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AGO 1957 No. 13 - February 06, 1957
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John J. O'Connell | 1957-1968 | Attorney General of Washington

POWERS OF THE ATTORNEY GENERAL ‑-  INTERPRETATION OF INITIATIVE NO. 199 ‑- DUTIES OF THE SECRETARY OF STATE

(A.) The attorney general must presume the constitutionality of a duly enacted law until it has been declared unconstitutional by a court.

(B.) Certain seeming ambiguities in the text of Initiative No. 199 can be explained by close examination of the initiative and the maps referred to therein.

(C.) The secretary of state, as an executive officer, must administer a duly enacted law to the best of his ability, though such administration may present difficulties.

                                                                  - - - - - - - - - - - - -

                                                                 February 6, 1957

Honorable Victor A. Meyers
Secretary of State
Legislative Building
Olympia, Washington                                                                                                                Cite as:  AGO 57-58 No. 13

 

Dear Sir:

            You have requested our opinion concerning Initiative Measure No. 199.  Your request classifies itself into three inquiries:

            A. An over-all inquiry as to the constitutionality of Initiative Measure No. 199

            B. A recitation of ten problems in the initiative, which, if unresolved, appear to you to render the initiative "unworkable."

            C. How your office should proceed to administer the initiative.

             [[Orig. Op. Page 2]]

                                                                     ANALYSIS

            A. In answer to your first question, the duty of this office is clear.  Initiative No. 199 having become law, we must presume it to be valid and constitutional until it has been held invalid by a court of competent jurisdiction.  This policy was adopted by this office in 1891 (Ops. Atty. Gen. 1891-92, page 93) and has been followed for the past sixty-five years.  See Ops. Atty. Gen. 1891-92, pages 116, 191; 1893-94, pages 38, 46, 77; 1903-04, pages 211, 232, 314; 1905-06, pages 66, 86, 88; 1907-08, pages 110, 230, 459, 488; 1928, page 867; 1945-46, page 269.  For additional citations, see Index-Digest of Attorney General's Opinions, "Attorney General."  2 (b), page 17.

            The reason for this consistent holding are obvious and have been frequently set forth in our opinions.  In the last cited, Ops. Atty. Gen. 1945-46, page 269 [[to John T. Welsh, Prosecuting Attorney, Pacific County on July 17, 1945]], the following observation was made:

            ". . . The power to declare an act constitutional or unconstitutional is vested solely in the courts.  Consequently, nothing can be gained by this office expressing an opinion as to the constitutionality of a statute.  A pronouncement of unconstitutionality would merely cause confusion and disorder among the administrative officers whose duty it is to give effect to the presumption of constitutionality which attaches to all laws until declared otherwise by a court of competent jurisdiction."

            B. You have raised ten particular points.  These points however, involve but two basic issues.  As point (1) and point (10) are concerned with the same problem, the boundaries of certain census tracts and legislative districts to the north of Seattle, we shall discuss them together after a consideration of points (2) through (9) which involve another matter.

            We shall quote the points raised by you and discuss them in order as follows:

            "(2) All census tract numbers used to define the respective senatorial and representative districts throughout the act are those numbers as they  [[Orig. Op. Page 3]] existed in 1950.  However, Section 56 provides that the census tracts be used as they existed as of January 1, 1956."

            A close examination of the text of the initiative will disclose that section 56 does not provide that the census tracts shall be used "as they existed as of January 1, 1956.  Rather, it provides that the boundaries of

            ". . . Census Tracts referred to herein are the same boundaries as are shown upon the official documents or maps maintained by or for the United States Bureau of the Census existing as of January 1, 1956, having the same corresponding numbers or names as given to Census political divisions."

            It is our understanding that the maps on file with the United States Bureau of the Census show (with certain exceptions which we will later discuss) the census tracts as they existed in 1950.  Therefore, in nearly all cases, the census tract boundaries were absolutely identical in 1950 and 1956.

            "(3) Section 16 establishes the fourteenth legislative districts as Yakima County census tracts 9, 10, 11, 18, 19 and Yakima (Emphasis ours.)  Thus, the western and southern city limits as they existed in 1950 form the boundary between the thirteenth and fourteenth legislative districts.  Since 1950 annexations of territory have been made to the city of Yakima that reach into census tracts 12 and 17 which are named in Section 15 of the act as part of the thirteenth legislative district.  As a further complication, official maps on file in my office reveal that areas of rural Yakima County are surrounded by said annexations in both census tracts 12 and 17."

