State v. Holt , 121 Mont. 459 ( 1948 )

Appellants are charged with "the crime of selling or supplying liquor to a minor." Only one crime is charged, but by separate informations filed on different dates. The charge against Holt is that the crime was committed on the 22nd day of June, 1946, at the county of Lake in that Holt "did * * * supply or sell intoxicating liquor, to-wit, one pint of whiskey, to one James White, a minor; that the said liquor was delivered to said James White in the tavern at Ravalli, Montana, operated by the defendant Frank Holt by his bartender Elija Hall."

The information against the appellant Hall charges the same offense in the same language, except that it is alleged that "the said liquor was delivered to the said James White by the defendant in the tavern at Ravalli, Montana, operated by one Frank Holt." Each appellant pleaded not guilty to the charge and by consent, the two cases were consolidated for trial. The trial resulted in verdicts of guilty against both defendants, leaving the punishment to be fixed by the court. The judgment and sentence of the court was "that each defendant pay a fine of $400 in the manner provided by law and that in addition thereto each be imprisoned in the county jail of said Lake county for a period of six months."

A motion in arrest of judgment was made and denied. Motion for a new trial was made and denied, and appeal of the defendants is from the judgments of conviction entered against them.

The evidence at the trial was conflicting upon the charge against the bartender Hall. There was no evidence that the appellant Holt personally sold the liquor to White, or that he was present in the place when and where it is alleged to have been sold by Hall, or that Holt knew of such sale. The evidence is undisputed that when Hall was employed by Holt, he was directed and warned by his employer not to sell any intoxicating liquor to any minor or Indian. The tavern in which the sale is alleged to have been made was conducted by the appellant Holt and his wife and operated by them in connection with a lunch room, grocery store and gasoline station.

The appellants specify error in each of the cases, in refusing to grant their motions in arrest of judgment, in refusing to grant a new trial, in giving instructions 7A and 9 1/2, and as to appellant Holt because of fatal variance between the crime charged and the proof offered; and in pronouncing sentence on Holt because there was no evidence supporting the accusation against him.

The state says that as the record shows no objections were[1] made by the appellants to the giving of the instructions, any error therein is not available to appellants because of the provisions of section 11969, Revised Codes of Montana 1935, that, "no cause shall be reversed by the supreme court for any error in instructions which was not specifically pointed out and excepted to at the settlement of the instructions herein specified, and such error and exception incorporated in and settled in the bill of exceptions." This contention is sustained. No objections were made to the instructions and therefore any error therein is not available to the appellants on this appeal.

But there is structural deficiency and defeat in the very foundation of the case that makes it impossible, under any construction of law, to sustain the convictions that are here before us for review. First, it appears that the appellants were sentenced for violation of a statute that had been repealed long prior to the time of the offense charged against them. Secondly, even had this repealed statute been in force and effect, the convictions could not be sustained, because upon the face of the record there appears the violation of a fundamental of criminal law and procedure, that a person may not be prosecuted for one crime and punished for another. Upon the assumption by the court that the repealed statute was in force, that is what was done in the cases at bar. And, thirdly, the record, and the state's admissions as well, disclose that the offense which the evidence tended to prove was not the offense charged against appellants.

To make manifest the situation it is necessary to review briefly the history of the legislation governing the traffic in intoxicating liquors, and to specifically consider the legislation prohibiting the sale of such liquors to persons under the age of twenty-one years.

