
Nevertheless the majority opinion says, "It is not possible to read into the retail liquor dealers' license Act the provisions of section 2815.148, Revised Codes of Montana 1935, which gives the district courts jurisdiction of criminal actions for violation of the provisions of the state liquor control Act." It was the 1935 state legislative assembly that enacted Chapter 166, Session Laws of 1935, and expressly inserted in the state liquor control Act, "A new section to be known as Section 88(a), Chapter 105, Laws of Montana," now section 2815.148, Rev. Codes, supra. It was the 1937 state legislative assembly that enacted the retail *Page 495 liquor dealers' license Act supplementing and amendatory of the state liquor control Act wherein two years before had been inserted the new section 88(a), now section 2815.148, Rev. Codes, expressly giving the district courts original jurisdiction in cases such as this. Such new section is not amended nor repealed by any provision of the retail liquor dealers' license Act nor is it in conflict with any provision of said Act, which Act makes no attempt to define the jurisdiction of the court in criminal actions for violations of any of its provisions. Since the retail liquor dealers' license Act expressly declares that it "shall apply to the Montana liquor control board" and that it "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 the Act, the judges of this court are not permitted to read out of the retail liquor dealers' license Act the provisions of section 2 of Chapter 166, Session Laws of 1935, now section 2815.148, Rev. Codes, so written into said Act by the 1935 legislature. "In the construction of a statute * * * the office of the judge is simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted, or to omit what has been inserted; and where there are several provisions or particulars, such a construction is, if possible, to be adopted as will give effect to all." Section 10519, Rev. Codes 1935. Here the plain duty of this court is to adopt such a construction of the various statutes governing the traffic in liquor in this state as will give effect to all.
Upon their conviction appellants were by law deemed guilty of a misdemeanor under section 38 of the retail liquor dealers' license Act and punishable by fine or imprisonment or both within the maximum limits set and provided in section 103 of the state liquor control Act, sec. 2815.163, Rev. Codes, or section 10725, Rev. Codes. The sentences imposed of six months in jail and fines of $400 each are within the limits prescribed by said section 103 and section 10725, Rev. Codes, supra.
Among the instructions which the trial court gave the jury was its instruction No. 8A given without objection and reading: *Page 496 "Any person who shall sell, give away or dispose of intoxicating liquors to any person under the age of twenty-one (21) years, shall be guilty of a misdemeanor, and for the first offense, be punishable by a fine of not less than two hundred and fifty dollars ($250.00), nor more than five hundred dollars ($500.00) and by imprisonment for not less than six (6) months nor more than one (1) year in the county jail."
The jury's verdict in each case found the accused guilty and left punishment to be fixed by the court hence appellants suffered no prejudice by the giving of instruction No. 8A. However, by offering no other instruction informing the jury of the penalty prescribed by law as punishment for the offense charged and by registering no objection to the giving of the aforesaid instruction, appellants and their counsel by their inaction and silence acquiesced in the trial court's statement of the law on the punishment that could be meted out in case of conviction as set forth in said instruction. Since the sentences and fines imposed are within the maximum provided in the applicable statute, such sentences and judgments were within the jurisdiction of the court and within the limits prescribed by the legislature as the punishment for the offense of which appellants stand convicted.
It is possible that had the trial court not been of the opinion that section 11048.1, Rev. Codes, applied rather than section 2815.163, Rev. Codes, it may not have imposed the maximum jail sentence of six months, but the fact still persists that the trial court did have jurisdiction under the informations filed, the evidence introduced and the law as enacted by the legislature to impose the $400 fine and the six months' jail sentence in each case. There is therefore nothing unlawful about the judgments rendered against the appellants.
Likewise the validity of the judgments is not affected by whether court or counsel thought section 11048.1, Rev. Codes, or some other code section applicable where, as here, the sentences pronounced, the fines imposed and the judgments rendered conform to the law enacted and prescribed by the state legislative *Page 497 assembly as punishment for the offenses of which appellants were accused, tried and convicted. Nor are appellants entitled to immunity merely because the trial judge rendering valid judgments thought another and different statute applicable.
