The sentence and judgment which the defendant challenges on this appeal could only be imposed upon him under the so-called habitual criminal act, — chapter 126, Laws 1927. Hence, the sole question presented for determination in this case is: Did the legislature intend that said chapter 126, Laws 1927, should apply to persons convicted of the crime of engaging in the liquor traffic as a second offense?
It is elementary that the object of all statutory construction is to ascertain and give effect to the true legislative intent. It is the duty of the courts to declare the law as it is and they are never justified under a pretense of construction to encroach upon the legislative function. 26 Am. Eng. Enc. Law, p. 597. In short, it is the duty of the courts to declare and apply the law as the legislature has made it, — that is, *Page 531 to ascertain and give effect to the intention of the lawmakers. In construing statutes the courts are to be guided by certain rules which wisdom and experience have sanctioned. The Paulina v. United States, 7 Cranch, 52, 60, 3 L. ed. 266, 268; Cary v. Curtis, 3 How. 236, 239, 11 L. ed. 576, 578. The purpose of all such rules is to furnish guidance for ascertaining the legislative intent. The primary rule of statutory construction is that the intent of the lawmakers is to be found in the language they have used, and when such language is clear and unambiguous it must be held to mean what it expresses; but where the language is ambiguous and of doubtful import, it becomes the duty of the courts (in any case where the statute is invoked) to ascertain and give effect to the legislative intent and meaning. In short, the judicial function of statutory construction lies wholly within the domain of ambiguity and uncertainty. When a statute is uncertain and ambiguous and the language thereof as a whole leaves doubt as to the legislative intent and purpose, resort may be had to extrinsic aids. The history of the passage of the law may be considered. The reports of committees, the introduction of amendments, petitions presented, testimony given before legislative committees, have all been considered by the United States Supreme Court in construing statutes. Church of the Holy Trinity v. United States, 143 U.S. 457, 36 L. ed. 226, 12 S. Ct. 511; Blake v. National City Bank, 23 Wall. 307, 23 L. ed. 119; Lincoln v. United States, 202 U.S. 484, 50 L. ed. 1117, 26 S. Ct. 728. See also 36 Cyc. 1136, 1138. "It is needful in the construction of all instruments to read them in view of the surrounding facts. To understand their purport and intended application, one should, as far as possible, be placed in a position to see the subject from the maker's standpoint and study his language with that outlook. Statutes are no exception. The court may look to the surrounding circumstances." 2 Lewis's Sutherland, Stat. Constr. 2d ed. pp. 883, 884.
It is conceded that this case is one in which the court is required to exercise the function of construction. The majority opinions themselves bear ample evidence that the language of the statute in question here is not such that it can be said there is no room for construction. The provisions of the act are set out in full in the prevailing opinion. Some reference to the history of the passage is contained in the concurring opinion; but both opinions omit incidents in the history of the *Page 532 enactment which, in my judgment, are of vital importance in ascertaining the legislative intention.
The bill originated in the House of Representatives. House Journal, p. 263. It was received by the Senate on February 27, 1927. Senate Journal, p. 380. After having been placed upon its first and second reading it was referred to the Senate Committee on Judiciary Senate Journal, pp. 433, 434. On February 19, 1927 the Senate Judiciary Committee recommended that the bill be indefinitely postponed and this recommendation was adopted. Senate Journal, p. 362. On February 21 and 23, 1927, the bill was re-referred to the Judiciary Committee of the Senate. Senate Journal, pp. 692, 721. On February 26, 1927, the Judiciary Committee of the Senate recommended that the bill be amended by adding the following: "Sec. 4. Provided that the provisions of this act shall not apply to offenses made felonies by statute not involving moral turpitude." The committee further recommended that the bill, as so amended, be passed. The recommendation of the committee was adopted and the bill as amended was passed by the Senate, February 28, 1927. Senate Journal, pp. 886, 887. The House of Representatives thereafter concurred in the Senate amendment; and the bill, as amended and passed by the Senate, became law by approval of the Governor.