From the time of the adoption of the Eighteenth Amendment to the Constitution of the United States, January 29, 1919, until its repeal by the Twenty-First Amendment, which became effective December 5, 1933, any and all traffic in intoxicating liquor for beverage purposes was unlawful in all the states of the Union, and the states and federal government had concurrent jurisdiction to enforce the prohibitions contained in the Eighteenth Amendment. Montana co-operated in the enforcement and had an elaborate and complete state prohibition act, and both the state and federal government prosecuted violations of their respective statutes, the state prohibition law of Montana, and the National Prohibition Act, known as the Volstead Act, 27 U.S.C.A., sec. 1 et seq. But by an act initiated by the people in 1926, Montana by vote of the people in November of that year, repealed the state prohibition laws, comprised in 76 sections of Codes and session laws. Laws 1927, p. 603. This repeal, however, left as the only vestige of state prohibition, Chapter 39 of the Session Laws of 1923, which prohibited the sale of liquor to a minor and fixed the penalty at fine and imprisonment. This act was repealed by Chapter 122 of the Laws of 1927, which, in section 1 of the Chapter, prohibited the sale of intoxicating liquors to a "minor" and fixed the penalty for violation. This section 1 of Chapter 122 of the Laws of 1927, is the statute that now appears as section 11048.1 of the Revised Codes of 1935. But, as stated, it was repealed before authorization of the codification, and before the Codes of 1935 were adopted, and its appearance therein as section 11048.1 is unauthorized. It appears in the Codes because the legislature in enacting the State Liquor Control Act in 1933 did not expressly repeal section 1 of Chapter 122, Laws of 1927. Absorbed in consideration of a law to cover the entire subject of the traffic in intoxicating liquor to take effect when the anticipated early repeal of the Eighteenth Amendment to the United States Constitution should usher in what in some quarters was viewed as the "day of jubilee," and knowing that where a comprehensive plan of liquor control was framed into law, such enactment in itself, and without more, operates as a repeal of prior laws in conflict therewith, no express repeal was declared. This repeal of section 1, chapter 122, Laws of 1927, 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. This intrusion of the repealed statute into the Code has resulted in much confusion to the legislature, to law enforcement officials, and to the courts.

That is the statute under which appellants were sentenced. But[2] it was repealed by the enactment of the State Liquor Control Act of Montana, Rev. Codes 1935, sec. 2815.60 et seq., which became law on December 5, 1933. There is no escape from this holding, as careful consideration of the matter demonstrates.

While the states were considering the Twenty-First Amendment to the Constitution of the United States, submitted to them by the Congress, for the repeal of the prohibition Amendment, the Montana legislature, the same year, 1933, enacted Chapter 105, Laws of the Twenty-Third Legislative Assembly. This act provides for a Montana Liquor Control Board, the issuance by the board of permits to purchase intoxicating liquor, and declares in section 99 of the act, that its purpose and intent "are to prohibit transactions in liquor which take place wholly within the state of Montana except under state control as specifically provided by this act." (Emphasis supplied.) It provides that "this act shall go into full force and effect at such time as the manufacture, importation and sale of distilled or vinous liquors, or either or any of them for beverage purposes, shall become lawful under the constitution and laws of the United States."

This act went into effect on December 5, 1933, when the Twenty-First Amendment became effective, and is known and cited as "State Liquor Control Act of Montana."

The act provided that all sales of liquor for beverage purposes should be made through state liquor stores established in each county seat, and at such other places as the state liquor control board might deem proper. It prohibited all sales of liquor except through such liquor stores and under control of the state liquor control board, created by the Act for its administration. The Act contained a section, 2815.115, Revised Codes 1935, reading as follows: "Except in the case of liquor given to a person under the age of twenty-one years by his parent or guardian for beverage or medicinal purposes, or administered to him by his physician or dentist for medicinal purposes, or sold to him by a vendor or druggist upon the prescription of a physician, no person shall sell, give, or otherwise supply liquor to any person under the age of twenty-one years, or permit any person under that age to consume liquor." (Emphasis supplied.)

The violation of this section of the Act is made a misdemeanor and punishable as follows: "* * * not exceeding five hundred dollars ($500.00) fine, or six (6) months' imprisonment, either or both." Secs. 2815.130 and 2815.163, Rev. Codes of Montana 1935.

Chapter 122, Laws of 1927, was in force at the time the State Liquor Control Act was enacted. It provided that "Any person who shall sell * * * 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."

This enactment of the State Liquor Control Act prescribing a less and different penalty for the offense defined in said Chapter 122 repealed the last named statute by necessary implication. It is held that a statute providing for or defining an offense created by a previous Act and providing a materially different punishment repeals the former Act. Sutherland on Statutory Construction, 3d Ed., sec. 2031; State v. Brennan,89 Mont. 479, 300 P. 273. And the repeal is effectuated whether the punishment is reduced or increased. United States v. Yuginovich, 256 U.S. 450, 41 S. Ct. 551, 65 L. Ed. 1043; Norris v. Crocker, 13 How. 429, 14 L. Ed. 210; People v. Tisdale, 57 Cal. 104. Especially is the repeal of the prior inconsistent Act held to be the inevitable result where the later Act is a comprehensive Act "establishing elaborate inclusions and exclusions of persons, things and relationships ordinarily associated with the subject." Sutherland on Statutory Construction, paragraph 2018. Such is the nature of the State Liquor Control Act.

