MINIMUM PENALTY FOR VIOLATION OF THE UNIFORM NARCOTICS ACT

MINIMUM PENALTY FOR VIOLATION OF THE UNIFORM NARCOTICS ACT.

 The Board of Prison Terms and Paroles may not fix a minimum term of less than ten years for offenders of the Uniform Narcotics Drug Act.

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                                                                  March 20, 1952 

Dr. Henry H. Ness, Chairman
Board of Prison Terms and Paroles
614 County-City Building
Seattle 4, Washington                                                                                                              Cite as:  AGO 51-53 No. 262

 Dear Sir:

             We have your request for an opinion as to whether the Board of Prison Terms and Paroles has authority to set a minimum term less than ten years in cases involving violations of the Uniform Narcotics Drug Act in view of section 20, chapter 22, Laws of Second Extraordinary Session of 1951.

             It is our conclusion that the Board of Prison Terms and Paroles may not, other than for a first offender, set a minimum of less than ten years for a violator of the Uniform Narcotics Act.

                                                                      ANALYSIS

             The Uniform Narcotics Drug Act is chapter 22, Laws of Second Ex. Sess. of 1951.  Section 20 of that act reads as follows:

             "Any person violating any provision of sections 1 to 19, inclusive, of this chapter, shall, upon conviction, be punished by a fine not exceeding fifty thousand dollars and by imprisonment in the state penitentiary for a term of not less than ten years:   [[Orig. Op. Page 2]]Provided, That for the first offense the court may in its discretion impose a fine of not to exceed one thousand dollars or a sentence not to exceed one year in the county jail, or both such fine and imprisonment."

             This act contains no express repeals of any prior statutes.  The law is well settled in this state that repeals of statutes by implication are not favored and will not be made where they are not required by the express language of the subsequent statute.  King v. West Coast Grocery Company, 72 Wash. 132, 129 Pac. 1081;Mesher v. Osborne, 75 Wash. 439, 134 Pac. 1092;Bruner v. Little, 97 Wash. 319, 166 Pac. 1166; State ex rel. Washington Mutual Savings Bank v. City of Bellingham; 8 Wn. (2d) 233, 11 P. (2d) 781.  The rule is, rather, that all statutory provisions relating to the same subject should be given effect if possible, and statutes should be harmonized so as to maintain the integrity of all statutes if that can be done.  State ex rel. Shomaker v. Superior Court for King County, 193 Wash. 465, 76 P. (2d) 306.  Section 2, chapter 114, Laws of 1935 as last amended by section 1, chapter 92, Laws of 1947 (Rem. Rev. Stat. Supp. 10249-2) reads in part as follows:

             "When a person is convicted of any felony, except treason, murder in the first degree, carnal knowledge of a child under ten years, * * * and a new trial is not granted, the court shall sentence such person to the penitentiary, or, if the law allows and the court sees fit to exercise such discretion, to the reformatory, and shall fix the maximum term of such person's sentence only.  The maximum term to be fixed by the court shall be the maximum provided by law for the crime of which such person was convicted, if the law provides for a maximum term; if the law does not provide a maximum term for the crime for which such person was convicted, the court shall fix such maximum term, which may be for any number of years up to and including life imprisonment:  Provided, however, That in any case where such maximum term is fixed by the court the maximum term shall be fixed at not less than twenty (20) years.

             "* * *

              [[Orig. Op. Page 3]]

            "Within six (6) months after the admission of such convicted person to the penitentiary or the reformatory, as the case may be,the board of prison, terms and paroles shall fix the duration of his or her confinement.  The term of imprisonment so fixed shall not exceed the maximum provided by law for the offense for which he or she was convicted or the maximum fixed by the court, where the law does not provide for a maximum term.

             "* * *" (Emphasis supplied)

             It will be noted that section 20 of the Uniform Narcotic Drug Act does not in terms refer to the sentence to be imposed by the court except in the case of first offenders, but the language is, "be punished by a fine not exceeding fifty thousand dollars ($50,000) and by imprisonment in the state penitentiary for a term of not less than ten years."  The two sections quoted are capable of reconciliation and therefore each must be given effect.  If these sections are construed together the result is that in cases other than those involving first offenders, the court will, as in other cases, impose only the maximum sentence.  Effect will be given to the requirement of section 20 of the Uniform Narcotic Drug Act that the person be punished by imprisonment in the state penitentiary for not less than ten years by the agency which sets the minimum term of imprisonment, namely the Board of Prison Terms and Paroles.

             It is thus our opinion that this statute does impose the duty upon the Board of Prison Terms and Paroles of fixing the minimum term of imprisonment of any person, except a first offender, convicted under sections 1 to 19 of the Uniform Narcotics Drug Act at not less than ten years.

 Very truly yours,
SMITH TROY
Attorney General 

LYLE L. IVERSEN
Assistant Attorney General