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AGO 1955 No. 93 - June 09, 1955
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Don Eastvold | 1953-1956 | Attorney General of Washington

STATUTES ‑- CONSTRUCTION

Adoption of a statute by reference does not include subsequent amendments thereto unless the legislature either expressly or by strong implication so says.

Failure to adopt an amendment to an existing act indicates a legislative intention to adhere to the existing act.

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

                                                                    June 9, 1955

The Honorable J. A. Kahl, Acting Director
State Department of Health
Smith Tower
Seattle 4, Washington                                                                                                                Cite as:  AGO 55-57 No. 93

Dear Dr. Kahl:

            Your recent letter, which has been previously acknowledged, requests our opinion as to whether or not Chapter 70.40 RCW authorizes your department to carry out a survey to determine the need for:  (1) treatment or diagnostic centers; (2) nursing home facilities; (3) chronic disease hospitals; and (4) rehabilitation centers, and you further request our opinion as to whether such chapter authorizes you to administer those phases of the hospital survey and construction act.

                        CONCLUSION

            In our opinion Chapter 70.40 RCW does not authorize your department to carry out a survey or to administer those phases of the hospital survey and construction act in reference to 1, 2 and 4 above.

             [[Orig. Op. Page 2]]

                                                                     ANALYSIS

            We think it will be helpful and in the interest of clarity if we review, to a limited extent at least, the legislative history of the Federal and Washington acts involved.

            On August 13, 1946, there was approved Public Law 725 of the 79th Congress entitled the "Hospital Survey and Construction Act" being title 42 U.S.C., § 291 to 291n inclusive.

            This act allowed the Surgeon General of the United States to make grants of funds appropriated to those states making application if the states applying fulfilled certain conditions precedent, among which were: That there must be a single state agency designated as the sole agency to carry out the survey and construction purposes of the federal act; that there must be a state advisory council composed of certain classes of groups and individuals; and that machinery for the making of inventories and surveys must be set up in conformity with the federal act and regulations thereunder.

            The Washington legislature in 1949, by Chapter 197, Laws of 1949, Chapter 70.40 RCW, complied with the above‑described conditions precedent, among others, and designated the State Department of Health as the sole agency referred to in the federal act.  It is interesting and we think significant that RCW 70.40.020 contains the following language under the general heading "Definitions":

            "'The federal act' means public law 725 of the 79th congress, approved August 13, 1946, entitled the hospital survey and construction act;"

            In 1954 there was passed by congress and approved the medical facilities survey and construction act of 1954, being title 42 U.S.C. § 291o to 291v inclusive, which added certain sections to the previously existing federal act.  The added sections provided for an inventory of and a survey of the need for the following types of medical facilities:  (a) diagnostic or treatment centers; (b) hospitals for the chronically ill or impaired; (c) rehabilitation  [[Orig. Op. Page 3]] facilities; and (d) nursing homes.

            These added sections provided for further federal grants under much the same conditions as previously described under the original federal act.

            In 1955 at the request of the State Department of Health there was introduced in the Washington legislature Senate Bill 257.  This bill sought to amend the 1949 state act by including therein the term "medical facility" which was defined as "diagnostic or diagnostic and treatment centers, rehabilitation facilities, and nursing homes as those terms are defined in the federal act."  It was, of course, the obvious purpose of Senate Bill 257 to allow the State Department of Health as the "sole state agency" to apply for federal grants under the expanded federal program.  Senate Bill 257 was not passed by the 1955 Washington legislature.

            In our opinion the above factual situation and your inquiries necessitate the consideration of two legal questions.  If either of the two questions are answered in the negative, the answers to your inquiries must also be in the negative.  The two questions are:

            1.         Was it the intent of the Washington legislature in 1949 in its adoption of the federal act by reference to also adopt any subsequent amendments thereto?

            2.         Would the failure to adopt Senate Bill 257 evidence a legislative intention not to broaden the state act so as to allow the "sole state agency" to apply for federal grants under the broadened federal program?

            In answer to Question No. 1, the general rule on the subject is perhaps best expressed by Sutherland on Statutory Construction, 3rd Edition, Volume 2 at pages 548 and 549, Sec. 5208, wherein it is said:

            "A statute of specific reference incorporates the provisions referred to from the statute as of the time of adoption without subsequent amendments, unless the legislature has expressly or by strong implication shown its intention to incorporate subsequent  [[Orig. Op. Page 4]] amendments within the statute.  In the absence of such intention subsequent amendment of the referred statute will have no effect on the reference statute."

