Peck, J., dissenting.

My first impression upon considering the result reached in this case and, more particularly, the rationale which purports to explain it, was, that the majority was indulging in a sort of erudite leg-pull; a pleasant pastime for legal pundits in satirizing the obscurity, law-jargon, formulas, and state-of-the-art patter so typical of some judicial opinions. Here, thought I, for a brief amused moment, is a worthy successor to Sir William S. Gilbert's libretto for "Trial by Jury."

My amused euphoria was short-lived; satire was not the intent at all. The majority is in dead earnest. In the name of the presumption against surplusage in statutory language (which is not valid here in any event) the majority concludes that the words "licensed" and "privileged," as they appear in 13 V.S.A. § 3705(d), are not synonymous. In other words, the connecting "or" is used grammatically to introduce the second of two possibilities (see any standard dictionary). The opinion gives no consideration to the more cogent presumption that the legislature did not intend an absurd result, State v. Rice, 145 Vt. 25, 34, 483 A.2d 248, 253 (1984), or an irrational result, id., or an unreasonable result, Lubinsky v. Fair Haven Zoning Board, 148 Vt. 47, 50, 527 A.2d 227, 228 (1986). Nor does the majority show any interest in plain meanings, preferring instead to reach a predetermined conclusion in the only way it can — a laborious exercise in legal semantics.

Today's result will, of course, be greeted with cheers by would-be trespassers. The opinion makes it exceedingly difficult, if not a practical impossibility, to prosecute anyone successfully under § 3705(d). I have some difficulty in accepting such a consequence as being compatible with the intent of the legislature; it is as absurd as it is unreasonable. Even assuming (arguendo only) that the attempt to make a distinction between the words "licensed" and "privileged" has a facial validity, this Court has said:

Even the very words used by the legislature in the enactment must yield to a construction consistent with legislative purpose. In re Preseault, 130 Vt. 343, 348, 292 A.2d 832, 835 (1972). As that case points out, we operate on the presumption that no . . . unreasonable result was intended by the legislature.

Lubinsky, 148 Vt. at 50, 527 A.2d at 228.

I think it can also be assumed that the legislature intended to enact a law which could be enforced with at least reasonable facility, without the need for endless nit-picking at the meaning of words between prosecution and defense, abetted by vague, labored, and microscopic distinctions by this Court.

The most regrettable aspect of today's result is that it is not necessary or inescapable; the trial court can, and therefore should be, affirmed. Having, long ago, become infected by the virus of common sense, which persuades me to assume that legislative intent matches the ordinary meaning of the statutory language employed, and guides me away from the use of legalistic smoke screens to support a predetermined result, I cannot but dissent, giving herewith my reasons.

I.

The majority claims that the words "licensed" and "privileged" as they appear in § 3705(d) are not synonymous; it points to the conjunctive "or," and the presumption against surplusage. However, if that contention is valid, the statute must be describing two distinct ways in which a violation may occur; two distinct offenses: first, the trespasser enters knowing he is not "licensed" to do so, and second, knowing he is not "privileged" to enter. Grammar will admit of no other result.

Except for the structure of § 3705(d), I see no essential difference between it and certain other statutes which proscribe two courses of conduct, either one of which, by itself, constitutes an offense. 23 V.S.A. § 1201(a) comes to mind. Both (a)(1) and (a)(2) of the statute relate to drunk driving; moreover, they are, like the two parts of 13 V.S.A. § 3705(d), connected by the conjunctive "or." Moreover, this Court has held that the State may charge a defendant with a violation of either or both § 1201(a) and § 1201(b). State v. Lund, 144 Vt. 171, 475 A.2d 1055 (1984).

It is interesting that when 23 V.S.A. § 1201(a) is involved, there is no requirement that a defendant must be charged under both (a)(1) and (a)(2), but given the majority's construction of 13 V.S.A. § 3705(d), which holds that "licensed" and "privileged" mean something quite different one from the other, and, therefore, the statute describes two offenses, a defendant must nevertheless not only be charged with both, he must be convicted of both as well, or he is not guilty of anything. This is an absurd result.

