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AGLO 1971 No. 89 -
Attorney General Slade Gorton

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                                                                     July 8, 1971
Honorable Edward C. Beeksma
Prosecuting Attorney
Island County
Court House
Coupeville, Washington 98239                                                Cite as:  AGLO 1971 No. 89 (not official)
Dear Sir:
            We acknowledge receipt of your letters dated July 1, 1971, requesting our opinion on two questions pertaining to chapter 308, Laws of 1971, Ex. Sess. (Second Substitute Senate Bill No. 146), an act relating to "controlled substances"; enacting the "uniform control substances act"; and repealing a number of previous statutes dealing with drugs and drug control in this state.
            Your first question reads as follows:
            "Please indicate the date and time the above‑mentioned Uniform Controlled Substances Act became effective.
            "I presently have charges pending for crimes committed on May 21, 1971 and must determine whether the old law or new law was in effect at that moment."
            Section 69.50.607 of the act declares the effective date thereof as follows:
            "This act is necessary for the immediate preservation of the public peace, health and safety, the support of the state government and its existing public institutions, and shall take effect immediately."
            The act was signed by the governor on May 21, 1971, and was filed with the secretary of state at 11:27 P.M., on that date ‑ both in accordance with the requirements of Article III, § 12 of our state constitution.
             [[Orig. Op. Page 2]]
            Because the issue raised by your first question is related to pending or imminent litigation, it would be contrary to long-standing policy for this office to issue an official opinion on this question at the present time.  However, we believe, informally, that the safer position for you to take in regard to the matter is that the act did not become effective until the specific time of day (11:27 P.M.) when it was filed with the secretary of state.  In so advising, we recognize that there is authority in this state for the proposition that
            ". . . a statute which takes effect from and after its passage goes into operation on the day which it is approved, and has relation to the first moment of that day.  . . ."
            See, In re Boyce, 25 Wash. 612, 66 Pac. 54 (1901).  However, that case did not involve an act which was intended by the legislature to become effective upon the day of its passage; rather the court there was merely confronted with an ordinary act which does not become effective until ninety days after adjournment of the session at which it was enacted.
            No other Washington cases in point have been found.  From our review of the text materials and annotations of cases from other jurisdictions, it appears that there is a rather substantial split of authority within the various states with regard to the applicability of a "fractional day" rule in this area.  See, for a general discussion, 82 C.J.S., Statutes, § 406; also, 1 Sutherland, Statutory Construction, 3rd Ed., § 1608.
            However, regardless of this split, where the statute in question is (as here) a criminal statute, even those jurisdictions which ordinarily date the effectiveness of an act back to the first minute of the day upon which it was passed appear to make an exception to this rule.  See, Moree v. State, 130 Miss. 341, 94 So. 229 (1922).  Moreover, relying largely upon the redoubtable Lord Mansfield in Combe v. Pitt, 3 Burr. 1423, 97 Eng. Rep. 907 (1723), Professor Sutherland has characterized this "counting the fractions of a day" as being both the majority and the better reasoned rule.  We quote, in pertinent part, from this text as follows:
             [[Orig. Op. Page 3]]
            "When a statute is to take immediate effect the rule that the law takes no notice of fractions of a day has largely been abrogated in determining the precise time of its taking effect.  Lord Mansfield said, 'though the law does not in general allow of the fractions of a day, yet it admits it in cases where it is necessary to distinguish; and I do not see why the very hour may not be so too, where it is necessary and can be done.'  The necessity for this exists when an act is done on the same day a statute affecting the act is passed, because an act committed before the statute is passed should not be affected by the statute, and an act done after the passage of the statute should be affected by it.  A statute should not commence operation six hours before its passage just as a statute should not be effective six days or six years before its actual enactment.  A statute which is to take immediate effect is operative from the exact instant of its becoming law by the weight of American authority."  (1 Sutherland, Statutory Construction, 3rd Ed. § 1608.)
            Turning, now, to your second question, you have expressed concern with the relationship between § 69.50.407 of chapter 308, Laws of 1971, Ex. Sess., and the preexisting provisions of RCW 9.22.010.  These two statutes provide, respectively, as follows:
            Section 69.50.407, chapter 308, Laws of 1971, Ex. Sess.:
            "Conspiracy.  Any person who attempts or conspires to commit any offense defined in this chapter is punishable by imprisonment or fine or both which may not exceed the maximum punishment prescribed for the offense, the commission of which was the object of the attempt or conspiracy."
            RCW 9.22.010:
            "Whenever two or more persons shall conspire‑-
            "(1) To commit a crime; or
             [[Orig. Op. Page 4]]
            "(2) Falsely and maliciously to procure another to be arrested or proceeded against for a crime; or
            "(3) Falsely to institute or maintain any action or proceeding; or
            "(4) To cheat or defraud another out of any property by unlawful or fraudulent means; or
            "(5) To prevent another from exercising any lawful trade or calling, or from doing any other lawful act, by force, threats or intimidation, or by interfering or threatening to interfere with any tools, implements or property belonging to or used by another, or with the use or employment thereof; or
            "(6) To commit any act injurious to the public health, public morals, trade or commerce, or for the perversion or corruption of public justice or the due administration of the law; or
            "(7) To accomplish any criminal or unlawful purpose, or to accomplish a purpose, not in itself criminal or unlawful, by criminal or unlawful means;
            "Every such person shall be guilty of a gross misdemeanor."
            To the extent of any inconsistency between these two statutory provisions, the following rule, as stated in In re Walder v. Belnap, 51 Wn.2d 99, 316 P.2d 119 (1957), at page 101, would appear to be applicable:
            "'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; . . ."
             [[Orig. Op. Page 5]]
            The Walder 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.  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.
            Here, RCW 9.22.010, supra, is a general conspriacy statute whereas § 69.50.407, chapter 308, Laws of 1971, Ex. Sess., is a special act dealing with conspiracies to commit violations of that chapter alone.  As a later special statute, it thus takes precedence over the prior general statute to the extent that it covers a portion of the subject matter of the earlier act.  Therefore, it follows, in our opinion, that if a conspiracy charge is filed in regard to an alleged conspiracy to violate the provisions of chapter 308, Laws of 1971, Ex. Sess., the appropriate statute under which the charge is to be filed is § 69.50.407, chapter 308, Laws of 1971, Ex. Sess., and not RCW 9.22.010.
            We trust that the foregoing will be of some assistance to you.
Very truly yours,
Philip H. Austin
Deputy Attorney General