It is a fundamental rule of statutory construction that in case of conflict or ambiguity "the last expression of the legislative will is the law." And "in case of conflicting provisions in the same statute, or in different statutes, the last enacted in point of time prevails; and . . . if both were enacted at the same time, the last in order of arrangement controls. . . . A proviso in an act repugnant to the purview thereof is not void but stands as the last expression of the legislative will." 36 Cyc. 1130. See also 26 Am. Eng. Enc. Law, p. 734; 11 Enc. U.S. Sup. Ct. Rep. 130; Lewis's Sutherland, Stat. Constr. 2d ed. § 280. The rule is merely the embodiment of common sense.
There is no doubt as to what provision of the law under consideration here contains the last expression of the legislative will nor of the importance which the lawmakers attached thereto. As noted, the lawmakers refused to pass the habitual criminal act if it was made applicable to all felonies. They declared in the most unmistakable terms and manner that it was their intention that the law should not be applicable *Page 533 to all persons convicted of felonies. They said in words, and in circumstances, too clear for doubt that it was their deliberate intention that no person should be subject to the provisions of the act upon conviction of any offense made a felony by statute "not involving moral turpitude." This declared intention of the lawmakers cannot be wiped out by assertions that "all felonies and some misdemeanors involve moral turpitude," and intimations that if the members of the North Dakota legislature supposed that any offense made a felony by statute did not involve moral turpitude they were mistaken. We are not concerned here with whether the views of the members of the North Dakota legislative assembly in this regard are in accord with those of jurists or publicists in other jurisdictions or in accord with the views of the members of this court. We are merely concerned with ascertaining the intention of the lawmakers as expressed in the law, and with that alone; and it is the duty of the courts of this state, to give effect to that intention without regard to whether the members of the North Dakota legislature used the most precise language in expressing it.
It is said in the prevailing opinion that in this state "we are not subject to the common law rule which requires that penal statutes shall be strictly construed. This rule is abrogated by our statute." The statutory provision thus relied upon was embodied in our penal code upon its adoption in this jurisdiction and has remained in force ever since. That provision reads as follows:
"The rule of the common law that penal statutes are to be strictly construed, has no application to this code. All its provisions are to be construed according to the fair import of their terms, with a view to effect its objects and to promote justice." Comp. Laws 1913, § 9201.
Surely it will not be contended that this legislative declaration was intended to confer upon the courts any authority to supply deficiencies in statutes that create or define criminal offenses; or that it was intended to give to the courts license to enter into the realms of conjecture or speculation, and as a result bring persons or acts within such statutes which otherwise would be outside of their letter and spirit. On the contrary, this court has specifically recognized that § 9201, supra, has no such effect. In applying and construing this provision this court has said that if a penal statute "contains a patent ambiguity and admits of two reasonable and contradictory constructions, that which operates in *Page 534 favor of a party accused under its provisions is to be preferred;" and that penal statutes "like all others, are to be fairly construed according to the legislative intent as expressed in the enactment, the court refusing on the one hand to extend the punishment to cases which are not clearly embraced in them, and on the other equally refusing by any mere verbal nicety, or forced consideration or equitable interpretation, to exonerate parties plainly within their scope." State v. Fargo Bottling Works, 19 N.D. 396, 402, 26 L.R.A.(N.S.) 872, 124 N.W. 387. In a word, the rule of liberal construction merely places upon the courts a little larger and more comprehensive duty to search for, ascertain and give effect to, the legislative intent. It in no sense grants any power or license to the judiciary to infringe upon the legislative function. Liberal construction does not mean, as the members of the majority seem to infer, that a criminal law shall be construed liberally in favor of the prosecution and strictly against a person accused of violating it, and that in case of ambiguity and uncertainty, the courts may enter into the realms of speculation and conjecture to find, if possible, some imaginary basis for a legislative intention that it should be applied against the accused. "The rule of liberal construction only requires that a statute be so enforced as to carry into effect the will of the legislature as expressed in the terms thereof, and to give, not stintedly or niggardly, but freely and generously, all the statute purports to give. It does not, however, warrant an extension of the statute to the suppression of supposed evils or effectuation of conjectural objects and purposes, neither referred to nor indicated by any terms used nor clearly within the spirit of the legislation." 25 R.C.L. p. 1076.