Again assuming the validity of the majority's construction, I can agree that if a person is "licensed" to enter another's premises although he may not be otherwise "privileged" to do so, he cannot be convicted of violating § 3705(d). The one cancels out the other. But this is no more than a defense; in effect, a confession and avoidance. It is no different, in essence, than a defense based on necessity or self-defense. In fact, if a prospective defendant can show the authorities that an entry was "licensed" although it may not have been "privileged" (or vice-versa), it is unlikely he will ever be charged at all, or experience the humiliation and the stigma which attaches in some measure to all criminal trials regardless of the outcome. The State has better things to do than to charge its citizens with a crime, unless, in the best judgment of its prosecuting officers, it has good grounds for doing so. In view of the majority's holding, chances for successful prosecution under § 3705(d) are extremely doubtful; an accused must be charged and convicted of two offenses before he can be found guilty of either.

II.

Turning to a second ground for my dissent, I would begin by emphasizing that my first argument above is predicated on the arguendo assumption that the majority may be correct in holding that "licensed" and "privileged" are not synonymous, and therefore the statute describes two separate offenses.

In fact, I disagree with that holding. The various books of synonyms as well as the dictionaries tend to confirm their essential similarity. Nor does the fact that they may be synonymous necessarily lead to the majority's hasty conclusion that, if they are, the statute contains a surplusage. The word "or" which, in this case, joins "licensed" and "privileged" is frequently employed to clarify or explain, by the very use of a synonym or synonymic phrase, the meaning of another word, thus: "zoology, or the study of animals." Anyone familiar with 18th and 19th century fiction will recall the frequent use of alternative titles joined by "or," as " Frankenstein or the Modern Prometheus." Use of the connective "or" does not, per se, create surplusage as claimed by the majority, nor is its use limited to the introduction of a second possibility.

As long as an applicable license remains in effect, the licensee has the right or privilege to operate a motor vehicle, to hunt, fish, practice a profession or an occupation, operate a bar, sell beer or wine, even to marry. All of these, and others, involve privileges resulting from formal licenses granted by a public agency authorized by law to do so.

These instances involve "license" in a formal, public sense. But its meaning is by no means so narrowly limited. In common parlance it may also be used, inter alia, to describe any freedom to deviate from generally accepted conduct, rule or practice. Webster's New World Dictionary of the American Language 815 (second college ed. 1979) (but this same "freedom" is also a "privilege in any ordinary, common [and common sense] usage). In a 1983 case involving limitations on permission given to enter a neighbor's land for a specific purpose, this Court said:

Nevertheless, [the limited permission] cannot be construed fairly or reasonably to expand her consent . . . beyond its expressed limitation, to include either a general license to enter for any purpose, or for another more limited or specific purpose.

Hillier v. Noble, 142 Vt. 552, 556, 458 A.2d 1101, 1103 (1983) (emphasis added).

Similarly, in cases involving the duty of care owed by a landowner to one who enters upon his land with the consent of the former, courts frequently and commonly employ the word "licensee." "Nor is this a case where the injuries were received by a . . . bare licensee . . . ." Trudo v. Lazarus, 116 Vt. 221, 223, 73 A.2d 306, 307 (1950) (emphasis added). "Assuming that she was either a trespasser or a licensee . . . ." Watterlund v. Billings, 112 Vt. 256, 260, 23 A.2d 540, 542-43 (1942) (emphasis added).

The above discussion of "license" in the context of an entry on another's land may seem to track the single-purpose definition dredged up to make it fit the majority's result. However, the ordinary meaning of the word in common American-English is not that narrow or limited, and there is a "presumption that the ordinary meaning of the statutory language was intended by the legislature." State v. Hull, 143 Vt. 353, 354, 465 A.2d 1371, 1372 (1983) (emphasis added).