The penalty provided for sale of liquor in violation of[3] section 1 of Chapter 122, Laws of 1927, and the penalty provided for violation of section 2815.115, are different both in kind and amount and by reason of the utter inconsistency that cannot be reconciled, the later Act of necessity repealed the earlier one. While it is said repeals by implication are not favored and if possible conflicting provisions of statutes should be reconciled, where the inconsistency is such as plainly may not be reconciled, the courts do not hesitate to declare the earlier statute repealed by the later legislative expression. State v. Quinn, 40 Mont. 472, 107 P. 506; In re Clark's Estate,105 Mont. 401, 74 P.2d 401, 114 A.L.R. 496; State ex rel. Wilson v. Weir, 106 Mont. 526, 79 P.2d 305; State ex rel. Jackson v. District Court, 107 Mont. 30, 79 P.2d 665.

Notwithstanding this repeal of section 1 of Chapter 122, the section was carried into the Codes of 1935 as section 11048.1, and the legislature, finding the section in the Code, in 1941, passed an Act purporting to amend the section (which then described the offense as selling or disposing of liquor to "a minor") by changing "minor" to "Any Person Under the Age of Twenty-One Years." Laws 1941, c. 124. This was obviously because the attention of the legislature was directed to the fact that, while males under 21 years of age are minors, females attain their majority at the age of 18 years, as declared by section 5673, Revised Codes of Montana.

It might be suggested that by the adoption of the Codes as "the laws of Montana now in force and effect," Chapter 1, Laws of 1937, section 1 of Chapter 122, Laws of 1927, appearing therein as section 11048.1, was re-enacted and became a law as part of the Code, despite its previous repeal in 1933. This is not tenable. This court held in State v. Zorn, 99 Mont. 63, 41 P.2d 513, 515, that where a section of the statute repealed by implication was, nevertheless carried forward into the Codes of 1907, and of 1921, it did not thereby become a law, because so erroneously included in the Codes, because the Act, Laws 1919, c. 195, authorizing the codification of 1921 "was only authorized to carry into the Codes laws ``in force' at the time of codification." A similar authorization was that providing for the 1935 Codes. Chapt. 89, Laws of 1933.

The court in the Zorn case also said, quoting from[4] Hillsborough County Com'rs v. Jackson, 58 Fla. 210,50 So. 423, 138 Am. St. Rep. 110, 19 Ann. Cas. 148, "``if repugnant provisions of prior statutes are compiled and adopted in the General Statutes, it must be presumed that the repugnancy was overlooked, and that it was the intention of the compilers and of the Legislature to bring forward the latest expression of the legislative will where irreconcilable inconsistency or repugnancy appears in different sections of the General Statutes, without reference to whether the latest statute appears first or last in the General Statutes'." To the same effect is cited Syndicate Printing Co. v. Cashman, 115 Minn. 466, 132 N.W. 915. The court in the Zorn case further said, "the manifest inadvertence of a clerical force cannot possibly have the effect of reviving a dead law."

And it might be urged that the purported amendment of the[5] section in 1941 revived or revitalized the repealed statute. But this purported amendment was of no effect. The section to which the amendment applied had been repealed by the enactment of the State Liquor Control Act, taking effect December 5, 1933. It is provided by section 98, Revised Codes of 1935, that "An act amending a section of an act repealed is void." And we have on more than one occasion held that this is true, where the Act in question was repealed by implication. State v. Brennan, supra; In re Naegele, 70 Mont. 129, 224 P. 269. In the Brennan case the court said [89 Mont. 479, 300 P. 276], "It was not possible for the Legislature to put life into a dead statute by amendment of it."

But even if the authority to codify was broad enough to justify [6] the inclusion therein of both section 2815.115, making the sale merely a misdemeanor, and section 11048.1, we would have the same irreconcilable conflict of two sections, one fixing one penalty for the act of selling liquor to a minor, and the other fixing a different penalty for the same act. The rule of construction then applicable is, that, "Where a provision of the Code conflicts with other provisions contained in the same Code, that provision which was originally enacted latest in time will operate to repeal an inconsistent prior provision." Sutherland Statutory Construction, 3d Ed., 2019; State v. Zorn, supra; Hillsborough v. Jackson, supra; State v. Hennepin Dist. Ct.,107 Minn. 437, 120 N.W. 894; State ex rel. Jaster v. Court, 132 Ohio St. 93, 5 N.E.2d 174.