The rule of liberal construction does not mean that when a certain act is charged to be violative of a statute that the person accused has the burden of showing that the statute does not apply. It is a fundamental rule even as regards civil rights predicated upon a statute that a person who invokes the statute must show that he is clearly within the terms thereof; and conversely that no person can be subjected to a statutory liability unless it is shown by the party who seeks to enforce the liability that the person sought to be charged is within the terms of the statute. 2 Lewis's Sutherland, Stat. Constr. 2d ed. §§ 571 et seq. Surely no stricter rule should be applied against a person charged with violating a statute where the penalty for violation is imprisonment than *Page 535 where the penalty for violation is liability for damages, and measured in terms of money. In the instant case the duty rests upon the state to show that the legislature intended that the law in question should apply to convictions under the state prohibitory laws. If there is any doubt as to whether the law is applicable, the defendant and not the state is entitled to the benefit of the doubt. State v. Fargo Bottling Works, 19 N.D. 396, 402, 26 L.R.A.(N.S.) 872, 124 N.W. 387, supra. The court may not, under the guise of construction, enter into the realms of speculation or supply deficiences. 26 Am. Eng. Enc. Law, pp. 656, 657; State v. Taylor, 7 S.D. 533, 64 N.W. 548; Wassem v. Fargo, 49 N.D. 168, 25 A.L.R. 758, 190 N.W. 546.
Let us briefly consider the condition which confronted the lawmakers of this state, the subject with which they were dealing, and the condition of the law, at the time they enacted the statute under consideration here. The first prohibitory law enacted in this state provided that a conviction thereunder for a second or successive offense should render the person so convicted subject to imprisonment in the state's penitentiary for not less than one year nor more than two years. Laws 1890, chap. 110, § 10. This provision has remained in force during the entire history of the state (Comp. Laws 1913, § 10,109) and was also embodied in substantially the same form in the law defining the offense of engaging in the liquor traffic. Laws 1923, chap. 268, § 4. It is this latter statute that the defendant in this case is charged with having violated. This statute provides:
"Any person who shall within this state commit the crime of engaging in the liquor traffic . . . shall for the first offense be deemed guilty of a misdemeanor, and upon conviction thereof, shall be fined in any sum not less than $200.00 nor more than $1,000.00 and be imprisoned in the county jail not less than ninety days nor more than one year; and for the second and every successive offense shall be deemed guilty of a felony and be punished by imprisonment in the penitentiary not exceeding two years and not less than one year. Provided, that the phrase `second offense' shall mean a conviction of any offense prohibited by this Act or of the crime of bootlegging as defined in § 10,144 of the Revised Codes of the State of North Dakota for the year 1913, and a subsequent conviction of violating any provision of this Act, whether for the first time or not." Laws 1923, chap. 268, § 4. *Page 536
Did the lawmakers intend to change this law by chapter 126, Laws 1927, in cases of a second or successive offense, where the offender previously had been convicted of two or more felonies? Did they, clearly and beyond all reasonable doubt, express it to be their purpose and intent that a second or successive offense of engaging in the liquor traffic shall be, and is, a crime involving moral turpitude?
In the prevailing opinion it is said: — "Moral turpitude implies something immoral in itself regardless of the fact whether it is punishable by law. The doing of the act itself and not its prohibition by law fixes the moral turpitude." And again: "When the legislature excepted from the operation of the act `offenses made felonies by statute not involving moral turpitude' it must have intended that the character of the offense and not the penalty imposed for its commission should determine its turpitude." I am not prepared to disagree with the propositions thus stated. On the contrary, I am inclined to agree that when the lawmakers said that the habitual criminal act should "not apply to offenses made felonies by statute not involving moral turpitude," they had in mind the character of the act involved in the offense; and that it was their intention to except from the operation of the act all offenses made felonies by statute, where the act, although prohibited by law and subjecting the offender to punishment as for a felony, was, nevertheless, not of such character that it could be said to involve moral turpitude. And it seems to me that if this was the intent and purpose of the lawmakers, the same, if given effect, will lead to exactly the opposite conclusion from that reached by the majority members. It is true, as said in the prevailing opinion, the liquor traffic has always been prohibited by the laws of this state. The constitution made it unlawful to manufacture for sale or gift, or to import for sale or gift, or keep or sell or offer for sale or gift, barter or trade, as a beverage, any intoxicating liquor. N.D. Const. § 217. And yet prior to 1917 there was no provision in the laws of this state restricting the importation of intoxicating liquor by any individual for his own personal use or making it unlawful for a person to possess liquor so imported for such use. In fact, the laws expressly recognized the right of an individual to possess reasonable quantities of intoxicating liquors and made only the possession of unusual quantities of intoxicating liquors presumptive evidence that such liquor had been imported for illegal purposes. Comp. Laws *Page 537 1913, § 10,115. And it is rather significant that the very statute under which the defendant here was convicted recognizes that an individual may, in certain circumstances, lawfully possess intoxicating liquors for his own use. The act provides:
"It shall not be unlawful to possess liquor acquired prior to February 1st, 1920, in one's private dwelling while the same is occupied and used by him as his dwelling only, provided such liquors are for use only for the personal consumption of the owner thereof and his family residing in such dwelling; and the burden of proof shall be upon the possessor in any action concerning the same to prove that such liquor was lawfully acquired, possessed and used." Laws 1923, chap. 268, § 2H.