When we encounter statutory words which the legislature has not found it necessary to define, that alone indicates the ordinary meaning was intended. That is the test which must be applied in the first instance, before ricocheting off on a tangent to create or limit their meanings in order to bolster a preconceived and proffered result. Only when the common and ordinary meaning test cannot fit the subject word into the statute in which it appears is construction warranted and judicial speculating ever justified. It is always dangerous at best; the probability of violating the true legislative intent is considerable; in fact, that is what has happened here.

The word "license" is not limited in common usage. For example, it is even employed to express "excessive, undisciplined freedom." Webster's New World Dictionary of the American Language 815 (second college ed. 1979); the word "licentious" derives from it. Id. The phrase "poetic license" is not uncommon, and the same is true of other every-day, ordinary uses of "license" as synonymous with, or included in, such words as permission, consent, privilege. Nevertheless, "privilege," while it includes "license," is also broader. I submit, therefore, that the use by the legislature of the phrase "licensed or privileged" does not automatically give rise to a redundancy or surplusage. It merely clarifies the legislative intent that the word "license" ia not necessarily to be restricted to a narrow or formal context, but includes as well its broader and less formal sense as included within the meaning of a privilege. Since this is consistent with "ordinary meaning," it should control here and preclude any such speculative adventuring as that indulged in by the majority.

Some digressions on the general subject may be helpful. The legal doctrine of "necessity" may, under certain circumstances, confer a license to go on lands of another; this is implicit in Ploof v. Putnam, 83 Vt. 252, 75 A. 277 (1910). But since the right lacks the authority of a formal license or a "license by consent," it is better understood, perhaps, in the "privilege" sense. 19 V.S.A. § 502(a) confers on the Agency of Transportation, upon request of the Transportation Board, the right to enter private lands for "the purpose of examination and making necessary surveys" in connection with highway projects. It is not error to consider this right as a license since it is granted by legislative authority (as are all formal licenses), but certainly it is a privilege, and its status as a license would be clarified by referring to the right as a privilege. A formal license to hunt confers on the licensee the right or privilege to enter private land (not posted) for that purpose, but the "license" to enter is not from the owner. And this serves also to demonstrate how utterly contrived and preposterous the majority's definition of "license" really is: for purposes of an entry onto real property, says the majority, it means an entry with the consent of the owner. What nonsense! Quod erat demonsrandum. Finally, considering "license" in the context of freedom to deviate from generally acceptable conduct outside the scope of an entry on land, even an inebriate may be excused from the prohibition against driving under certain emergency circumstances. State v. Shotton, 142 Vt. 558, 458 A.2d 1105 (1983).

I think the foregoing discussion is more than adequate to establish that, while "license" and "privilege" are interchangeable in common parlance, the former is frequently used in a narrower and, at times, a more formal sense although it is included in the latter; a license is, or confers, a privilege. I conclude therefore that even if these words are properly synonymous, it is wholly unnecessary and improper to conclude that the use of both results in an inescapable surplusage. Defendant was charged with an entry "knowing he was not privileged to do so." This is entirely consistent with a logical, simpler and far more likely intent of § 3705(d) than is the laborious, jerry-rigged construction devised by the majority. In alleging that defendant was not privileged to enter, the complaint did no more than charge that he was not licensed to enter. In short, a license is, and is included in, a privilege.

Peculiarly enough, the majority actually acknowledges this. Quoting Black's Law Dictionary 830 (5th ed. 1979), the opinion states that, in the context of entry on real property, "license" means a "`personal or revocable privilege to perform an act or series of acts on the land of another,'" and from the same source, and in the same context, a "licensee" is one "who has a privilege to enter upon land arising from the permission or consent, expressed or implied, of the possessor of land . . . ." (but for his own purposes rather than those of the owner). Id. In addition to its other faults, the opinion is internally inconsistent.

The above quotes from the majority opinion constitute an express recognition of one of the two bases of this dissent. At that point I was hopeful that clear thinking and analysis was about to prevail. Unhappily, it was shortly thereafter that the fatal whopper occurs as the majority, in a masterpiece of condescension, finds the State's argument "alluring" but of course it must be rejected because of the majority's reluctance "to find that a part of a statute is surplusage, a necessary finding to accept the State's argument." This is just plain wrong; no such finding is at all "necessary."