            Another general expression is found in 168 A.L.R. 627 at page 636 wherein the editor says:

            "As a general rule, the subsequent modification or repeal of a statutory provision adopted by another statute through incorporation by reference is inoperative so far as the adopting statute is concerned, in the absence of express or implied legislative intent to the contrary.  Where a particular statute is incorporated into another statute by specific or descriptive words, the presumption is that the legislature did not intend that modification or repeal of the adopted statute should affect the adopting statute."

            There can, of course, be no question that the above quotation from RCW 70.40.020 is a specific descriptive reference.  While it is true that most of the cases found in support of the above general citations are cases in which an entire act or a portion thereof is made a part of the act to be construed by incorporation therein, we do not believe that the rule should be different nor that the statute under consideration is any the less a reference statute.  In the case ofRoehl v. Public Utility Dist. No. 1, 43 Wn. (2d) 214 at page 225 our Supreme Court speaking en banc through Justice Hamley said:

            "Reference statutes are those which refer to, and by reference adopt wholly or partially, pre‑existing statutes, or which refer to other statutes and make them applicable to an existing subject of legislation."  (Emphasis ours)

            Our Supreme Court has followed the general rule above referred to in the case ofPacific First Federal Savings and Loan Association v. Pierce County et al., 27 Wn. (2d) 347 at page 355.  Our Court said:

             [[Orig. Op. Page 5]]

            "The general rule is that, when a statute is adopted by specific descriptive reference, the adoption takes the statute as it exists at that time, without subsequent amendments; but, when the language of the adopting act evidences legislative intent to include subsequent amendments, courts will give effect to that intent, and the adopted act, and the amendments thereto, or changes therein, will be held to be within the meaning of the adopting act and to govern the subject matter thereof."

            It thus becomes apparent that unless Chapter 70.40 RCW contains either express or strong inferential language indicating a legislative intent to include federal amendatory legislation within its purview that the answer to Question No. 1 above set out must be in the negative.  An examination of such chapter does not reveal any express language indicating a legislative intent to include subsequent amendments to the federal act.  The usual method is, of course, the one adopted by your Department in Senate Bill No. 257 where the federal act was referred to specifically and then the words "as amended, or as hereafter amended by congress;" were added.  A consideration of the entire act does not reveal to us any language that in our opinion raises a strong inference that the legislature intended to adopt any amendments to the federal act.  It is true that in many sections of chapter 70.40 RCW there is general language which if treated in its broadest sense might give rise to an inference of such intention.

            For instance, in RCW 70.40.020 there is included the phrase "other types of hospitals."  It might be argued that such phrasing included the medical facilities added by the 1954 federal act.  We are, however, not impressed with such argument for the reason that the federal act itself definitely segregates "hospitals" within the 1946 act and "facilities" within the sections added to such act by the 1954 amendments.  Thus, as above indicated, we are unable to find any strong inference from the legislative language used in chapter 70.40 RCW.

            In answer to question No. 2, the general rule on subject is found in 50 Am.Jur., page 322, Sec. 330, wherein the editor says:

            "Similarly, it has been held that rejected amendments to an act of the legislature may properly  [[Orig. Op. Page 6]] be considered in an effort to determine the legislative intention.  Such rejection of an amendment has been regarded as a circumstance to be weighed along with other circumstances when the choice is nicely balanced."

            While it is true that there is some authority to the contrary our own Court has followed the general rule.  InState ex rel Taylor v. The Superior Court, 2 Wn. (2d) 575 at page 587, our Court said:

            "The evidence discloses that, during the legislative sessions of 1935, 1937, and 1939, bills were introduced which provided for the creation of a county purchasing department under the supervision of the board of county commissioners.  * * * Each of these bills failed of passage.  Failure ineach instance manifested a legislative intent and desire that the counties continue the established practice of having each officer purchase the supplies necessary for the proper conduct of his office."

            Thus it is our opinion, regarding treatment and diagnostic centers, nursing home facilities and rehabilitation centers, that Chapter 70.40 RCW does not authorize either surveys for or the administration of those phases of the program under the federal hospital survey and construction act.  So far as chronic disease hospitals are concerned, inasmuch as such hospitals are referred to specifically in RCW 70.40.020, a survey may be made as to the need for those hospitals and the administration necessary could be carried out if the federal act is construed by the Surgeon General or other responsible officer so as to allow a state to apply for a grant for only a portion of the entire program.

Very truly yours,

DON EASTVOLD
Attorney General

JOHN D. THOMAS, JR.
Assistant Attorney General

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