MOTOR VEHICLES - AUTHORITY OF JUSTICE OF THE PEACE TO SUSPEND ADDITIONAL EXCESS WEIGHT FINES WHERE EXCESS WEIGHT EXCEEDS FIVE THOUSAND POUNDS

MOTOR VEHICLES - AUTHORITY OF JUSTICE OF THE PEACE TO SUSPEND ADDITIONAL EXCESS WEIGHT FINES WHERE EXCESS WEIGHT EXCEEDS FIVE THOUSAND POUNDS.

The justice of the peace may not suspend the additional excess weight fines provided in RCW 46.44.045 (2) where the excess weight involved exceeds five thousand pounds.

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                                                                    June 8, 1960

Honorable Alf M. Jacobsen
Prosecuting Attorney
Wahkiakum County
Cathlamet, Washington                                                                                              Cite as:  AGO 59-60 No. 123

Dear Sir:

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

            May a justice of the peace suspend the additional excess weight fines provided in RCW 46.44.045 (2) where the excess weight involved exceeds five thousand pounds?

            We answer this question in the negative.

                                                                     ANALYSIS

            Justice courts, although they are constitutional courts (State ex rel. Pacific Coast Adjustment Co. v. Taggart, 159 Wash. 201, 292 Pac. 741 (1930), derive their powers from the legislature (Article IV, § 10, Washington Constitution, as amended by Amendment 28).

            With respect to violations of RCW 46.44.040 through 46.44.044, the legislature has declared that any person guilty thereof shall be fined as prescribed in RCW 46.44.045 (1) and "In addition to, but not in lieu of, the above basic fines, such person shall be fined . . ." the graduated excess weight penalties (RCW 46.44.045 (2)).  The proviso contained in subsection (2) of RCW 46.44.045 authorizes the court, in its discretion, to suspend the excess weight penalties provided two  [[Orig. Op. Page 2]] conditions are met: (a) The excess weight must be less than five thousand pounds, and (b) there must not have been a prior conviction thereunder.  In no case shall the basic fine be suspended.

            Applying the rule of statutory construction that the expression of one thing excludes the others not expressed, expressio unius est exclusio alterius, (cf. DeGrief v. Seattle, 50 Wn. (2d) 1, 12, 297 P. (2d) 940 (1956)), we believe that the legislature has clearly manifested its intention that the excess weight penalties are subject to suspension only under the conditions prescribed in the proviso.

            We recognize that RCW 9.92.060 provides:

            "Whenever any person shall be convicted of any crime except murder, burglary in the first degree, arson in the first degree, robbery, carnal knowledge of a female child under the age of ten years, or rape, the court may in its discretion, at the time of imposing sentence upon such person, direct that such sentence be stayed and suspended until otherwise ordered by such court, and that the sentenced person be placed under the charge of a parole or peace officer during the term of such suspension, upon such terms as the court may determine:  Provided, That as a condition to suspension of sentence, the court may require the convicted person to make such monetary payments, on such terms as the court deems appropriate under the circumstances, as are necessary (1) to comply with any order of the court for the payment of family suport [sic] [[support]], (2) to make restitution to any person or persons who may have suffered loss or damage by reason of the commission of the crime in question, and (3) to pay any fine imposed and not suspended and the court or other costs incurred in the prosecution of the case, including reimbursement of the state for costs of extradition if return to this state by extradition was required.  In no case shall a sentence be suspended under the provisions of this section unless the prisoner if sentenced to confinement in a penal institution be placed under the charge of a parole officer, who is a duly appointed and acting officer of the institution to which the person is sentenced."

            And we are not unmindful that this statute has been held by our supreme court to apply to justice courts.  State ex rel. Graham v. Willey, 168 Wash. 340, 12 P. (2d) 393 (1932).  Notwithstanding these considerations, there is  [[Orig. Op. Page 3]] yet another rule of statutory construction which compels our conclusion herein.

            RCW 9.92.060 is a general law, applying generally to all cases falling within its scope.  But RCW 46.44.045 (2) is a special law, concerning only excess weight violations.  In similar situations our supreme court has held 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 act.  State v. Becker, 39 Wn. (2d) 94, 234 P. (2d) 897 (1951); City of Airway Heights v. Schroeder, 53 Wn. (2d) 625, 335 P. (2d) 578 (1959).  In People v. Breyer, 139 Cal. App. 547, 34 P. (2d) 1065, 1066 (1934), we find the rule stated as follows:

            "It is the general rule that where the general statute standing alone would include the same matter as the special act, and thus conflict with it, the special act will be considered as an exception to the general statute whether it was passed before or after such general enactment.  Where the special statute is later it will be regarded as an exception to or qualification of the prior general one; and where the general act is later the special statute will be considered as remaining an exception to its terms unless it is repealed in general words or by necessary implication.  [Citations omitted.]"

            Accordingly, we conclude that in so far as RCW 46.44.045 (2) conflicts with the general power granted under RCW 9.92.060 to suspend fines and sentences, the former supersedes the latter and must be deemed controlling.  (Cf. Hartig v. Seattle, 53 Wash. 432, 102 Pac. 408 (1909).)

            It is therefore our conclusion that a justice court is without authority to suspend the excess weight penalties made mandatory by RCW 46.44.045 (2) except as otherwise provided therein.

            We trust that the foregoing will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

ROBERT J. HALL
Assistant Attorney General