            Keeping our discussion of your point (2) in mind, it will be seen that section 16 refers to census tract "Yakima."  A reference to the maps on file with the United States Bureau of the Census as of January 1, 1956, will disclose that census tract "Yakima" has the same boundaries as the city of Yakima had in 1950.  Though there have been annexations since 1950 to the city of Yakima, these have not affected the boundaries of the census tract "Yakima."  Thus, the western and southern city limits as they existed in 1950 still form the boundary between the 13th and 14th legislative districts.

             [[Orig. Op. Page 4]]

            "(4) Section 17 names the city of Sunnyside as part of the fifteenth legislative district and the city limits of Sunnyside as they existed in 1950 form the eastern and southern boundaries of the fifteenth legislative district.  Since 1950 annexations have been made to the city of Sunnyside both to the east and the south which extend the city limits into census tract 29 which Section 18 of the act establishes as a part of the sixteenth legislative district."

            The situation here is identical with that in Yakima.  Again, section 17 refers not to the city of Sunnyside, but to census tract "Sunnyside."  The city limits of Sunnyside as they existed in 1950 still form the boundary between the 15th and the 16th legislative districts.  The people in the annexed territory are still in the 16th legislative district.

            "(5) Section 51 defines the forty-ninth legislative district as census tract 10 of Clark County and the city of Vancouver.  Since 1950 annexations of territory have been made to the city of Vancouver reaching into census tracts 4, 9 and 12 which Section 19 of the act establishes as part of the seventeenth legislative district."

            The Vancouver situation is identical to that in Yakima and Sunnyside.  Again, you state that the forty-ninth legislative district is defined as including "census tract 10 of Clark County and the city of Vancouver."  (Emphasis ours.)  But a careful reading of section 51 reveals that the forty-ninth district is rather defined as including "the following census tracts in Clark County: 10 and Vancouver."  The use of the plural "tracts" would be meaningless, unless it were intended that Vancouver, as well as 10, should be considered as a census tract rather than as a city.

            Thus, the annexations since 1950 have had no effect on the census tract boundaries, or on the census tract maps on file with the census bureau in 1956.  Census tracts 4, 9, and 12 are still in the 17th district.

            "(6) Section 21 names the city of Hoquiam as part of the nineteenth legislative district and  [[Orig. Op. Page 5]] the northern city limits as they existed in 1950 border the twenty-fourth legislative district.  Since 1950, annexations of territory have been made to the northern city limits that now reach into Grays Harbor census tract 5 which Section 26 of the act establishes as a portion of the twenty-fourth legislative district."

            Once again, section 21 refers not to the city of Hoquiam, but to census tract "Hoquiam"; and the annexations since 1950 have had no effect on the boundaries of census tract "Hoquiam" which remains as it was in 1950.  The annexed territories, though now part of the city of Hoquiam, remain in census tract 5 and the 24th district.

            "(7) Section 13 provides that the city of Kennewick comprises a portion of the eleventh legislative district and the city limits as they existed in 1950 border the sixteenth legislative district.  Since 1950, territory has been annexed to the city of Kennewick that extends into Benton County census tract 16 which Section 18 of the act establishes as a portion of the sixteenth legislative district."

            Again, the boundaries of census tract "Kennewick" remain unchanged.  The annexed territory is still included in census tract 16 and the 16th legislative district.

            "(8) Section 42 names the city of Sedro-Woolley as part of the fortieth legislative district and the western city limits as they existed in 1950 border the forty-first legislative district.  Since 1950, territory has been annexed that extends into Skagit County census tract 12 which Section 43 of the act names as part of the forty-first legislative district."

            Census tract "Sedro-Woolley" retains the 1950 boundaries though the city of Sedro-Woolley has grown since that time.  Annexed territory extending into census tract 12 remains in 12 and in the 41st legislative district.

             [[Orig. Op. Page 6]]

            "(9) Section 43 names the city of Mt. Vernon as a part of the forty-first legislative district and the eastern city limits as they existed in 1950 border the fortieth legislative district.  Since 1950, territory has been annexed that extends into Skagit County census tract 14 which Section 42 names of the act establishes as a part of the fortieth district."

            Census tract "Mt. Vernon" remains as it was in 1950.  Territory annexed to Mt. Vernon is still included in census tract 14 and in the 40th district.

            As we have previously noted, the issue raised by your point (1) and that raised by point (10) involve the same problem and are best discussed together.

            Your paragraph (1) reads as follows:

            "(1) The census tracts as defined in Section 56 were created for the purpose of taking the 1950 Federal census and subsequent censuses.  Original numbers were assigned and legal descriptions written for each census tract.  Since 1950 twenty-three of the census tracts in King County have been assigned new numbers.  In one instance, the boundaries of a census tract affecting the boundaries of three legislative districts have been changed.  However, no changes have been made in the legal descriptions of any census tract as originally defined.  This situation is described in detail under Paragraph 10 following."