Under any possible construction to be placed upon the[7] statutes, section 11048.1, under which appellants were sentenced cannot be saved.

But treating the questions here involved as though both sections 11048.1 and 2815.115 were in force, irreconcilably conflicting as they are, we come to another impasse.

It is admitted in the record that the appellants were sentenced as for violation of said section 11048.1. In pronouncing sentence, the court, after reviewing the arguments and briefs of respective counsel wherein the defendants contended the court had discretion to fix the penalty within the limits prescribed in sections 2815.130 and 2815.163, for a violation of section 2815.115 of the State Liquor Control Act, that is, by fine not exceeding $500, or imprisonment in the county jail not exceeding six months, or both, held with the county attorney who insisted the penalty should be as fixed by said section 11048.1, and said: "The court is of the opinion that it has no discretion herein, that the penalty as to defendant Hall must be fixed as prescribed in said section 11048.1, as amended, and that the court has no discretion to fix a penalty less than $250.00 fine and six months' imprisonment in the county jail." The court then quoted section 2815.132 and held it made the "occupant of the building or proprietor of the business" a principal in the offense committed by the employee, and sentenced the appellants as for violation of section 11048.1, as hereinabove stated.

The language of the information is the language of section 2815.115, and the court in holding that section 2815.132 made the "occupant of the building or proprietor of the business" a principal in the offense committed by the employee evidently considered the charge to be for violation of section 2815.115 because section 2815.132 being a part of the State Liquor Control Act, applies only to offenses against that Act. Realizing this situation the state in brief herein says: "In the cases at bar the appellants Holt and Hall were each charged with a single offense but the offense with which each was charged was punishable under three separate statutes, namely, section 11048.1, Revised Codes of Montana 1935, as amended by Chapter 124, Laws of 1941; section 11, Chapter 84, Laws of 1937, as amended by Chapter 221, Laws of 1939; and section 2815.132, Revised Codes of Montana 1935."

The state cites section 11581, Revised Codes, to support its contention that a charge under either section cited may upon conviction be punished under section 11048.1, Revised Codes. The cited statute does not so provide. It reads as follows: "An act or omission which is made punishable in different provisions of this code may be punished under either of such provisions, but in no case can it be punished under more than one; an acquittal or conviction and sentence under either one bars a prosecution for the same act or omission under any other, * * *."

In State v. Marchindo, 65 Mont. 431, 211 P. 1093, it was[8] held that this statute is a procedural Act. But it seems that its further purpose is to implement the guaranty of the Montana Constitution providing, "nor shall any person be twice put in jeopardy for the same offense," Art. III, sec. 18, Mont. Const., and to confirm that other guaranty that, "in all criminal prosecutions the accused shall have the right * * * to demand the nature and cause of the accusation." Art. III, sec. 16, Mont. Const.

Such was held to be the purpose of the identical statute in Idaho. State v. Gutke, 25 Idaho 737, 139 P. 346. But whether the statute be adjective or substantive, of the remedy or of the right, it does not sustain the proposition that a person can be prosecuted for violating one statute, and upon conviction be punished for the violation of another and different statute.

It is the "acquittal" or "conviction and sentence" under either statute that bars prosecution for the "same act" under "any other" statute.

It follows from the precise provision of the statute that the "conviction and sentence" must be in accordance with some one statute, for there may not be a "conviction," nor a "sentence" without a prosecution, and in the prosecution, the information must charge the offense relied upon for the conviction, and it is only the offense charged that may be punished.

The Constitution, the laws, and the specific statute, section[9] 11581, all demand that upon conviction of a charge of crime, the offender may be punished only for the offense charged against him. And the due process clause of the Constitution of the United States demands this.

