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AGO 1967 No. 4 - February 06, 1967
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John J. O'Connell | 1957-1968 | Attorney General of Washington


CRIMES ‑ HOTELS - LANDLORD AND TENANT - CLASSIFICATION OF CRIME OF OBTAINING ACCOMMODATIONS BY FRAUD.

Where facts occur which constitute a violation of both RCW 9.45.040 and RCW 19.48.110 (relating to obtaining accommodations by fraud), the crime is to be regarded as a gross misdemeanor pursuant to the provisions of the latter statute.

                                                              - - - - - - - - - - - - -

                                                                 February 6, 1967

Honorable Harold R. Koch
Prosecuting Attorney
Thurston County
310 Court House
Olympia, Washington

                                                                                                                   Cite as:  AGO 1967 No. 4

Dear Sir:

            By letter previously acknowledged you have requested an opinion of this office on a question which we paraphrase as follows:

            Where facts occur which constitute a violation of both RCW 9.45.040 and RCW 19.48.110, both of which relate to obtaining accommodations by fraud, is the crime to be regarded as a simple misdemeanor (as provided for by RCW 9.45.040), or is it to be regarded as a gross misdemeanor, pursuant to RCW 19.48.110?

            In our opinion, the crime in question is a gross misdemeanor. Our reasoning is set forth in the following analysis.

                                                                     ANALYSIS

            RCW 9.45.040, which was enacted as a part of the 1909 criminal code,1/ provides as follows:

            "Every person who shall obtain any food, lodging or accommodation at any hotel, restaurant, boarding house or lodging house without paying therefor, with intent to defraud the proprietor or manager thereof, or who shall obtain credit at a hotel, restaurant, boarding house or lodging house by color or aid of any false pretense, representation, token or writing, or who after  [[Orig. Op. Page 2]] obtaining board, lodging or accommodation at a hotel, restaurant, boarding house or lodging house, shall abscond or surreptitiously remove his baggage therefrom without paying for such food, lodging or accommodation, shall be guilty of a misdemeanor."

            This statute has never been expressly repealed.  However, in 1915, as a part of an act2/ relating to the liability and protection of innkeepers, the legislature enacted another statute on the same subject.  This act, as subsequently amended,3/ is currently codified as RCW 19.48.110, and provides as follows:

            "Any person who shall wilfully obtain food, money, credit, lodging or accommodation at any hotel, inn, boarding house or lodging house, without paying therefor, with intent to defraud the proprietor, owner, operator or keeper thereof; or who obtains food, money, credit, lodging or accommodation at such hotel, inn, boarding house or lodging house, by the use of any false pretense; or who, after obtaining food, money, credit, lodging, or accommodation at such hotel, inn, boarding house, or lodging house, removes or causes to be removed from such hotel, inn, boarding house or lodging house, his or her baggage, without the permission or consent of the proprietor, manager or authorized employee thereof, before paying for such food, money, credit, lodging or accommodation, shall be guilty of a gross misdemeanor.  Proof that food, money, credit, lodging or accommodation were obtained by false pretense or by false or fictitious show or pretense of any baggage or other property, or that the person refused or neglected to pay for such food, money, credit, lodging or accommodation on demand, or that he or she gave in payment for such food, money, credit, lodging or accommodation, negotiable paper on which payment was refused, or that he or she absconded, or departed from, or left,  [[Orig. Op. Page 3]] the premises without paying for such food, money, credit, lodging or accommodation, or that he or she removed, or attempted to remove, or caused to be removed, or caused to be attempted to be removed his or her property or baggage, shall be prima facie evidence of the fraudulent intent hereinbefore mentioned."

            The point to be noted, of course, is that the crime defined by the earlier statute (RCW 9.45.040,supra) is a simple misdemeanor whereas the crime defined by the later enactment is declared to be a gross misdemeanor.  And yet, it is manifest that there is no conceivable act which could be charged under the 1909 statute which could not be charged under the 1915 act.

            It has been suggested that the statutes may raise a constitutional question; that if the statutes by their language purport to authorize prosecuting officials to charge violations, either as gross misdemeanors or misdemeanors, prescribing different punishments for the same crime committed under the same circumstances and by persons in like situations, an accused charged with the more serious offense could assert deprivation of his constitutional rights by claiming violation of the equal protection clause of the 14th Amendment to the United States Constitution, and Article I, § 12 of the state constitution relating to privileges and immunities.  It was pointed out inIn re Olsen v. Delmore, 48 Wn.2d 545, 295 P.2d 324 (1956) at p. 550:

            "A statute which prescribes different punishments or different degrees of punishment for the same act committed under the same circumstances by persons in like situations is violative of the equal protection clause of the fourteenth amendment of the United States constitution. . . ."

            See, also,State v. Boggs, 57 Wn.2d 484, 490, 358 P.2d 124 (1961), where the court explained theOlsen case:

            ". . . It stands for the proposition that a statute which purports to authorize prosecuting officials to charge violations of a section of the penal code either as a gross misdemeanor or a felony constitutes a denial of equal protection under the law.  In the instant case, no such discretion is lodged in prosecuting officials. . . ."

             [[Orig. Op. Page 4]]

            Thus, the test is really whether the prosecutor has discretion to charge violations either as misdemeanors or gross misdemeanors.  For reasons that will become apparent, the prosecutor has no such option here.  The crime for defrauding an innkeeper is a gross misdemeanor, in our opinion.

