DRINKING IN PUBLIC PLACES

DRINKING -- DRINKINGIN PUBLIC PLACES.

Section 34 of Chapter 62, Laws of 1933 (RCW 66.44.100) prohibiting the opening of packages containing liquor or consuming of liquor in a public place, except as provided by the Liquor Act, has not been repealed, either expressly or by implication.

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                                                                 October 1, 1953

Honorable Evro M. Becket
Chairman
Liquor Control Board
Public Lands-Social Security Building
Olympia, Washington                                                                                                              Cite as:  AGO 53-55 No. 141

Dear Sir:

            In your letter of September 3, 1953, you requested an opinion as to whether or not RCW 66.44.100 as derived from section 34, chapter 62, Laws of 1933, Ex. Sess., has been repealed expressly or by implication.  The section cited provides as follows:

            "Except as permitted by this act, no person shall open the package containing liquor or consume liquor in a public place.  Every person who violates any provision of this section shall be guilty of a misdemeanor, and on conviction therefor shall be fined not more than ten dollars ($10)."

            It is our conclusion that this section of the statute has not been repealed either expressly or by implication.

                                                                     ANALYSIS

            An examination of subsequent legislation on this subject discloses no express repeal of this section.  RCW 66.24.400-66.24.470 is a codification of Initiative measure 171, which was passed at the November, 1948, election.  This measure authorizes the liquor control board to issue licenses for the sale of liquor by the drink, beer and wine in certain types of premises.  Several new sections were added and some amended to provide for the issuance of class H licenses and to control the sale of liquor by the drink.

            RCW 66.24.460 provides as follows:

            "Notwithstanding any provisions of this title, or of any provisions of any other law which may otherwise be applicable, it shall be  [[Orig. Op. Page 2]] lawful for the holder of a class H license to sell beer, wine and spirituous liquor in this state in accordance with the terms of RCW 66.24.400 to 66.24.470, inclusive."

            We are aware that the definition of "public place" under RCW 66.04.270 includes:

            "* * * those parts of establishments where beer may be sold under this title, * * *"

            This section is derived from the 1933 act, as amended by section 1, chapter 158, Laws of 1935.  Manifestly, the people could not have intended in passing Initiative 171 to have authorized the licensing of premises where liquor may be legally consumed by the drink and to have made such consumption a misdemeanor because beer also may be sold on the premises.  What obviously was intended by RCW 66.24.460 is that validly licensed class H premises, although public places, are not within the definition of "public places" as used in RCW 66.44.100 or as defined in RCW 66.04.270.  Nor can we find any basis for the proposition that in limiting the definition "public place" to such an extent, evidences an intention to repeal the entire penal section relating to drinking in public.  Such a proposition does violence to the long-established rule of statutory construction that repeals by implication are not favored.

            In the recent case ofState ex rel. E. J. Reed v. Spanaway Water District, 38 Wn. (2d) 393, the court said:

            "'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.  State ex rel. Spokane & Eastern Branch of the Seattle First Nat. Bank v. Justice Court, 189 Wash. 87, 63 P. (2d) 937, and cases therein cited; 25 R.C.L. 920, Statutes, Sec. 170.' see, also,Lindsey v. Superior Court, 33 Wn. (2d) 94, 204 P. (2d) 482."

             [[Orig. Op. Page 3]]

            Applying the test set forth by the court to the question at hand, we are of the opinion (1) Initiative 171 does not cover the entire subject matter of chapter 62, Laws of 1933, ex. sess., but only amends in part and adds certain sections, (2) the Initiative measure is not complete within itself, (3) that the measure was not intended to supersede the prior act, some sections were left intact, some amended, and new ones added, (4) Initiative 171 is not "clearly inconsistent" with RCW 66.44.100.  The qualifying language of this section "except as permitted by this act" should be accorded its proper significance.  By any fair and reasonable construction these two acts can be reconciled.  It can be perfectly proper to permit the consumption of liquor by the drink in premises holding a class H license, and yet be illegal to drink in premises not having such a license and which are referred to in RCW 66.44.100 as public places.

            We conclude that the statutory prohibition against consuming liquor in public places has not been repealed, either expressly or by implication.

Very truly yours,

DON EASTVOLD
ttorney General

FRED C. DORSEY
Assistant Attorney General