The Supreme Court of the United States as late as the 8th of[10] March, this year, so held. The case, Cole v. Arkansas,68 S. Ct. 514, 516. In that case defendants were charged with a violation of section 2 of an Arkansas statute, tried and convicted upon that charge, and they were sentenced as for violation of section 1 of the statute. The Supreme Court of Arkansas upheld the conviction but the United States Supreme Court said:

"We therefore have this situation. The petitioners read the information as charging them with an offense under sec. 2 of the Act, the language of which the information had used. The trial judge construed the information as charging an offense under sec. 2. He instructed the jury to that effect. He charged the jury that petitioners were on trial for the offense of promoting an unlawful assemblage, not for the offense ``of using force and violence.' Without completely ignoring the judge's charge, the jury could not have convicted petitioners for having committed the separate, distinct, and substantially different offense defined in sec. 1. Yet the State Supreme Court refused to consider the validity of the conviction under sec. 2, for violation of which petitioners were tried and convicted. It affirmed their convictions as though they had been tried for violating sec. 1, an offense for which they were neither tried nor convicted.

"No principle of procedural due process is more clearly established than that notice of the specific charge, and a chance to be heard in a trial of the issues raised by that charge, if desired, are among the constitutional rights of every accused in a criminal proceeding in all courts, state or federal."

Section 2815.132, cited by the state as one of the three[11] statutes under which appellants might be punished, and cited by the court in sentencing Holt, does not provide punishment for any offense. It merely purports to state a rule of evidence, a quasi presumption. It is a part of the State Liquor Control Act and is applicable only to an offense against that Act. It reads as follows: "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." The substance of this section was given to the jury as instruction No. 9 1/2.

It appears from the language of the information, the instruction 9 1/2, the court's statement in sentencing appellants, and the entire record in the case, that appellants were prosecuted for a violation of section 2815.115, the State Liquor Control Act, and sentenced as for violation of section 11048.1.

But even had the repealed section 11048.1 been in force at the time of the offense charged against appellants, neither that section nor yet section 2815.115, also assuming it to be in force, which it was not, were violated by them.

The "retail liquor dealers' license Act" and sections 11 and 38 of that Act, Chapter 84, Laws of 1937, prescribing the penalty to be imposed upon a "licensee or his or her employee" for selling liquor to "any person under the age of twenty-one (21) years," appears to have been ignored by court and counsel. Yet that is the statute which a "licensee" violates by making such a sale.

Said section 11, as amended by section 3 of Chapter 221, Laws of 1939, provides that "No licensee or his or her employee oremployees shall sell * * * any liquor, beer or wine to: 1.Any person under the age of twenty-one (21) years * * *."

This "retail liquor dealers' license Act" was passed after the control of the liquor business by the state had continued for a number of years under the State Liquor Control Act. Its purpose, as declared in the preamble to the Act, was "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." The Act was passed as Chapter 84 of the Laws of 1937, but was suspended by referendum and became a law by vote of the people at the general election held on November 8, 1938.

The Act treats specifically of the issuance of licenses to[12] carry on the business of retail liquor dealer, provides for issuing such licenses by the Montana liquor control board to qualified applicants, which "shall include persons, hotels, clubs, fraternal organizations and railway systems," sec. 3, Chapt. 84, Laws of 1937, and covers the subject of the duties and liabilities of the licensee. It provides that the licensee shall not sell or keep for sale any liquor except that purchased from a state liquor store, contains rather full details of governing and regulating the retail liquor business, and that "any person, who has not been issued a license under this act, who shall sell * * * alcoholic liquor, shall be guilty of a felony and upon conviction thereof shall be fined not less than one thousand dollars ($1,000.00) nor more than five thousand dollars ($5,000.00), or be imprisoned in the state prison for not less than one (1) nor more than five (5) years, or both such fine and imprisonment." Sec. 18, Chapt. 84, Laws of 1937. This penalty is applicable to sales of liquor by a non-licensed person whether made to adult or minor.

This severe penalty of one not the state's licensee, who sells liquor to minor or adult, is of course, to protect the state's monopoly of the liquor business. It would seem that it should be effective for the purpose. The licensee, though, is treated with greater leniency. Of course the purpose of issuing him a license is to permit him to sell the liquor he buys from the state. He is punished only if he sells or keeps for sale liquor other than that which he buys from the state, sec. 17, Chapt. 84, Laws of 1937, for selling at less than the price fixed by the state, sec. 19, Chapt. 84, Laws of 1937, for selling during certain hours and on certain days, sec. 12, Chapt. 84, Laws of 1937, and for selling to a minor, intoxicated person, habitual drunkard, or an interdicted person, sec. 11, Chapt. 84, Laws of 1937, as amended. A more severe penalty is imposed for the sale by a licensee of liquor which he buys from some source other than the state, than for the sale to a minor, drunkard or intoxicated person.