            In thus concluding, we are well aware that repeals by implication are not favored in law.4/   In fact, there is a presumption against repeal by implication.  See, 1 Sutherland, Statutory Construction (3rd ed.) 468, § 2014, and cases cited therein.

            It was said by Judge Dunbar in the Meade v. French case, supra, p. 13:

            ". . . Hence the rule obtains that repeals by implication are not favored, and courts will seek to harmonize the laws and preserve them, rather than declare them abrogated or repealed; and if by any reasonable construction they can stand together, they will both be enforced; and in construing statutes for the purpose of ascertaining whether repugnancy really exists, as well as to gather the intention of the legislature in any particular, the whole statute on the subject must be construed together."

            However, a corollary rule of statutory construction, as stated by our court inAbel v. Diking & Drainage Imp. Dist., 19 Wn.2d  [[Orig. Op. Page 5]] 356, 363, 142 P.2d 1017 (1943),5/ provides that:

            "Repeals by implication are ordinarily not favored in law, and a later act will not operate to repeal an earlier act except in such instances where the later act covers the entire subject matter of the earlier legislation, is complete in itself, and is evidently intended to supersede the prior legislation on the subject, or unless the two acts are so clearly inconsistent with, and repugnant to, each other that they cannot, by a fair and reasonable construction, be reconciled and both given effect. . . ."

            Another rule of construction which appears applicable here is stated inIn re Walder v. Belnap, 51 Wn.2d 99, 316 P.2d 119 (1957), at page 101, as follows:

            "'The subsequent enactment of a statute which treats a phase of the same general subject matter in a more minute way consequently repeals pro tanto the provisions of the general statute with which it conflicts.'  1 Sutherland, Statutory Construction (3rd ed.) 488, § 2022; . . ."

            TheWalder case involved an application for a writ of habeas corpus wherein the petitioner contended, inter alia, that he was incarcerated for taking an automobile under a felony statute (RCW 9.54.020), whereas another statute (RCW 9.61.040 (8)) made the same crime a misdemeanor.  The constitutional argument previously discussed was made, the assertion being that the legislature had improperly vested discretion in the prosecuting authorities to determine the extent of punishment for identical acts.

            However, the supreme court rejected this argument and held that RCW 9.54.020 (the later felony statute) had repealed, by implication, the provisions of RCW 9.61.040 (8) in so far as the earlier misdemeanor statute pertained to the taking of an automobile.

            Another case in which a similar approach was taken was State  [[Orig. Op. Page 6]] v. Binnard, 21 Wash. 349, 58 Pac. 210 (1899), in which the court, quoted from Bishop, Statutory Crimes (2d ed.), §§ 166, 168, stated:

            ". . . while it is true that 'two different punishments for precisely the same offense, with no variations in its elements, and no modifying discretion in the court, cannot, in the nature of things, subsist together,' still 'we can always separate the offense from the punishment.  So that, for example, a statute which provides a new punishment for an old offense repeals by implication only so much of the prior law as concerns the punishment; leaving it permissible to indict an offender either under the old law, whether statutory or common, and inflict on him, upon conviction, the punishment ordained by the new, or under the new statute, at the election of the prosecuting power.'  Bishop, Statutory Crimes (2d ed.), §§ 166, 168."

            From the foregoing we conclude, in answer to your question as paraphrased, that where facts occur which constitute a violation of both RCW 9.45.040 and RCW 19.48.110, the crime is to be regarded as a gross misdemeanor in accordance with the latter statute.

            We trust the foregoing will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

LEMBHARD G. HOWELL
Assistant Atorney General

                                                         ***   FOOTNOTES   ***

1/Section 373, chapter 249, Laws of 1909.

2/Chapter 190, Laws of 1915.

3/Section 6, chapter 216, Laws of 1929.

4/Meade v. French, 4 Wash. 11, 29 Pac. 833 (1892);State ex rel. Purves v. Moyer, 17 Wash. 643, 50 Pac. 492 (1897);Leavenworth v. Billings, 26 Wash. 1, 66 Pac. 107 (1901);Callvert v. Winsor, 26 Wash. 368, 67 Pac. 91 (1901); State ex. rel. Johnson v. Clausen, 51 Wash. 548, 99 Pac. 743 (1909);Hewitt-Lea Lumber Co. v. Chesley, 68 Wash. 53, 122 Pac. 993 (1912);State ex rel. Allen v. Public Serv. Comm., 111 Wash. 294, 190 Pac. 1012 (1920);Erickson v. Perica, 113 Wash. 510, 194 Pac. 963 (1920);State v. Cross, 22 Wn.2d 402, 156 P.2d 416 (1945); State ex rel. Reed v. Spanaway Water Dist., 38 Wn.2d 393, 229 P.2d 532 (1951);State v. Becker, 39 Wn.2d 94, 234 P.2d 897 (1951);Tacoma v. Cavanaugh, 45 Wn.2d 500, 275 P.2d 933 (1954); In re Walder v. Belnap, 51 Wn.2d 99, 316 P.2d 119 (1957);Taylor v. Greenler, 54 Wn.2d 682, 344 P.2d 515 (1959);Babcock v. School Dist. No. 17, 57 Wn.2d 578, 358 P.2d 547 (1961);Hennessey Funeral Home Inc. v. Dean, 64 Wn.2d 985, 395 P.2d 493 (1964); andFransen v. Board of Nat. Resources, 66 Wn.2d 672, 404 P.2d 432 (1965).

5/See, also, State ex rel. Reed v. Spanaway Water Dist., supra;State v. Becker, supra; Taylor v. Greenler, supra; and Tacoma v. Cavanaugh, supra.

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