In searching for an introductory comment for my objection to this bad reasoning, I am grateful for a remark written about the United States Supreme Court by Justice Jackson: "We are not final because we are infallible, but we are infallible only because we are final." Brown v. Allen, 344 U.S. 443, 540 (1953). I am forced to find what little consolation there may be in this acknowledgement. The statement that it is necessary to find surplusage is simply preposterous. I like to think that the majority is capable of better reasoning than that; I am, therefore, at a loss to pinpoint the motive which inspired it: an aid to a preconceived result? An unfortunate hasty and superficial analysis? Whatever the motive, it started the majority down a tortuous path to the incredible result.

Having taken this absurdly wrong turning at the outset, the opinion gropes for help in a tangled morass of tort law, whereas we are involved here with the criminal law, and further floundering about in the Model Penal Code (which is not law in this state) expression of concern for scienter. That is an equally absurd concern; the language of § 3705(d) incorporates the scienter factor clearly and expressly. It applies only if the accused enters " knowing that he is not licensed or privileged to do so . . . ." (Emphasis added) (I underscore the key word because the majority apparently missed it).

I think it is clear from the jungle which is the majority opinion that, once having rejected the simple synonym theory of the case outlined above, the majority virtually concedes that it cannot make any clear distinction between "license" and "privilege," and so, like Frankenstein, it creates a monster made of bits and pieces of legal lore from various sources, including the assignment of purely artificial concepts to both "license" and "privilege," otherwise unknown, manufactured solely to justify an equally contrived construction of one particular statutory subsection. It restricts the standard and ordinary usage of the words contrary to the long-standing rule of this and other courts: it is presumed the ordinary meaning of statutory language was intended, State v. Hull, 143 Vt. at 354, 465 A.2d at 1372; "[w]ords in a statute without definition are to be given their . . . commonly accepted use." Northern Rent-A-Car, Inc. v. Conway, 143 Vt. 220, 222, 464 A.2d 750, 751 (1983). This fabricated prodigy is then sutured together with judicial rhetoric, and brought to life by the galvanic stimulus of the collegial sanction.

I have indicated above that the consequence of today's decision makes prosecution extremely difficult. In final summary, I can only reiterate that, if the State is required to charge with reference to both license and privilege as separate concepts, endless bickering and drawing of microscopically fine lines are inevitable. It will involve the prosecution, the defense, and the courts in comic-opera attempts to make a clear distinction between two words which can be, and often are, used interchangeably, or the meaning of one included within the meaning of the other, all in both common and formal usage, except for the wonderful penchant of the legal mind to create a formal distinction that exists nowhere else. This, in turn, gives rise to complete and technical obfuscation and long years of confusion and court time. The problems of proof, trying to demonstrate, as separate concepts, both the absence of license and the absence of privilege, are also overwhelming and obscure. I had always assumed, with considerable naivete it would seem, that the first step in statuary construction was to test the wording by the ordinary meaning rule. Of course, in this case, it would have been impossible for the majority to have reached its preconceived result had it done so. Accordingly, the rule was swept under the carpet of an elaborate word game. We are denied the use of plain, everyday American-English, both formal and informal-colloquial, and forced into trying to make sense of that alien tongue known as legalese.

If all this is necessary, certainly it must be faced; it is not. Except for the sinister capacity of the judicial mind to create complexities where none exist, we are dealing with a relatively straightforward statute, open to a much more obvious and simple construction which protects all the rights of the accused, including the information needed for his defense. Such a simple construction is also consistent with the presumed intent of the legislature to enact an anti-trespass law that will not be frustrated in its enforcement by judicial nit-picking. "Let who will be clever" — for cleverness' sake; but it should not be the judiciary.

For any relevance it may have, I don't believe there can be the slightest doubt but that defendant knows very well exactly what he had been charged with. Claims to the contrary are extremely technical at best; the majority has once more opened the door which permits a criminal defendant to escape the consequences of his prohibited conduct. The majority is quite adroit at doing that.

I would affirm the conviction.