CRIMES ‑- PUBLIC ASSISTANCE ‑- FRAUDULENT OBTAINING OF ‑- LARCENY ‑- PUNISHMENT
1. The crime of fraudulently obtaining public assistance must be charged under RCW 74.08.330 in the public assistance title. 2. That crime may not be punished as a grand larceny, but only as a gross misdemeanor.
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August 1, 1955
Honorable Charles O. Carroll
Seattle 4, Washington Cite as: AGO 55-57 No. 123
Attention: Mr. F. A. Walterskirchen, Deputy
You have requested our opinion upon the following questions:
"Must the crime of fraudulently obtaining public assistant [[public assistance]], i.e., aid to dependent children, old age assistance, general or disability assistance be filed under RCW 74.08.330 rather than RCW 9.54.010 (2)?"
"If the answer to this question is in the affirmative, then if such a crime would be grand larceny in the absence of 74.08.330 due to the amount of money wrongfully obtained, is the crime punishable only as a gross misdemeanor?"
In our opinion the answer to your first question is in the affirmative. [[Orig. Op. Page 2]] The additional question you pose is answered in the affirmative.
1. InState v. Becker, 39 Wn. (2d) 94, 234 P. (2d) 897 (1951), the defendant was charged with the crime of grand larceny in that she obtained with intent to deprive and defraud the state of Washington, "lawful money of the United States of America in excess of $25.00, by color and aid of fraudulent and false representations by then and there falsely and fraudulently applying for and receivingold age assistance grants * * *" (Emphasis supplied) Apparently the information was based upon what was then RRS § 2601 (2), now codified as RCW 9.54.010 (2), often called the general larceny statute. The court held that the crime of fraudulently obtaining old age assistance was exclusively covered by a special statute, RRS § 9998-20, (now RCW 74.08.330, as amended) which constituted an exception to the general larceny statute. Thus, the general larceny statute did not apply to such an offense. The court reached this result, as it said on p. 96 of 39 Wn. (2d):
"* * * on the principle that, where general and special laws are concurrent, the special law applies to the subject matter contemplated by it to the exclusion of the general law. Hartig v. Seattle, 53 Wash. 432, 102 Pac. 408; Sutherland, Statutory Construction (3rd Ed.) 488, § 2022."
Since RRS § 9998-20 was applicable to the exclusion of the general larceny statute, the crime was punishable as a misdemeanor, as provided by that section.
In interpreting theBecker decision, it should be recognized that RRS § 9998-20 was derived from § 20, chapter 182, Laws of 1935, which act dealt withold age assistance only, and not with other forms of public assistance.
RRS § 9998-20 (RCW 74.08.330) was amended in 1951 by § 1, chapter 17, Laws of 1951, Second Ex. Sess. The act was entitled "Old Age Assistance‑-Crimes and Penalties," and designated [[Orig. Op. Page 3]] the crime of obtaining "assistance" by a wilfully false statement or representation, etc., as "larceny." No specific punishment for the crime was indicated in the provision, nor was the offense designated either as a felony or a misdemeanor, gross or otherwise.
The statute was in this form when the case of Harmon v. Cranor, 41 Wn. (2d) 530, 250 P. (2d) 236 (1952), was decided. Defendant in that case was charged under RCW 9.54.010 (2), the general larceny statute, with grand larceny on the ground that she "with intent to deprive and defraud the owner thereof, wilfully, unlawfully, and feloniously did obtain from the state of Washington, Department of Social Security, Aid for Dependent Children Division * * * lawful money of the United States of a value in excess of $25.00 * * *" (Emphasis supplied) The court held the information was properly filed under the general larceny statute. TheBecker case was distinguished on the ground that the special law there involved referred to obtaining fraudulently old age assistance, while the present case related to obtaining fraudulentlyaid to dependent children. The court said at page 531 of 41 Wn. (2d):
"* * * It (the information) does not charge that a crime was committed by falsely and fraudulently applying for and receiving an assistance grant from the state of Washington, as was done in the information specifying that old age assistance was fraudulently applied for and received inState v. Becker, 39 Wn. (2d) 94, 234 P. (2d) 897 (1951). In that case, it was held that the statute defining the crime charged and making it a misdemeanor (Rem. Rev. Stat. (Sup.), § 9998-20, passed in 1935) was not repealed by the senior citizens grants act (Laws of 1941, chapter 1, p. 3, Rem. Supp. 1941, § 9998-34 et seq.), and that, because Rem. Rev. Stat. (Sup.), § 9998-20, created an exception to the general larceny statute, there was no statutory basis to support a charge of grand larceny, by false representation, for obtaining such assistance. * * *"
The court further stated that its decision was based upon the distinction between old age assistance, which was exclusively covered by the special law (RCW 74.08.330) as then in force and aid to dependent [[Orig. Op. Page 4]] children, to which no special law was applicable at that time, by saying:
"In the case at bar, the funds involved are those for aid to dependent children. Such aid was first established by Laws of 1937, chapter 114, p. 452. This act specifically repealed Rem. Rev. Stat., § 9997, providing a penalty for violation of the previous mothers' pension act.