The National Prohibition Act provides that "it shall not be unlawful to possess liquors in one's private dwelling while the same is occupied and used by him as his dwelling only and such liquor need not be reported, provided such liquors are for use only for the personal consumption of the owner thereof and his family residing in such dwelling and of his bona fide guests when entertained by him therein." 41 Stat. at L. p. 317, chap. 85, title 2, § 33 (U.S.C. title 27, § 50).
If it were not for the specific provision of chapter 268, Laws 1923, would anyone contend that a person would commit any greater wrong or be guilty of any greater moral dereliction because he possessed intoxicating liquors acquired on February 1, 1920, than if he possessed such liquors acquired prior to that date? Yet, under the specific language of said chapter 268, possession of intoxicating liquors under the same identical circumstances are lawful provided such liquors were acquired prior to February 1, 1920, and unlawful if acquired subsequent to that time. Is it not clear that it is not the character of the act but the prohibition of the statute that marks the essential distinction between the two?
During the years the liquor traffic was inhibited by the laws of this state, and yet lawful in the nation at large, were the persons who resided elsewhere (for instance, at the seat of the Federal government) and committed acts, involving intoxicating liquors, lawful where committed, but which would have been unlawful if committed in this state, guilty of acts involving moral turpitude? And at this time are persons who reside in other countries where the possession of intoxicating liquors is lawful, guilty of acts involving moral turpitude when they *Page 538 retain in their possession intoxicating liquors for their own use? In short, is it not apparent that whatever offense against morals may be committed by a person in this state who possesses say one pint of malt or vinous beverage containing more than one-half per cent of alcohol, inheres not in the character of the act itself but in the fact that such act is prohibited by law?
It will be noted that under the terms of said chapter 268, supra, it is not the number of offenses actually committed against the prohibitory laws which determines the measure of punishment under the act, but the number of convictions. A person who is convicted for the first time can be sentenced only for a misdemeanor even though the evidence shows that he has been engaged in the liquor traffic for a long period of time and has committed tens of thousands of acts, each one a violation of the prohibitory laws. Where a person is charged with a second offense the former conviction is not a part or ingredient of the offense charged but is a matter which pertains only to additional punishment. State v. Rozum, 8 N.D. 548, 80 N.W. 477; State v. Markuson, 7 N.D. 155, 73 N.W. 87; State v. Bloomdale, 21 N.D. 77, 79, 128 N.W. 682; State v. Webb, 36 N.D. 235, 162 N.W. 358. In short, under the prohibitory laws of this state it was not and is not the character of the act committed which subjects the offender to the added punishment but the fact that he formerly has been convicted of violating the prohibitory law; for, as said, a person charged with a first offense can be sentenced only as for the commission of a misdemeanor without regard to the character of the act, and even though the evidence shows him to be a most flagrant violator of the law; whereas, one charged with a second offense will be subject to punishment by imprisonment in the penitentiary even though the evidence should indisputably show that in all his life he had committed but two violations of the law and both under circumstances that were more or less extenuating.