            Your paragraph (10) reads as follows:

            "(10) As mentioned in Paragraph 1, a number of census tracts have been renumbered.  This occurs in the forty-fifth and forty-sixth legislative districts.  In 1950 only a portion of the forty-sixth legislative district fell into the city limits of Seattle.  Since 1950, the entire district lies within the city limits.

             [[Orig. Op. Page 7]]

            "Section 48 defines this legislative district as follows:

            "'Forty-sixth‑-the following census tracts in King County: 90, 91, 92, 93, 94, 95, 96, 97, 105, 106, 107, and 108, and the following census tracts in the city of Seattle: C-5, D-1, D-4, D-7, D-8, D-9, D-10, D-11, and D-12.'"

            What occurred here may seem at first to present a more complex problem. Subsequent to 1950, the city of Seattle annexed some territory north of town.  After this annexation had been made, the census tract numbering system within the territory concerned was changed.  Census tracts which had formerly been identified by a number series (105, 106, etc.).  Also absorbed within this T series was a tract formerly numbered C-5.

            In one instance the boundaries of certain tracts were changed when the T series was adopted.  Under the old numbering system, Tracts 105 and C-5 formed a block.  Under the new numbering system, the tract boundaries within this block have been altered so that the area which formerly included 105 and C-5 now includes two differently shaped tracts called T-4 and T-5.  The external boundaries of the block remain the same, however.

            It is of particular importance to note that these changes had no effect on the boundary of any legislative district.  They were entirely internal.  Under either the old or the new numbering system, the boundary of the 46th district runs south on Meridian Avenue as far as 85th Street; thence east on East 85th Street as far as Roosevelt Way; and thence south on Roosevelt Way as far as East 65th Street.

            We have gone into this matter in such detail because of the allegations in your letter that "the boundaries of a census tract affecting the boundaries of three legislative districts have been changed.  "Our study of the question has convinced us that this does not appear to be the case.

            However, the whole problem can be solved in a much simpler fashion.  By the terms of the initiative itself, it is unnecessary to consider the new T numbering system at all.  The initiative refers to the old numbering system, under which the tracts involved were numbered 104, 105, etc. and C-5.  The maps on file with the bureau of the census in 1956 (which section 56 of the initiative establishes as the standard which must be followed)  [[Orig. Op. Page 8]] plainly show both the old numbering system and the new numbering system, the old boundaries and the new boundaries.  With knowledge only of the old numbering system, one can check the provisions of the initiative against the relevant map, and determine instantly not only where the boundary of each legislative district lies, but where each census tract boundary is located as well.

            In a later paragraph of your letter, you point out that there are "flaws" existing through the naming of state highways as boundaries of certain census tracts, and that since 1950 some of these highways have been relocated.  You then point out that the boundaries concerned were not boundaries of legislative districts, which, of course, renders the problem of no consequence.  However, a further answer would be that even if the boundaries of legislative districts had been changed because a road was moved, the original boundaries lying along the former right of way would remain the census tract boundaries.

            In conclusion, you suggest that you have been advised that it will be impossible for your office and local election officers to conduct the 1958 general election for those districts in which electors reside in two legislative districts.

            Without detailed information concerning just how this impossibility will arise, we cannot discuss this question further, other than to suggest that as we presently understand the initiative, there will be no situation in which electors "reside in two legislative districts."  It would seem to us that in the 1958 elections the boundaries of the new districts will control for those districts in which elections are, by terms of section 1 of the initiative, to be held.

            C. In response to your third inquiry as to how you should administer the act, executive officers of the state must assume that the law which they are required to administer by the State Constitution is valid, and they must, therefore, attempt in every way possible to administer the law to the best of their ability.

            This is emphasised in many of the opinions previously cited.  A representative comment will be found in Ops. Atty. Gen. 1891-92, page 116,  [[Orig. Op. Page 9]] where the attorney general, in declining to express an opinion concerning the constitutionality of a duly enacted law, observed as follows:

            ". . . The only safe course for executive officers to pursue in such cases is to assume that every law which they find upon the statute books, and the provisions of which it is their duty to administer, is valid and constitutional until its invalidity has been established by the judgment of some court competent to render and enforce a final and effective judgment."

            We are aware of the fact that putting Initiative Measure No. 199 into effect will be a difficult job for your office.  It is probable, however, that a successful reapportionment could not be carried out without this being the case.  It can be seen that the mere fact that a law may be difficult to administer does not render it any less the law.  We are aware too that as you turn to the administration of this initiative, other problems will arise, the scope and extent of which are not immediately observable. When such problems arise please feel free to contact us.

Very truly yours,


JOHN J. O'CONNELL
Attorney General

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