Thus it is to be seen that while the enactment of the state liquor control laws and its sections 2815.115 and 2815.163, operated as a repeal of the Act that was carried into the Code as section 11048.1, said section 2815.115, insofar as it covered the sale of liquor to minors, was in turn repealed by the enactment of the retail liquor dealers' license Act, which so far as the sale of liquor to minors is concerned, made such sale by a "person, who has not been issued a license," a felony, but if a "licensee or his or her employee" merely a misdemeanor, cognizable in the justice court.

So it is not possible to consider section 11 of Chapter 84, Laws of 1937, as an amendment of section 2815.115 of the State Liquor Control Act. The latter section was not amended by the enactment of the retail liquor dealers' license Act. It was repealed by it in so far as the sale of liquor to a person under the age of 21 years is involved. Section 18 of the last named Act makes it a felony for "any person, who has not been issued a license under this Act" to "sell or keep for sale" alcoholic liquor. He is guilty if he sells such liquor to anyone, adult or minor. The Act thus covers the entire field of the sale of such liquor. If the sale is by a non-licensed person to a minor the offense is a felony. If by a licensee it is a misdemeanor. Section 11048.1 having been repealed by the state liquor control law, section 2815.115 of that law was in turn repealed by the retail liquor dealers' license Act, by the like necessary and inescapable implication. The conflicting provisions both may not stand. The later Act is the law. State v. Brennan, supra; Sutherland Statutory Construction, supra.

This Act, insofar as it treats of the sale of intoxicating[13, 14] liquors, by those licensed under the Act, to persons under the age of twenty-one years, is a special Act. It does not relate to "any person" who shall sell, as do the other two cited statutes, nor to "any person, who has not been issued a license," as in section 18 of the Act, but only to "licensees or their employees." Under the long settled and universal rule of construction, the provision of the special Act must prevail over the general provisions of the general law when the special and general laws are in conflict. And especially so where, as here the special Act treats the subject in a minute and definite way. And the rule is particularly compelling where, as here, the special Act treating of sales by the state's licensees, was enacted subsequent to the passage of the state liquor control Act prohibiting all sales of liquor except under state control. Here it is the latest expression of the legislative intention, and the special statute prevails in all cases coming within its field and scope. And this is the rule though the special law antedates the general. Adair v. Schnack, 117 Mont. 377, 161 P.2d 641; Lillis v. City of Big Timber, 103 Mont. 206, 62 P.2d 219; Story Gold Dredging Co. v. Wilson, 106 Mont. 166,76 P.2d 73; Durland v. Prickett, 98 Mont. 399, 39 P.2d 652; Stadler v. City of Helena, 46 Mont. 128, 127 P. 454; Franzke v. Fergus County, 76 Mont. 150, 245 P. 962.

While the information filed against Holt does not state that he was a licensee, the record so shows, and in the brief of the state it is so specifically alleged. After quoting section 8 of Chapter 84, Laws of 1937, providing the nature of the license under which the dealer may act, the state says: "Under the above provision appellant Holt was granted a license to engage in the business of retailing liquor. The only authority which appellant Holt had to engage in such business was under his license." The information against Hall states that he was Holt's bartender and the record shows that he was Holt's employee.

Both Holt, the licensee, and Hall, his employee, were taken out of the operation of other statutes pertaining to the sale of liquor and placed in the special class under which the state of Montana now disciplines its licensees, who are customers of the wholesale liquor business in which the state of Montana is engaged as proprietor. The state in its sovereign capacity, punishes its licensees who violate Chapter 84 by fine, imprisonment, or both, all as hereinbefore mentioned, and "if any such licensee is convicted of any offense under this act his license shall be immediately revoked, or in the discretion ofthe board suspended temporarily for a time to be determined bythe board." Sec. 38 of Chap. 84, as amended by sec. 2 of Chap. 226, Laws of 1947.

Plainly, a licensee, or his employee, is subject to the[15] penalties prescribed by the "retail liquor dealers' license Act." It is the special Act governing the retail liquor business. The state of Montana is the wholesale dealer. The special Act providing for licensing retail dealers was enacted some years after the State Liquor Control Act went into effect. The licensee could be prosecuted for a sale in violation of the "retail liquor dealers' Act" only under the section of that statute alleged to have been violated. He could not be prosecuted under section 11 of Chapter 84, as amended, and punished as for a violation of section 11048.1 as amended, even had that section been in force. Cole v. State of Arkansas, supra; De Jonge v. Oregon,299 U.S. 353, 362, 57 S. Ct. 255, 81 L. Ed. 278.