At the time chapter 126, Laws 1927 was enacted there were no other crimes known to the laws of this state except that of violating the prohibitory laws and petit larceny (Comp. Laws 1913, § 10,342) where a former conviction of a particular offense transformed the punishment to be imposed upon the offender from that for a misdemeanor to one for a felony. And it may be observed that there is a striking difference between the character of the acts involved in the two offenses. The *Page 539 opprobriousness of the act involved in the commission of larceny is not dependent upon the fact that stealing is prohibited by the statutes of this state. The Commandment, "Thou shalt not steal," was given to mankind by a higher authority than human lawmakers; and the term "thief" has throughout the ages been an opprobrious one in every civilized country. Not so, however, with the possession of intoxicating liquors. True, it is wrongful and unlawful to possess them in this state, in the circumstances inhibited by the statute, because such possession is violative of the law; but surely it cannot be seriously contended that every person in the world who possesses intoxicating liquors, where such possession is lawful, is guilty of an act involving moral turpitude. But I am aware of no civilized country in which the term "thief" is not deemed one of opprobrium and where stealing is not deemed to be an act of baseness or depravity.
It will be noted that the statute under which the defendant was charged and convicted in this case contains a specific provision fixing both the minimum and the maximum punishment to be imposed for a second or a successive conviction thereunder. In short, chapter 268, Laws 1923, contains a provision for the punishment of habitual offenders against the prohibitory laws, and in this respect this statute (and other laws of this state relating to the prohibition of the liquor traffic) differs from all other statutes defining criminal offenses. Chapter 268, Laws 1923, relates to only one specific subject, namely, the liquor traffic. It is not merely a statute defining or creating a crime. It is much more comprehensive; and, as said, among other things provides for additional punishments to be imposed upon persons who shall habitually offend against the prohibitory laws. Its provisions in this regard are explicit both as to the minimum and the maximum punishment that may be inflicted upon any person for a second or successive conviction. Did the legislature intend that chapter 126, Laws 1927 should repeal or amend the provision in chapter 268, Laws 1923, that "any person who shall, within this state, commit the crime of engaging in the liquor traffic . . . for the second and every successive offense, shall be deemed guilty of a felony and shall be punished by imprisonment in the penitentiary not exceeding two years?" While this question is not considered by the majority members the obvious result of their conclusions is that they must be of the opinion that the above quoted provision *Page 540 has been repealed (or amended) by implication as regards cases where the offender previously has been convicted of two or more felonies. According to the reasoning of the majority members, a person who has been convicted of three or more felonies may (and according to the views of the trial judge must) be sentenced to life imprisonment. Laws 1927, chap. 126, § 2.
It is a fundamental rule of statutory construction that repeals by implication are not to be favored, and will not be indulged unless it is manifest that the legislature so intended. 26 Am. Eng. Enc. Law, p. 721. The presumption is that laws are passed by the lawmakers with knowledge of those already existing and that if they intend to repeal an existing statute they will so declare in specific words. 1 Lewis's Sutherland, Stat. Constr. p. 512. In order that an implied repeal may result the repugnancy appearing in the two statutes must be wholly irreconcilable; such repugnancy must be clear and convincing and follow necessarily from the language used. 26 Am. Eng. Enc. Law, 2d ed. pp. 725-726. "An implied repeal on the ground of repugnancy will not result in any case unless both the object and the subject of the statutes are the same; and if their objects are different both statutes will stand." 26 Am. Eng. Enc. Law, 2d ed. p. 727. In cases of doubt considerations of what is just and reasonable are potent factors against repeal by implication. 1 Lewis's Sutherland, Stat. Constr. p. 512.