The conviction of appellants was accomplished, not by the judgment of the court but by the verdict of the jury. As was well said by this court in the case of In re Lewis, 51 Mont. 539, 541,154 P. 713, "One of the chief purposes of all legal administration is the prevention of crime, by the due punishment of persons judicially ascertained to have been guilty of crime; and no person whose guilt has been judicially determined is entitled to immunity merely because the trial court having jurisdiction of him and his cause has made a mistake in a correctible matter. We say `correctible matter' advisedly because the imposition of sentence is such a matter." (Citing authorities.)
The majority opinion asserts that section 1 of Chapter 122, Laws of 1927, being section 11048.1, Rev. Codes, as amended by Chapter 124, Laws of 1941, was repealed by implication in 1933 when the state liquor control Act of Montana, Ch. 105, Laws of 1933, became effective. The state liquor control Act contains no repealing clause of any sort or character either special or general and nowhere in the Act can there be found any expressed intention or declaration on the part of the lawmakers of this state to repeal the law which makes it a serious offense cognizable in a district court for anyone to "sell, give away or dispose of intoxicating liquors to a minor." Section 11048.1, Rev. Codes. But, says the majority opinion, the repeal "was by necessary and compelling implication instead of express declaration. The repeal was therefore overlooked by the Code commissioners and this section was given a Code section number and carried into the Codes as section 11048.1 as hereinabove observed."
Not only was the so-called repeal by implication "overlooked" by the code commissioner but it likewise has been "overlooked" for almost fifteen years past by the various legislative assemblies of the state, by the governor, by county attorneys and district *Page 498 judges throughout the state as well as by all the justices serving on the supreme court of this state during such time who have heretofore had occasion to apply or construe the statute which the majority opinion here holds to have been repealed by implication.
In the Gussenhoven Case, 116 Mont. 350, 152 P.2d 876, decided October 7, 1944, this court, with five judges concurring, upheld a judgment of conviction rendered by the district court of Hill county on an information charging the defendant Gussenhoven of the crime of selling intoxicating liquor to a minor. In that case the information filed in the district court charged the defendant with violating the law in April 1943 by selling intoxicating liquor to a named boy under the age of twenty-one years, in violation of section 11048.1 of the Revised Codes of Montana of 1935, as amended by Chapter 124, 1941 Session Laws, contrary to the form, force and effect of the statute. The defendant appeared in person without counsel, waived counsel, admitted receiving a copy of the information, waived the reading of same, waived the time for pleading, and entered a plea of "not guilty." Later a trial was had at which the defendant was represented by counsel. No objections were interposed to the court's instruction and the verdict of the jury found the defendant guilty and left his punishment to the court. The judgment of conviction was imprisonment in the county jail for six months, and also imposed a fine of $250 on the defendant and ordered that in default thereof he serve out the fine in the county jail at the rate of $2 per day. Defendant testified that he had "a hard liquor license" which he obtained in January 1943. On appeal the defendant specified as error (1) the insufficiency of the evidence to support the judgment of conviction, (2) the overruling of his motion for a new trial, and (3) that the punishment was excessive. In a unanimous opinion this court affirmed both the order denying a new trial and the judgment of conviction.
In the Nance case, 120 Mont. 152, 184 P.2d 554, this court, with all five of its members concurring upheld five judgments *Page 499 of conviction rendered by the district court of Yellowstone county on five informations charging the defendant Nance with the crimes of selling intoxicating liquors to minors. The record in that case shows that Nance was the owner and holder of a license issued by the Montana liquor control board. The informations against him refer to no particular statute or section of the Codes but charge a violation by committing the crime of selling intoxicating liquor to persons under the age of 21 years. The offenses charged were clearly violations of section 11 of the retail liquor dealers' license Act, Ch. 84, Laws 1937, as the defendant was a licensee. Following this court's affirmance of the convictions seasoned and able counsel for Nance filed a petition for rehearing supported by exhaustive and carefully prepared briefs analysing and reviewing the decisions and authorities and leaving no stone unturned in their efforts to set aside the judgments of conviction and particularly that portion thereof imposing jail sentences upon their client, but notwithstanding on June 20, 1947, Nance's petition for rehearing was denied.
