State v. Ripley

Tolman, J.

The appellants were charged by the prosecuting attorney of King county, Washington, with the crime of having in their possession, for the purpose of selling the same, 718 dozen crabs taken from the waters of the state of Washington. It was charged that the appellants had these crabs in their possession on the 27th day of August, 1917.

The information was based upon § 5150-101, Rem. Code, which reads as follows:

“It shall be unlawful for any person, firm or corporation to take or have in their possession for the purpose of selling or canning any female or any male crab measuring less than six and one-half inches across its back or to take or fish from any of the waters of the state or have in its possession after the same has been taken, for the purpose of selling or canning any crab, during the months of July, August and Séptember of each year: Provided, that any such person who has a crab in his possession caught during the month of June may retain the same in his possession lawfully until the fifth day of July thereafter:

The appellant interposed a demurrer to the information, which being overruled, the case was tried to a jury and a verdict of guilty was rendered, upon which a judgment was duly entered, and the appellants prosecute this appeal therefrom, assigning as error the overruling of the demurrer, the rejection of offered evidence, and the giving and refusal of instructions.

The facts, regarding which there is little conflict, are substantially as follows: The Ripley Fish Company is a corporation organized under the laws of this state, doing a general wholesale fish business in the city of Seattle. During the months of July, August and September, 1917, that company had stored in the cold storage warehouse of the Diamond Ice and Storage Company, in Seattle, 718 dozen crabs, which were delivered by it to the storage company in various parcels, beginning April 24, 1917, and continuing up to June 20, 1917. During the summer, beginning with June 25, some of these crabs were withdrawn and sold; some prior to the 5th day of July, which were taken indiscriminately from the place of storage without reference to whether they had been placed there in June or prior months. After July 5, two boxes were withdrawn on July 7. On August 14, one dozen crabs were withdrawn, and on the 16th, two dozen crabs, and on the 17th, two dozen crabs. On August ,20, one box and one-half dozen crabs. On August 22, one box, and on August 24, one-half dozen crabs were withdrawn. Except as so withdrawn, all of the crabs remained in storage throughout July, August, and September.

The appellants contend that the statute should be so construed as to make it read as follows:

“It shall be unlawful for any person, firm or corporation to have in their possession for the purpose of selling or canning, any crabs taken from the waters of the state of Washington during the months of July, August and September of each year.”

And the errors assigned are practically all based upon the failure of the trial court to so construe the statute, sustain the demurrer, and instruct the jury accordingly.

The appellants rely upon the case of State v. Eden, 92 Wash. 1, 158 Pac. 967, 159 Pac. 700, wherein this court construed the initiative prohibition law (Laws 1915, p. 2; Rem. Code, § 6262-1 et seq.), and held that a private citizen, whose nse of liquor was in nowise prohibited, might, under that decision, retain in his possession a greater quantity of liquor than that permitted by the act, provided that he came lawfully into the possession of it prior to the taking effect of the act, notwithstanding section 28 (Id., § 6262-28), which provides for the disposal of surplus stocks of liquor within ten days, and section 23 (Id., § 6262-23) which provides that possession of an excess shall be prima facie evidence that the liquor was kept for purposes of unlawful sale; the court holding that section 22 (Id., § 6262-22), which limits the amount of liquor one may lawfully possess, relates only to the unlawful possession of liquor acquired after the act became effective, and that there is no express provision in the statute making unlawful the keeping of liquors lawfully obtained.

We do not see any great similarity between the two acts.. The provision in the prohibition act with reference to the disposition of surplus liquors could hardly apply to the individual holding liquor for his own use, because he could not lawfully sell the same without procuring a government and local license, and to ship it out of the state under such conditions would be idle. He must either keep it or destroy it. And the law, by its terms, does not require him to destroy it. Moreover, we are not in this case concerned with the mere private use, because the statute under which this prosecution was brought expressly provides that one may take crabs for consumption by himself, his family, or guests, at all times. And appellants are not contending that they were holding 718 dozen crabs for such a purpose.

Were it not for the proviso in the act, the construction for which the appellant contends might be considered upon the authority of State v. McGuire, 24 Ore. 366, 33 Pac. 666, 21 L. R. A. 478, where an act of like wording, except the proviso, was. held not to make unlawful the possession of fish during the closed season, though there is a great, and, we think, irreconcilable, conflict in the decisions of the various states upon like statutes. Indiana, Kentucky, California, Georgia, Illinois, Massachusetts, Michigan, New York, and even Oregon, in later cases (State v. Schuman, 36 Ore. 16, 58 Pac. 661, 78 Am. St. 754, 47 L. R. A. 153, and State v. Pulos, 64 Ore. 92, 129 Pac. 128) have construed similar statutes without the proviso to mean that the possession during the closed season is forbidden.

While the purpose of a proviso is, and has been frequently held by this court to be, to restrain, modify or make an exception to something in the body of the act to which it is attached, and not to broaden the act proper, or to enlarge or extend its scope, yet we see no reason why a proviso may not be considered in arriving at the legislative intent. And in this act the legislature would certainly not have added the proviso permitting the possession during the first five days of July, of crabs caught in the month of June, unless it had intended by the body of the act to forbid all such possession during the closed season. Otherwise the proviso would have no force. If, then, the act is construed as a whole so as to give force and effect to the proviso, as well as to the body of the act, the legislative intent seems clear and unmistakable, and no doubt included the limiting of the taking of crabs to the number which could be disposed of or consumed before July 5th in each year, so as to conserve and perhaps increase the supply; as well as the simplifying of prosecutions for violations of the act by taking away a possible wrongful use of tbe defense of lawful possession during the closed season; and perhaps, also, the protection of the public health, which might be believed to be endangered by the marketing of cold storage crabs during the hot weather period.

After a careful and most painstaking investigation of the various authorities, we are convinced that the legislature intended the act to be construed according to its plain and ordinary meaning, and so as to give force to the whole act, including the proviso. And as the appellants were in possession, during the closed season, of a large quantity of crabs, contrary to the plain letter of the statute, without any purpose of home consumption, but with the admitted purpose of selling the same, either during the closed season or later, it follows that the court did not err in overruling the demurrer, or in the instructions given.

We find no error in the rejection of evidence.

The judgment is affirmed.

Main, O. J., Parker, Mitchell, Mount, and Holcomb, JJ., concur. Mackintosh, J., took no part.