State v. Powles & Co.

Fullerton, J.

(concurring) — In the foregoing opinion the majority of the court hold that the defendant cannot be convicted of a misdemeanor on the information filed against it, because of the invalidity of the statute on which the prosecution is founded. With this holding, and with the major part of the opinion stating the reasons for so holding, I agree. This was the conclusion reached by Judge Chadwick in his dissenting opinion in the case of State v. Bowen Co., 86 Wash. 23, 149 Pac. 330, in which I concurred.

I cannot agree, however, with the conclusion of the majority to the effect that this case can be differentiated from the case cited. In that case, the defendant admitted the facts charged against it and defended in the lower court, and appealed to this court on the sole ground that the statute under which it was being prosecuted was unconstitutional and void. The defendant in this case made the same defense, with the additional defense that the statute had no application to its business. The only difference between the cases is that in the one the defendant’s principal business was of the sort the statute seeks to regulate, while in the other only twenty-five per centum of its business is of that sort. But this, in my opinion, does not warrant the distinction made. I think it clear that if the constitutional question can be raised by the defendant in this case it could, for a much stronger reason, have been raised by the defendant in the earlier one. There the defendant was convicted and sentenced to pay a fine; here the defendant was adjudged not guilty of a violation of the statute, and we have the anomaly of one convicted under a void statute being unable to raise the question of the ■validity of the statute, while another, held not guilty of violating its provisions, being able to do so. Each of them, I think, can raise the question; but if either cannot, it seems to me it is the present defendant, not the other.

But, if both of these decisions can stand as law, we have an anomaly more curious to my mind than even the one suggested. The majority, I do not understand, mean to hold that the inability to raise the constitutional question was personal to the defendant in the case of State v. Bowen & Co., but mean rather to hold that no defendant in its situation can raise it. The effect of the decisions, then, is this: Under the authority of the first case, a commission merchant whose principal business is of the sort sought to be regulated by the void statute can be convicted of a violation of its provisions because he is not in a position to raise the question of its validity, while under the authority of the present case, a commission merchant whose business is only twenty-five per centum of the regulated sort cannot be so convicted, even though his business violates the provisions of the statute, because he is in a position to raise the question.

With all due respect to the majority, I cannot think this conclusion sound. In my opinion, the later case of necessity overrules the earlier one, and I think the court should so declare in terms, not leave the question open to further litigation.