In 1923 the 18th legislative assembly enacted a special statute, to-wit: Chapter 39 of the Session Laws of 1923, entitled: "An Act Prescribing the Penalty for Unlawfully Giving Away, Selling or Disposing of Intoxicating Liquor to a Minor," Section 1 whereof provides: "Section 1. Any person who shall unlawfully sell, give away or dispose of intoxicating liquors to a minor, shall be guilty of a misdemeanor, and, for the first offense, be punishable by a fine of not less than Two Hundred and Fifty Dollars, nor more than One Thousand Dollars, and by imprisonment for not less than six months nor more than two years in the county jail, and, for the second and subsequent offenses, he shall be guilty of a felony and punishable by a fine of not less than Five Hundred Dollars nor more than Two Thousand Dollars, and by imprisonment in the state penitentiary for not less than one year nor more than two years."
In 1927 the 20th legislative assembly enacted another special statute covering the same subject, being Chapter 122 of the Session Laws of 1927, entitled: "An Act Making it Unlawful to *Page 500 Sell, Give Away, or Dispose of Intoxicating Liquor to a Minor, Prescribing Punishment Therefor, Defining Intoxicating Liquor, and Repealing Chapter 39 of the Acts of the Eighteenth Legislative Assembly of the State of Montana," section 1 whereof, being now section 11048.1, Rev. Codes 1935, provides: "Section 1. Any person who shall sell, give away or dispose of intoxicating liquors to a minor, shall be guilty of a misdemeanor, and for the first offense, be punishable by a fine of not less than Two Hundred and Fifty Dollars, nor more than Five Hundred Dollars and by imprisonment for not less than six months nor more than one year in the county jail, and for the second and subsequent offenses, he shall be guilty of a felony and punishable by a fine of not less than Five Hundred Dollars, nor more than Two Thousand Dollars, and by imprisonment in the state penitentiary for not less than one year, nor more than two years. Nothing herein contained shall prohibit the furnishing of intoxicating liquor to minors upon any physician's prescription where authorized by the laws of the United States nor the furnishing of wine for sacramental purposes."
Section 2 of said Act, being now section 11048.2, Rev. Codes 1935, defines the word "liquor" or the phrase "intoxicating liquor" when "used in this Act, or in any other laws of the State relating to intoxicating liquors," and is the only law now on the statute books of this state defining such word and phrase.
In 1941 the 27th legislative assembly enacted another special statute, Ch. 124, Laws 1941, amending section 11048.1, Rev. Codes, formerly section 1 of Ch. 122, Laws 1927, to read as follows: "Section 11048.1. Penalty for Giving or Selling Intoxicating Liquors to Any Person Under the Age of Twenty-One(21) Years. Any person who shall sell, give away or dispose of intoxicating liquors to any person under the age of twenty-one(21) years, shall be guilty of a misdemeanor, and for the first offense, be punishable by a fine of not less than two hundred and fifty dollars ($250.00), nor more than five hundred dollars ($500.00) and by imprisonment for not less than six (6) months nor more than one (1) year in the county jail, and for the second *Page 501 and subsequent offenses, he shall be guilty of a felony and punishable by a fine of not less than five hundred dollars ($500.00), nor more than two thousand dollars ($2,000.00), and by imprisonment in the state penitentiary for not less than one (1) year, nor more than two (2) years. Nothing herein contained shall prohibit the furnishing of intoxicating liquors to any personunder the age of twenty-one (21) years upon any physician's prescription where authorized by the law nor the furnishing of wine for sacramental purposes."
Thus almost eight years after the enactment by the 23rd legislative assembly of the state liquor control Act, Ch. 105, Laws 1933, which the majority opinion herein holds effected a repeal by implication of Chapter 122, Laws of 1927, supra, did the 27th legislative assembly still consider Chapter 122, Laws of 1927, now section 11048.1, Rev. Codes, to be a valid and subsisting law which by legislative declaration they expressed an intention to amend and as so amended re-enacted as Chapter 124 of the Session Laws of 1941, to which Governor Sam C. Ford on March 11, 1941 affixed his signature of approval, thereby intending to make such Act effective as the law of the land.