"Since 1937, there has been no provision in the law for special punishment for obtaining aid for dependent children by false representation. The commission of such an offense is a violation of the general larceny statute cited above, and the information in this case charged the petitioner with a felony in the language of that statute. * * *"
We recognize that there is language in the Harmon case which may give rise to argument that the decision is based upon the form of the information which charged an offense under the general larceny statute resulting in the conclusion that there may be an election between charging an offense as grand larceny under the general larceny statute and charging an offense under the special law comprised by RCW 74.08.330 as it was in force at that time. The court said at page 532:
"Chapter 17, § 1, p. 72, Laws of 1951, 2nd Ex. Sess., RCW 74.08.330, defining a crime similar to that with which petitioner is charged, designated as fraud in the procurement of assistance, and specifying that its violation shall be larceny, is not material in this case. Petitioner is not charged in the language of that statute."
However, the concluding paragraph of the opinion convinces us that the question is not one of an election between charging the offense under the general larceny statute on the one hand or under the special law on the other; for the court appears to say that had there been [[Orig. Op. Page 5]] a special law relative to obtaining fraudulently aid to dependent children, the rationale of the Becker case would have compelled the quashing of an information under the general larceny statute charging grand larceny.
After theHarmon decision, the special law comprised by RCW 74.08.330 was again amended. The amendment was contained § 41, chapter 174, Laws of 1953, which was an act entitled "Public Assistance". The amendment had the effect of introducing the term "public" before the term "assistance" in the prior statute. There have been no other amendments since that time and RCW 74.08.330 as currently in force reflects this latest amendment.
The answer to your first question, therefore, depends upon the meaning of the term "public assistance" as used in the present RCW 74.08.330 as distinguished from the term "assistance" which was recognized by the court in theBecker andHarmon cases to refer only to old age assistance. We believe that the following sections of the Public Act (chapter 174, Laws of 1953) determine the question.
Section 17 thereof (RCW 74.08.011) provides:
"(1) 'Public assistance'‑-Public aid to persons in need thereof for any cause, including services, assistance grants, disbursing orders, work relief, general assistance and federal-aid assistance.
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"(5) 'Federal-aid assistance'‑-The specific categories of assistance for which provision is made in any federal law existing or hereafter passed by which payments are made from the federal government to the state in aid or in respect to payment by the state for public assistance rendered to any category of needy persons, including old age assistance, aid to dependent children, aid to the permanently and totally disabled persons, aid to the blind, child welfare services and any other programs of public assistance which are authorized by this act for which provision for federal aid may from time to time [[Orig. Op. Page 6]] be made.
"(6) 'General assistance'‑-Shall include aid to unemployable persons and unemployed employable persons who are not eligible to receive or are not receiving federal-aid assistance * * *"
We believe that all such types of public assistance are now embraced within the special law (RCW 74.08.330) as most recently amended. Hence the rule of theBecker case would necessarily limit the crime of larceny arising from obtaining such public assistance through fraudulent representations to that special law.
2. The question remains whether the offense of obtaining fraudulently public assistance in an amount in excess of $75.00 may constitute grand larceny under RCW 9.54.090 as amended by Chapter 97, Laws of 1955. Neither theBecker nor theHarmon decisions are authority on this question, for in the former case, the statute as then in force designated the offense as a mere misdemeanor and not as larceny at all, while in the latter case, the special law, as then amended to designate the crime as larceny, was held inapplicable.
The determination of the punishment applicable to a "larceny" denounced by the special law RCW 74.08.330 depends upon a construction of RCW 9.54.090, defining grand and petit larcenies, which in part, is as follows:
"Every person who steals or unlawfully obtains, appropriates, brings into this state, buys, sells, receives, conceals, or withholds in any manner specified in RCW 9.54.010
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"(6) Property of the value of more than seventy-five dollars, in any manner whatever; shall be guilty of grand larceny, and be punished by imprisonment in the state penitentiary for not more than fifteen years.
"Every other larceny shall be petit larceny and shall be a gross misdemeanor."
[[Orig. Op. Page 7]]
InIn re Jeane v. Smith, 34 Wn. (2d) 826, 210 P. (2d) 127 (1949), the court decided that RRS § 2601-2 (now RCW 9.54.050), which described a certain offense as "larceny", though one not necessarily excluded from the purview of the general larceny statute RRS § 2601 (Now RCW 9.54.010), fell under the last sentence of RRS § 2605 (now RCW 9.54.090) and was therefore punishable as a petit larceny and a gross misdemeanor. The court said:
"Subsections one to five inclusive refer to larcenies defined in Rem. Rev. Stat., § 2601. No reference is made to Rem. Rev. Stat., § 2601-2. Any larceny to which these subsections apply is grand larceny; every other larceny is a gross misdemeanor. We think this is unambiguous. The larceny defined in Rem. Rev. Stat. § 2601-2, necessarily falls in this latter classification."
We believe that the "larceny" denounced by RCW 74.08.330 also falls within the classification of "every other larceny", and thus such an offense is punishable as a gross misdemeanor, i.e., a petit larceny.
Thus, owing to the fact that the Becker rationale compels treating the offense of fraudulently obtaining public assistance as arising exclusively under RCW 74.08.330 as a special statute, by the same token such a "larceny" is necessarily one falling within the class of "every other larceny" under RCW 9.54.090 and is punishable only as a gross misdemeanor regardless of the amount obtained.
Very truly yours,
ROBERT G. BOYD
Assistant Attorney General