By the provision of section 2815.148, Revised Codes 1935, the[16] district court is given original jurisdiction "in all criminal actions for violations of the provisions of this act." "This act" is the "State Liquor Control Act." The Act which the evidence tends to show was violated by appellants, was section 11 of Chapter 84, Laws of 1937, as amended.

But original jurisdiction for the violation of said statute,[17] section 11, is not vested in the district court. Original jurisdiction of the offense defined in said section is vested in the justice courts. The district court has only jurisdiction of such offense on appeal thereto from the justice court.

The Montana Constitution vests in the district courts jurisdiction "in all criminal cases amounting to felony, and in all cases of misdemeanor not otherwise provided for," sec. 11, Art. VIII, Mont. Const., and it provides that "justices' courts * * * shall have such jurisdiction in criminal matters, not of the grade of felony as may be provided by law." Art. VIII, sec. 21.

It has been provided by law at all times since the adoption of the Codes in 1895 that "justices' courts shall have jurisdiction of * * * all misdemeanors punishable by a fine not exceeding five hundred dollars, or imprisonment not exceeding six months, or both such fine and imprisonment." Sec. 11630, Rev. Codes of Montana 1935.

Within the limits of the constitutional provisions cited the[18, 19] legislature may confer jurisdiction in any class of cases on either the district courts or justices' courts. State v. Wiles, 98 Mont. 577, 41 P.2d 8. Here the legislature has left jurisdiction of the offense defined in section 11, Chapter 84, Laws of 1937, in the justices' courts. And "the question of jurisdiction may be raised at any time, and may be presented in this court for the first time in the case." Oppenheimer v. Regan, 32 Mont. 110, 79 P. 695, 696.

In view of the conflicting statutes it is not a matter of surprise that courts have fallen into error in attempting to construe and reconcile them in a particular case.

Two cases prior to the instant cases have been before this court in which the appellants were sentenced as for a violation of section 11048.1, Revised Codes 1935, as amended. In neither of these cases was the fact of the repeal of the statute raised by counsel. And in neither of those cases was the fact that prosecutions of the state's licensees, or their employees, for violation of the retail liquor dealers' license Act, prohibiting the sale of intoxicating liquor by such licensees to persons under 21 years of age, must be brought under section 11 of Chapter 84, Laws of 1937, called to the attention of the court. The trial courts were not so advised in either case. In one of the cases, State v. Gussenhoven, 116 Mont. 350,152 P.2d 876, Judge Besancon, district judge who sat in place of Mr. Justice Morris, disqualified, merely said that defendant Gussenhoven was convicted of a violation of section 11048.1, as amended by Chapter 124, Laws of 1941. No assignment of error as to the matter herein set forth was made. From the opinion it appears that the insufficiency of the evidence to support the verdict and that the punishment was excessive were the principal assignments of error made.

In the second of the cases brought here, State v. Nance, Mont.184 P.2d 554, the appeal was from orders refusing permission to defendant to withdraw his pleas of guilty upon which pleas he was sentenced by the trial court, for violation of section 11048.1, as amended. In that case neither the fact of repeal, nor the effect of the enactment of the retail liquor dealers' license Act, upon prosecutions of licensees thereunder for the sale of liquor to persons under the age of 21 years, was presented in the court below or here.

That the repeal of the statute that crept into the Code as [20] section 11048.1, was not called to the attention of the court in the two cited cases, must not deprive the appellants of their rights, now that the fact of such repeal is revealed. The Constitutions of both state and nation, Const. U.S. Amends. 6, 14, Const. Mont. Art 3, sections 16, 27, declare that "no person shall be deprived of life, liberty, or property without due process of law," and "in all criminal prosecutions, the accused shall enjoy the right * * * to be informed of the nature and cause of the accusation." These are rights vouchsafed to all who are accused of crime, be they guilty or innocent. Here appellants were sentenced as for violation of a statute that had ceased to exist. And the offense which the evidence tended to prove was one of which the district court did not have jurisdiction.