Clearly, the above special Acts of the legislatures, the state liquor control Act and the retail liquor dealers' license Act, and supplemental statutes were and are designed to improve existing statutes which go to make up and complete the legislative scheme for controlling and handling the liquor traffic in the state of Montana. Clearly too, the courts must read the state liquor control Act, the retail liquor dealers' license Act and Chapter 124 of the Laws of 1941 together, for Acts in pari materia are always to be construed together. This the majority opinion fails to do and it is clear that it completely overlooks and fails to apply certain well established principles of statutory construction.
Most of these principles were set forth in an able opinion by the learned Justice Galen in the case of State v. Bowker,63 Mont. 1, 205 P. 961, 962, affirming a judgment of conviction *Page 502 of the crime of maintaining a common nuisance where intoxicating liquors were sold, wherein it is said:
"It is argued that the district court is not possessed of original jurisdiction of the offense charged, as it is by statute made a misdemeanor punishable by a fine of not exceeding $500, and by imprisonment in the county jail not exceeding 6 months. In support of this contention, our attention is directed to the general law prescribing the criminal jurisdiction of justice and district courts. Sections 11630 and 11631, R.C.M. 1921. However, section 37 of chapter 143 of the Laws of 1917 (section 11122, R.C.M. 1921) if still in force and effect, especially confers jurisdiction in such cases upon the district court. It provides: `The district court 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.'
* * * * * * "While the rule is recognized that penal statutes must be strictly construed (State v. Cudahy Packing Co., 33 Mont. 179,82 P. 833, 114 Am. St. Rep. 804, 8 Ann. Cas. 717; State v. Aetna Banking Trust Co., 34 Mont. 379, 87 P. 268), yet where the legislative intent is plain, there is no departure from the rule in consequence of the consideration and application of the provisions of more than the one existing enactment on the same subject. It is our duty to reconcile the statutes, and make them operative in accordance with the legislative intent, if at all possible. State ex rel. Evans v. Stewart, 53 Mont. 18,161 P. 309. Every presumption is in favor of the validity of legislative acts, and the obligation rests on the court to so construe them as to make them operative (Thomas v. Smith, 1 Mont. 21); and an act will not be held void for uncertainty, unless it is impossible to ascertain the legislative intent or purpose (State v. Livingston Concrete Building Mfg. Co., 34 Mont. 570,87 P. 980, 9 Ann. Cas. 204). `One of the recognized rules of *Page 503 construction of statutes is that we are to look to the state of the law when the statute was enacted in order to see for what it was intended as a substitute. No single statute should be interpreted wholly by its own words. Upon enactment it becomes a part of, and is to be read in connection with, the whole body of the law. Its interpretation is to be in the light of the general policy of previous legislation and of the long-established principles of law and equity. Every statute which is properly the subject of judicial construction should receive such a construction as will not conflict with general principles and will make it harmonize with the pre-existing body of law.' 25 R.C.L. 1052.
"In the construction of a particular statute, or in the interpretation of any of its provisions, all acts relating to the same subject, or having the same general purpose, should be read in connection with it, as together constituting one law. 36 Cyc. 1147, 1148. In the absence of constitutional limitation, a statute may be amended merely by striking out portions of it and inserting new matter, or adding new provisions. In the case of First State Bank v. Bottineau County Bank, 56 Mont. 363,185 P. 162, 8 A.L.R. 631, this court speaking through Mr. Justice Holloway, said: `A supplemental act is one designed to improve an existing statute, by adding something thereto without changing the original text. McCleary v. Babcock, 169 Ind. 228,82 N.E. 453; Loomis v. Runge, 66 F. 856, 14 C.C.A. 148. Supplemental statutes include every species of amendatory legislation which goes to complete a legislative scheme. Rahway Sav. Inst. v. Rahway, 53 N.J.L. 48, 20 A. 756.'