According to the construction which the majority members place upon chapter 126, Laws 1927, it was intended to operate, and does operate, as an amendment or a repeal of the provisions of chapter 268, Laws 1923, prescribing the punishment to be imposed for a second or successive conviction of violating the prohibitory laws. As a result of the construction of the majority members it follows that if two persons are brought before a district court charged with violating the state prohibitory laws and it is shown that the one has been convicted a dozen times of the most heinous of offenses and is further shown to have violated the state prohibitory laws a thousand times, yet, if it appears that he has never before been convicted of violating the state prohibitory laws, then he may be sentenced only to imprisonment in the county jail for a few months and to pay a fine; but if it be shown that the other person has been convicted once before of violating the state prohibitory laws, and it is further shown that he has been convicted of *Page 541 three felonies, then he may be sentenced to life imprisonment even though it appears without contradiction that he is a far less dangerous criminal and has, as a matter of fact, never violated the state prohibitory law as flagrantly as the first one. Not only is the suggested result possible as between a person convicted for the first, and a person convicted for a second, offense against the prohibitory laws; but results even more extreme may follow. It is possible that two persons may possess intoxicating liquors of the same kind and quantity and in the same circumstances, except as to the date of acquisition; and if one obtained possession before February 1, 1920 and the other on or subsequent to that date, the former would have committed no offense but the second would be guilty of violating chapter 268, Laws 1923. Hence, if chapter 126, Laws 1927 is applicable to convictions for a violation of said chapter 268, then if the persons alluded to had formerly been convicted of three or more felonies, the person who acquired the liquor before February 1, 1920, would be guilty of no offense at all whereas the person who acquired it after that date might be sentenced to the penitentiary for life. Is it reasonable to suppose that the legislature deliberately and intentionally made the distinction between a lawful act and a crime, subjecting the offender to imprisonment for life, depend, not upon the nature or character of the particular act, but solely upon whether the act was committed on January 31, or on February 1, 1920? Surely it should not be assumed that the lawmakers intended to provide for any such unreasonable or unjust results unless they have stated their intention to that effect in terms free from all doubt.
The lawmakers who enacted chapter 126, Laws 1927, were not dealing with the liquor traffic. They were dealing with, and had in mind, a different subject. They knew that there was then in force specific and comprehensive laws relating to the liquor traffic, and to that alone; that these laws provided different penalties for the first and for the second or successive conviction; that they purported to be, and were, complete in themselves and fixed the maximum and minimum punishments that might be inflicted for any number of successive convictions for a violation of the prohibitory laws. There was no attempt made in the 1927 legislative session to enact any legislation in this state prescribing more severe penalties for violation of the prohibitory laws than those then in force. On the contrary, the records of the legislative *Page 542 assembly bear evidence that whatever legislation was proposed relating to prohibition was of a somewhat contrary nature. In fact, the legislative records bear ample evidence that some of the members who supported chapter 126, Laws 1927, introduced and sought to have enacted legislation repealing all the statutes of this state prohibiting the liquor traffic (House Journal, p. 218); and it is a matter of common knowledge that after this proposed legislation had been defeated a large number of the members of the legislature who supported chapter 126, Laws 1927, initiated a movement looking toward the repeal of the prohibitory provision in the state constitution; they became members of the "committee for the petitioners" and were so denominated in the initiative petitions filed with the secretary of state asking for a repeal of the prohibitory provision in the state constitution, which proposed measure was submitted to the people at the general election in 1928. See Laws 1929, p. 403.
It is conceded in the prevailing opinion that the authorities are in conflict as to whether a violation of a statute prohibiting liquor traffic is an offense involving moral turpitude. In view of this conceded conflict, and the condition of the laws of this state relating to intoxicating liquors in existence at the time of the enactment of chapter 126, Laws 1927, can it be said that the North Dakota lawmakers have declared it to be their intent beyond any reasonable doubt, that a violation of the prohibitory laws for a second or a successive offense shall be, and is, a crime involving moral turpitude? It seems to me that the majority opinions themselves bear most convincing evidence that there is at least grave doubt on that score; and, if such doubt exists it must be resolved in favor of the defendant and chapter 126, Laws 1927, held inapplicable to convictions for violations of the prohibitory laws.
As I construe chapter 126, Laws 1927, it does not evidence a legislative intention that it shall be applicable to convictions for violations of the state prohibitory laws; and a person convicted of a second or successive violation of chapter 268, Laws 1923, is still subject to the punishment prescribed in that act and to such punishment alone.
I agree with that part of the prevailing opinion which holds that chapter 126, Laws 1927, does not make it mandatory for the trial court to impose upon a person to be sentenced thereunder the maximum punishment prescribed therein; but that such statute evidences a legislative *Page 543 intention to fix merely the maximum punishment and vests in the trial court the power, and imposes upon him the corresponding duty, to determine what punishment shall be imposed in each case, not exceeding the maximum fixed by the law.