It is not possible to read into the retail liquor dealers'[21] 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. Section 40 of the retail liquor dealers' license Act, Chapter 84, Laws of 1937, provides that "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." But this does not give nor purport to give the district court original jurisdiction of the misdemeanor committed by a licensee who sells liquor to a person under 21 years of age in violation of the retail liquor dealers' license Act. It does not make section 2815.148 of the State Liquor Control Act a part of the retail liquor dealers' license Act. The legislature may vest the district courts with jurisdiction in all criminal actions arising under the retail liquor dealers' license Act if in its wisdom it is deemed advisable to do so. It has not done so. Originally, under the State Liquor Control Act, the sale of liquor to persons under 21 years of age in violation of section 2815.115, Revised Codes of 1935, of that Act, a misdemeanor, was cognizable only in the justice court. When it was so held by this court in State v. Wiles, 98 Mont. 577, 41 P.2d 8, on January 22, 1935, the legislature enacted Chapter 166, Laws of 1935, approved March 13, 1935, which is now section 2815.148, Revised Codes of Montana 1935, giving jurisdiction in cases arising under the State Liquor Control Act, to the district courts. It may see fit to do so in cases arising under the retail liquor dealers' license Act. The court possesses not the power. Nor may we resort to rules of construction where the statute is plain and without ambiguity. In pari materia is a rule of construction. There is no room to resort to it nor is there room for any strained or subtle construction where the language of an Act is clear. Kipp v. Paul,110 Mont. 513, 103 P.2d 675; Vaughn Ragsdale Co. v. State Board of Equalization, 109 Mont. 52, 96 P.2d 420.

The retail liquor dealers' license Act is clear as to the offense committed by a licensee or his employee under the Act who sells liquor to a person under 21 years of age, and as to the penalty for such offense, and as to the jurisdiction of the offense.

Under the statutes now in force in Montana, anyone not[22] licensed by the state to sell intoxicating liquors who sells liquor to a minor or any other person, violates section 18, Chapter 84 of the Session Laws of 1937, the retail liquor dealers' license Act, and "shall be guilty of a felony and upon conviction thereof shall be fined not less than one thousand dollars ($1,000.00), nor more than five thousand dollars ($5,000.00), or be imprisoned in the state prison for not less than one (1) nor more than five (5) years, or both such fine and imprisonment." The district courts have jurisdiction of this offense. But if the one who sells such liquor to a minor is a person to whom the state has issued a license to sell liquor, or the employee of such licensed person, he violates section 11 of Chapter 84, Session Laws of 1937, as amended by Chapter 221, Laws of 1939, when he makes such sale, and is punished upon conviction by a fine of not more than $500 or imprisonment in the county jail not more than six months or both such fine and imprisonment. This crime is one of which the district court does not have jurisdiction, except on appeal, and must be prosecuted in the justice court. It is well known that in some of the counties of the state prosecutions of licensed retail liquor dealers for selling liquor to minors are brought in the justice courts. There the actions are properly brought. In some counties, owing to the confusion created by the enactment of the later conflicting statutes, such prosecutions have been mistakenly brought under one or the other of the repealed statutes, section 11048.1 or section 2815.115, Revised Codes of 1935, of which, while they were in force, the district courts had jurisdiction.

By reason of the review of the statutes and their history, and[23] the analysis thereby compelled, it is plain that the statute found in the Codes as section 11048.1, as amended by Chapter 124, Laws of 1941, was repealed by the enactment of the State Liquor Control Act of Montana, before its trespass into the Code. And it is equally plain that since the enactment of the state retail liquor dealers' license Act in 1937, referred to the people and enacted by their referendum vote in 1939, violation of the provision of that Act forbidding the sale of liquor to persons under the age of 21 years by a "licensee or his or her employee or employees" must be prosecuted and punished as provided in that Act. Under this condition of the law, and the admitted state of the facts, it appears that the offense which the evidence tended to prove against appellants was the violation of section 11 of Chapter 84, Laws of 1937, as amended, which makes it a misdemeanor for a "licensee or his or her employee or employees" to sell intoxicating liquor to a person under 21 years of age. This was an offense of which the district court did not have original jurisdiction.

It not being possible to sustain the judgments of conviction and sentence the same are reversed and the actions, which were consolidated for trial and upon appeal, are ordered dismissed.

Associate Justices Choate and Metcalf, concur.