"Acts in pari materia are always to be construed together. State v. State Board of Equalization, 56 Mont. 413, 185 P. 708, 186 P. 697. It is a universally recognized rule of construction in testing the validity of a statute subject to two constructions, one of which will uphold its validity, while the other will condemn it, that the former will be adopted if it can be done without violence to the fair meaning of the words employed. State v. Kahn, 56 Mont. 108, 182 P. 107. Every reasonable doubt favors the validity of the statute. State v. State Board *Page 504 of Equalization, supra. In construing a statute, the court, must ascertain and carry into effect the intention of the Legislature, if possible; such intention to be gathered from the terms of the statute, considered in the light of surrounding circumstances. State ex rel. Evans v. Stewart, supra. Words of a statutory enactment must be so interpreted as to give them a meaning that will best accord with the subject of the enactment. In re Wisner,36 Mont. 298, 92 P. 958. The law imposes a duty upon the judicial department to pursue the legislative intent so far as possible. Lerch v. Missoula Brick Tile Co., 45 Mont. 314,123 P. 25, Ann. Cas. 1914A, 346; Power v. Board of Co. Com'rs of Choteau Co., 7 Mont. 82, 14 P. 658. The words of the statute are to be given their usual construction and are presumed to be used in their ordinary sense. State ex rel. Gillett v. Cronin,41 Mont. 293, 109 P. 144; [State ex rel.] Anaconda Copper Mining Co. v. District Court, 26 Mont. 396, 68 P. 570, 69 P. 103.
"Repeals by implication are not favored, and it will not be presumed that by a subsequent enactment the Legislature intended to repeal former laws upon the subject not mentioned (Jobb v. Meagher County, 20 Mont. 424, 51 P. 1034), and more especially so in the case before us where the existing law appears to have been under consideration to the extent of direct reference thereto, both in the title and in the repealing clause. Even though it be possible to give the construction of chapters 143 and 9 contended for by the defendant, this court is not justified in so doing, as it would thereby defeat the manifest object for the enactment of chapter 9. Wilkinson v. La Combe, 59 Mont. 518,197 P. 836. As indicating the intention to clothe the district court with exclusive jurisdiction in the enforcement of prohibition laws, it is to be noticed that as to property, jurisdiction is also especially conferred on it, in an action in rem, by sections 7 and 8 of chapter 143 of the Laws of 1917, and this court has upheld the jurisdiction so granted. State ex rel. Prato v. District Court, 55 Mont. 560, 179 P. 497; State v. Kelly, 57 Mont. 123, 187 P. 637. * * * *Page 505
"The legislative intent appears to have been to make the provisions of the Act of 1921 supplemental to the unrepealed provisions of the Act of 1917, and, this being true, clearly jurisdiction in this case is vested in the district court exclusively."
In the early case of Jobb v. County of Meagher, 20 Mont. 424,433, 51 P. 1034, 1037, this court said:
"`Repeals by implication are not favored, and there is certainly much room for both of these statutes to operate without conflict.' Brown v. McCormick, 28 Mich. 215. If it be possible to reconcile two acts, there will be no repeal by implication. McCool v. Smith, 1 Black, 459 [17 L. Ed. 218].
"Mr. Sutherland, in section 152 of his valuable treatise on Statutory Construction, declares the rule: `It is not enough to justify the inference of repeal that the later law is different. It must be contrary to the prior law. It is not sufficient that the subsequent statute covers some or even all the cases provided for by the former, for it may be merely affirmative, accumulative, or auxiliary. There must be positive repugnancy, and even then the old law is repealed by implication only to the extent of the repugnancy. If, by fair and reasonable interpretation, acts which are seemingly incompatible or contradictory may be enforced and made to operate in harmony and without absurdity, both will be upheld, and the later one will not be regarded as repealing the others by construction or intendment. As laws are presumed to be passed with deliberation and with a full knowledge of all existing ones on the same subject, it is but reasonable to conclude that the legislature, in passing a statute, did not intend to interfere with or abrogate any former law relating to the same matter, unless the repugnancy between the two is irreconcilable.'" (Citing authorities.)
