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AGO 1954 No. 365 - December 17, 1954
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Don Eastvold | 1953-1956 | Attorney General of Washington

VETERANS' RE‑EMPLOYMENT REEMPLOYMENTRIGHTS UNDER FEDERAL AND STATE LAW

The Federal law providing for veterans' re‑employment reemploymentis controlling when it conflicts with the provisions of a State law on the same subject.

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                                                               December 17, 1954

Honorable Hugh H. Evans
Prosecuting Attorney
Spokane County Courthouse
Spokane, Washington                                                                                                              Cite as:  AGO 53-55 No. 365


Attention:  !ttRobert J. McNichols

            Civil Deputy Prosecuting Attorney

Dear Sir:

            We have previously acknowledged your request for our opinion on veterans' re‑employment reemploymentbased on the following factual background:

            A railroad employee requested and obtained a leave of absence from his employer for the purpose of enlisting in the Coast Guard on September 7, 1948.  Prior to the expiration of the leave of absence, the employee requested an additional six years' leave to re‑enlist reenlist.  This refused, but one year was granted.  Upon leaving the Coast Guard on September 7, 1954 (after six years' absence from his employment) the employee formally applied for reinstatement.  His application was denied on the grounds that the Federal law relative to veterans' re‑employment reemploymentguaranteed re‑employment reemploymentonly if the employee confined his service to a period of four years or less; and that the Washington State law, which contains no time limitations in this respect, was not controlling.

            Your questions are as follows:

            (1) Under the foregoing facts, is this veteran entitled to re‑employment reemploymentunder chapter 73.16 RCW of the Revised Code of Washington as amended, having been away from his employment from September of 1948 to October of 1954, and  Orig. Op. Page 2 having voluntarily re‑enlisted reenlistedin the service during that period?

            (2) if he is entitled to re‑employment reemploymentunder the Washington Statute, is the four-year limitation contained in the federal statute a bar to a successful action by this veteran against the railroad company, his former employer?

            In our opinion both of the above questions must be answered in the affirmative.

                                                                     ANALYSIS

            First, we believe that under the provisions of chapter 73.16 RCW and specifically RCW 73.16.033 and RCW 73.16.035, subject veteran, after six years in Armed Forces, would be entitled to re‑employment reemploymentwith the railroad, provided that he met the other eligibility requirements of the act.  No provision is made in the above cited law which places any restriction on the time which a veteran spends in the service of his country.  Neither is the fact that he voluntarily re‑enlisted reenlistedduring the six years a bar to his re‑employment reemploymentunder the Washington act.  The state legislature has remained silent on both points.         However, the provisions of the Act of Congress dealing with this question are specific.  The pertinent provisions of the Universal Military Training and Service Act, U.S. Code, Title 50, War and National Defense, Appendix, Section 459 (g) (1), are as follows:

            "Any person who, subsequent to June 24, 1948, enlists in the Armed Forces of the United States (other than in a reserve component) and who serves for not more than four years (plus any period of additional service imposed pursuant to law) shall be entitled upon release from service under honorable conditions to all the re‑employment reemploymentrights and other benefits provided for by this section in the case of persons inducted under the provisions of this title."

             Orig. Op. Page 3

            Thus, it is evident that under the provisions of the above quoted Federal enactment, subject veteran, who enlisted subsequent to June 24, 1948, would not be entitled to re‑employment reemploymentas a matter of right, because he served more than four years in the Armed Forces.

            The Federal and state acts are obviously in conflict; hence the answer to your question can be found by determining whether the Act of Congress prevails over the state statute.

            There is a wealth of authority to the effect that the Federal law is paramount under these circumstances, the ultimate source of which can be found in the Constitution of the United States, Article 6, section 2, which states in part:

            "This Constitution, and the laws of the United States which shall be made in pursuance thereof; * * * shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any state to the contrary notwithstanding."

            The Constitution of the State of Washington contains this provision, Article 1, section 2:

            "* * * The Constitution of the United States is the supreme law of the land."

            Since an Act of Congress is made in "pursuance" of the United States Constitution, such an Act, constitutionally passed, becomes a part of the supreme law of the land in connection with the Federal Constitution itself.  In speaking of a conflict between Federal and state laws, in the case of theCalifornia State Board of Equalization v. Goggin, 191 F. (2d) 726, 27 A.L.R. (2d) 1211, the United States Court of Appeals said:

            "* * * Any such conflict would necessarily entail an application of the fundamental doctrine that laws enacted pursuant to power delegated to the United States under the Constitution are the supreme law of the land, and state laws inconsistent therewith are to that extent invalid.  McCulloch v. Maryland, 1819, 4 Wheat. 317, 17 U.S. 316 4 L.Ed. 579.  * * *"

             Orig. Op. Page 4

            One of the United States Supreme Court's opinions regarding this question resulted from a case arising in this state in 1946 (Case v. Bowles, 66 S.Ct. 438, 327 U.S. 92, 90 L.Ed. 552) wherein the court concluded that when authorized congressional legislation conflicts with a state law, which would otherwise be valid, the constitutional provision that the Constitution and laws in pursuance thereof shall be the supreme law of the land, "marks the course for courts to follow."

            Similar authority may be found in Sola Electric Co. V. Jefferson Electric Co., 317 U.S. 173, 176, 63 S.Ct. 172, 173, 87 L.Ed. 165:

            "* * * It is familiar doctrine that the prohibition of a federal statute may not be set at naught, or its benefits denied, by state statutes or state common law rules."

            InState v. Tsutomu Ikeda, 143 P. (2d) 880, the court said:

            "It is elementary that where both the Congress of the United States and a state legislative act have reference to the same subject matter, the action of the congress is controlling in case of conflict.  Commonwealth v. Nickerson, 236 Mass. 281, 128 N.E. 273-278, 10 A.L.R. 1568;Northern Pac. R. Co. v. State of North Dakota ex rel. Langer, 250 U.S. 135, 150 39 S.Ct. 502, 63 L.Ed. 897."

            Thus, it is our conclusion that where conflict arises, as in the case before us, the Federal law must necessarily be paramount, and the four-year limitation  Orig. Op. Page 5 contained in the Federal act is a bar to this veteran's re‑employment reemploymentby the railroad company, irrespective of the provisions of the Washington act.

            We hope the foregoing will be of assistance to you.

Yours very truly,

DON EASTVOLD
Attorney General


PAUL J. MURPHY
Assistant Attorney General

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