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AGO 1957 No. 62 - May 13, 1957
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John J. O'Connell | 1957-1968 | Attorney General of Washington

UNIFORM FIREARMS ACT ‑- ENFORCEABILITY STATUTES ‑- CONSTRUCTION

(1) The uniform firearms act is still in force, though its penalty provision has been declared unconstitutional.

(2) The provisions of the uniform firearms act authorizing the carrying of a concealed pistol with a license, should be construed together with those of an independent statute prescribing penalties for "furtively carrying with an intent to conceal" such a weapon, in order to preserve the integrity of both statutes.

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                                                                   May 13, 1957

Honorable Roger L. Olson
Prosecuting Attorney
Franklin County
P.O. Box 888
Pasco, Washington                                                                                                               Cite as:  AGO 57-58 No. 62

Dear Sir:

            You have inquired as to whether the provisions of the uniform firearms act (RCW 9.41.010 through 9.41.160) and specifically those requiring application for permission to carry a pistol, are still in force in view of the decision ofIn re Olsen v. Delmore, 48 Wn. (2d) 545, holding RCW 9.41.160, the penalty provision of the act, unconstitutional.

            You have inquired further as to whether it is possible to prosecute for violations of this act under RCW 9.41.250, providing penalties for the carrying and concealing of a pistol.

            Our answer to both questions is in the affirmative.

             [[Orig. Op. Page 2]]

                                                                     ANALYSIS

            InIn re Olsen v. Delmore, supra, the supreme court held RCW 9.41.160, the penalty provision of the uniform firearms act, unconstitutional, in that it prescribed different punishments for the same act.  The court expressly refused to decide whether any portion of the uniform firearms act was separable.

            Since the court has declined to take a position concerning the status of the remainder of the act, we can only assume that it is still in effect.  The attorney general is required to presume acts of the legislature constitutional until they are declared otherwise by a court of competent jurisdiction.  See AGO 57-58 No. 13 [[to Victor E. Meyers, Secretary of State, on February 6, 1957]].

            Your problem apparently arises from the fact that without the penalty provision, the remainder of the act might be considered unenforceable.  Thus your second question raises the possibility of proceeding under a related statute, RCW 9.41.250, in prosecuting individuals for carrying a concealed pistol without a license.

            RCW 9.41.070, which is part of the uniform firearms act, provides that certain named officials may issue a license to carry a concealed pistol.  RCW 9.41.250, an independent statute which was last amended in chapter 93, Laws of 1957, reads as follows:

            "Every person who shall manufacture, sell or dispose of or have in his possession any instrument or weapon of the kind usually known as slung shot, sand club, or metal knuckles, or spring blade knife, or any knife the blade of which is automatically released by a spring mechanism or other mechanical device;who shall furtively carry with intent to conceal any dagger, dirk, pistol, or other dangerous weapon; or who shall use any contrivance or device for suppressing the noise of any firearm, shall be guilty of a gross misdemeanor."  (Emphasis supplied.)

            It is well established that two consistent statutes on the same subject are to be construed together, and must be compared to ascertain and effectuate the legislative intent.  State v. Herr, 151 Wash. 623; State v. Superior Court for King County, 105 Wash. 676.  They should be construed so as to maintain the integrity of both.  Kruesel v. Collin, 171 Wash. 200

             [[Orig. Op. Page 3]]

            Consequently, an individual carrying a concealed pistol without a license may be prosecuted under RCW 9.41.250.  However, if he has been properly licensed in accordance with RCW 9.41.070, he is immune to such prosecution.  This construction gives effect to both statutes in accordance with the principles above set forth.

            We trust the foregoing will prove helpful.

Very truly yours,

JOHN J. O'CONNELL
Attorney General


JOHN S. ROBINSON
Asistant Attorney General

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