In State v. Schnell, 107 Mont. 579, 584, 88 P.2d 19, 21, 121 A.L.R. 1082 this court said: "Repeals by implication are not favored. State ex rel. Charette v. District Court, 107 Mont. 489,86 P.2d 750. There is no irreconcilable conflict between the two, which is the criterion by which to determine whether there is an implied repeal. State ex rel. Esgar v. District *Page 506 Court, 56 Mont. 464, 185 P. 157. We hold that the two Acts must be read together."
In the most recent case of State of Montana ex rel. Montana State Aeronautics Commission et al. v. Board of Examiners of the State of Montana Mont., 194 P.2d 633, this court quoted with approval from 50 Am. Jur., pp. 566, 567, to the effect that, "it is a canon of statutory construction that a later statute general in its terms and not expressly repealing a prior special or specific statute, will be considered as not intended to affect the special or specific provisions of the earlier statute, unless the intention to effect the repeal is clearly manifested or unavoidably implied by the irreconcilability of the continued operation of both, or unless there is something in the general law or in the course of legislation upon its subject matter that makes it manifest that the legislature contemplated and intended a repeal."
No changes have been effected in the statutes of this state relative to the sale of intoxicating liquor to minors since this court's decisions in the Gussenhoven and Nance cases, supra, yet a majority of the court now holds that the state of Montana has no law on its statute books that clothes the district courts of this state with any original authority or jurisdiction to inquire into the guilt or innocence of any retail liquor dealer, licensed by the state liquor control board charged with the crime of unlawfully selling intoxicating liquors to minors.
If, as the majority holds, section 11048.1 of the Penal Codes of Montana of 1935, as amended by Chapter 124 of the Session Laws of 1941, was repealed by implication on December 5, 1933, being the effective date of Chapter 105 of the Session Laws of 1933, then this court should have so said and held eleven years later (October 7, 1944) in the Gussenhoven case, supra, and fourteen years later (May 16, 1947) in the Nance case, supra.
If the law is as stated in the majority opinion, both cases were wrongfully decided and Gussenhoven and Nance were wrongfully tried, convicted and sentenced in the district court and the fines and jail sentences imposed upon them were null and *Page 507 void. This court, notwithstanding, on appeal gave its judicial blessing to the wrongful imprisonment of these men.
The majority opinion herein holds that it makes a vast amount of difference as to the standing of the person who sells and supplies intoxicating liquors to minors. If the offender be a licensed dealer or his bartender then the offense is not so great nor the liquor supplied so potent and the offender may be taken before a justice of the peace who alone has jurisdiction of the offense for, according to the majority, it is only when the offender has no license thus falling into the "bootlegger" class that the district judge becomes vested with jurisdiction of the offense in the first instance or clothed with any power to act in the premises.
In the case at bar complaint was first made in the justice court and later informations filed in the district court after which said district court dared lay its heavy hand upon the licensed dealer and his bartender. This, the majority holds, the district court had no jurisdiction to do and to right the wrong it now orders the actions dismissed. Thus do appellants go forth unwhipped of justice.
It appears to me that such holding is not only contrary to our statutes but that it is also contrary to good morals. The chief asset of this state is its young people. Such asset must be protected against those who would destroy it. It was to provide such necessary protection that the legislature enacted the statutes which the majority of this court now strikes from the laws of the state by holding that they were repealed byimplication some fourteen years ago. Until the state legislative assembly sees fit by express declaration to strike these wholesome laws from the Codes, it is the duty of all good citizens of the state as well as the members of this court to uphold them.
The record before us shows that appellants had a fair trial in a proper tribunal wherein by verdicts of a jury they were convicted of the crimes of which they were accused. The judgments of conviction were proper and should be affirmed. *Page 508
Truly, in the language of the majority, does its opinion "usher in what in some quarters was viewed as the `day of jubilee.'"
But —
"Ill fares the land, to hastening ills a prey,
Where wealth accumulates, and men decay."
Rehearing denied June 10, 1948.